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RENDERED: FEBRUARY 19, 2015
NOT TO BE PUBLISHED
,Suprrntr &turf of (4,4rttfuritv
2014-SC-000166-WC
ALICIA HOWETH-ENGLAND APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2013-CA-000933-WC
WORKERS' COMPENSATION NO. 10-78249
KENTUCKY DEPARTMENT OF
CORRECTIONS; RAFAEL PRIETO, M.D.;
HONORABLE ALISON E. JONES,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Alicia Howeth-England, appeals from a Court of Appeals
opinion which affirmed a decision of the Workers' Compensation Board that
denied her enhanced benefits due to a safety violation. Howeth-England
argues that she is entitled to the, safety violation penalty enhancement because
her employer failed to alert her to the existence of or fix a metal plate located
on the floor which caused her to fall. For the below stated reasons, we affirm
the Court of Appeals.
Howeth-England was employed by the Kentucky Department of
Corrections ("DOC") as a corrections officer at the Western Kentucky
Correctional Complex ("WKCC"). On August 29, 2010, while walking through a
prison dormitory, she stubbed her toe on a metal plate in the floor, causing her
to fall and injure her back. As a result of her fall, Howeth-England has
undergone two lumbar hemilaminotomy surgeries at L5-S 1. She has not
returned to work. Howeth-England claims she is physically unable to return to
employment as a corrections officer and that she cannot work full time due to
back pain and spasms in her lower back and left leg. She filed for workers'
compensation.
As a part of the claim, James Purdy, a safety specialist at WKCC,
testified. He stated that the metal plate, which Howeth-England tripped on,
was a part of a dormitory which was constructed more than twenty years ago.
The plate rose approximately three-eighths of an inch above the floor and was a
brown color approximately a shade darker than the floor. Since the accident,
the plate has been painted yellow and its edges ground down. Purdy was
unaware of any prior injuries caused by the plate or any documented
complaints about it.
Howeth-England also testified and stated that the area where the plate
was located was "kind of dark." She was unaware the plate existed until she
fell. She believed the metal plate was approximately twenty inches by twenty
inches.
After reviewing the evidence, the Administrative Law Judge ("ALI") issued
an opinion, order, and award granting Howeth-England temporary total
disability benefits and partial permanent disability ("PPD") benefits based on a
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twenty percent whole person impairment rating. The ALJ also found the metal
plate constituted a safety violation pursuant to KRS 338.031 and awarded
Howeth-England a thirty percent increase in her PPD benefits pursuant to KRS
342.165(1).
DOC filed a petition for reconsideration' requesting additional findings of
fact on the alleged safety violation and arguing that the safety violation penalty
should not be applied. The ALJ affirmed her previous opinion but did amend it
to include the following additional findings:
[DOC] relies on the fact that no one had previously complained
about or been injured by the plate in the floor. The ALJ finds that
this fact is not sufficient to avoid liability for a safety violation
penalty. An employer should not be able to avoid taking corrective
measure to ensure the safety of its employees until one of its
employees sustains an injury. Moreover, the ALJ does not believe
that an employer should be permitted to remain "willfully blind" to
obvious hazards that its employees might encounter in the
workplace.
While certain hazards might not be easily ascertainable, and
therefore, not sufficient to give rise to a finding of an intentional
violation, the A1.0 found that this case presented the type of safety
violation that even a layperson could easily recognize. In other
words, it is common sense that an unmarked, raised plate in a dim
walkway poses a tripping hazard.
The DOC appealed the ALJ's decision to apply the safety violation penalty
to the Board. The Board agreed with the DOC that the safety violation penalty
should not apply and reversed the ALJ. In so doing, the Board stated:
Here, the record indicates [DOC] could not have known the metal
plate posed any kind of a safety hazard before August 29, 2010.
To permit the factual scenario in the case sub judice to justify a
safety penalty would broaden the application of the statute to
1 Howeth-England also filed a petition for reconsideration which is not pertinent to
this appeal.
3
include factual situations not contemplated by the Supreme Court
and the legislature.
Howeth-England appealed to the Court of Appeals arguing that the Board erred
as a matter of law by substituting its own judgment for that of the ALJ's as to
the weight of evidence on a question of fact. The Court of Appeals affirmed,
and this appeal followed.
As an initial matter, we note that the ALJ has sole discretion to evaluate
the weight of the evidence presented. Whittaker v. Rowland, 998 S.W.2d 479,
481 (Ky. 1999). On appeal, the Board's review is limited to determining
whether the evidence is sufficient to support the findings of the ALJ, or if the
evidence compels a different result. Western Baptist Hospital v. Kelly, 827
S.W.2d 685, 687 (Ky. 1992). The Court of Appeals is only required to reverse
the Board"if it overlooked or misconstrued controlling statutes or precedent, or
committed an error in assessing the evidence so flagrant as to cause gross
injustice' Id. at 687-688.
The first question which must be answered in this appeal is whether the
DOC violated the "general dutiesP provision of Kentucky's Occupation Safety and
Health Act, KRS 338.031(1). Then we must determine whether that violation
entitles Howeth-England to the enhanced safety violation benefits pursuant to
KRS 342.165(1).
I. THE DOC VIOLATED KRS 338.031(1)
KRS 338.031(1), Kentucky's general duties statute, states that, "Each
employer: (a) Shall furnish to each of his employees employment and a place of
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employment which are free from recognized hazards that are causing or are
likely to cause death or serious physical harm to his employees; (b) Shall
comply with occupational safety and health standards promulgated under this
chapter" A violation of KRS 338.031 occurs when the four-part test outlined in
Lexington-Fayette Urban County Government v. Offutt, 11 S.W.3d 598, 599 (Ky.
App. 2000), is satisfied. That test states that an employer is deemed to have
violated KRS 338.031 when:
(1) [a] condition or activity in the workplace presented a hazard to
employees; (2) [t]he cited employer or employer's industry
recognized the hazard; (3) [t]he hazard was likely to cause death or
serious physical harm; and (4) [a] feasible means existed to
eliminate or materially reduce the hazard.
Id. at 599 (quoting Nelson Tree Services, Inc. v. Occupational Safety and Health
Review Commission, 60 F.3d 1207, 1209 (6th Cir. 1995)).
Performing the Offutt test indicates that the DOC violated KRS
338.031(1). First, the raised metal plate upon which Itoweth-England tripped
presented a hazard to DOC employees. Not only did the metal plate rise almost
three-eighths of an inch above the floor, but it was also a color which was only
a shade different from the tile color and was located in an area of the dormitory
that was dimly lit. Second, a metal plate or any item which constitutes a
tripping risk for employees is a hazard which is, or should be, generally
recognized by employers. Third, the metal plate was a hazard which, while not
likely to cause death, can cause serious physical harm to anyone who trips
over it. This is evidenced by the serious injuries Howeth-England has suffered
in this matter. Finally, a feasible means existed to remedy the hazard that the
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metal plate represented. The DOC ground down the edges of the metal plate
and painted it yellow after Howeth-England's accident indicating that a means
existed to reduce the risk of tripping. Thus, the metal plate which Howeth-
England tripped over at WKCC satisfies the Offutt test, and accordingly
constituted a violation of KRS 338.031(1). However, as shown by the next
section,' a finding that the DOC committed a violation of the `general duties?'
provision of Kentucky's Occupation Safety and Health Act does not
automatically entitle Howeth-England to the safety violation enhancement.
II. THE DOC DID NOT INTENTIONALLY VIOLATE THE GENERAL
DUTIES STATUTE
A violation of KRS 338.031(1) can satisfy the requirement in KRS
342.165 that a"specific statute be intentionally ignored. However, not every
violation of KRS 338.031(1) is egregious enough to justify granting a safety
violation enhancement. Before the safety violation enhancement is applied it
must be shown that the employerIntentionally disregarded a safety hazard
that even a lay person would obviously recognize as likely to cause death or
serious physical harm!' Hornback v. Hardin Memorial Hospital, 411 S.W.3d
220, 226 (Ky. 2013).
Several cases have held that a violation of KRS 338.031(1) entitles a
claimant to receive the safety violation enhancement. In Apex Mining v.
Blankenship, 918 S.W.2d 225 (Ky. 1996), an employee was injured in an
accident caused by the defective condition of a road grader he was operating.
The safety violation enhancement was applied because It]here was substantial
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evidence that the employer was aware of the defective condition of the grader,
and it is apparent, even to the lay person, that a piece of heavy equipment
without breaks, with a decelerator that is not in the proper condition, and with
a throttle which is fastened in the wide open position creates a safety hazard."
Id. at 229.
The safety penalty also was applied for a violation of KRS 338.031(1) in
Brusman v. Newport Steel Corp., 17 S.W.3d 514 (Ky. 2000), when an employee
was crushed to death while riding on the side of a railroad car. The accident
occurred because there existed a "pinch point" between the car the employee
was riding and an adjoining railcar which had walls that bowed out
approximately two feet. The safety violation penalty was justified because, "(1)
an obvious hazard was created by the presence of railroad cars with bowed
sides; (2) complaints about such cars had been raised at a safety meeting a
month before the accident; and (3) workers routinely rode railway cars,
including the lead car without punishment." Id. at 520. Finally in Hornback,
411 S.W.3d at 227, where an employee was seriously injured by falling down
an elevator shaft due to a failed rescue attempt, the safety violation penalty
was applied because the employer, in attempting the rescue, did not "take any
prophylactic measures [to] prevent Hornback from suffering her ultimate fate of
falling into the open elevator shaft." Key to this holding was a finding that the
employer was made aware of the dangers of a poorly performed elevator rescue
and intentionally disregarded them.
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Comparing the facts of the present matter to prior case law, we cannot
find that the DOC committed an intentional violation of the general duties
,
statute. In the above cited cases, the employer was aware of the dangers which
ultimately caused the employee's severe injuries or death. However, the
employer in all of those cases decided to either disregard general safety
protocols or ignore obviously dangerous issues. In contrast, Purdy, the safety
specialist at WKCC, testified that the DOC was unaware of any prior injuries
caused by the plate during the dormitory's twenty year history or any
documented complaints about it by any employee. Based on this, and the fact
that uneven floors such as this are not a blatantly dangerous condition, the
DOC's failure to recognize that the plate could be a tripping hazard is not
egregious enough to find that an intentional violation of the general duties
statute occurred. Thus, Howeth-England is not entitled to enhanced benefits
for a safety violation.
For the above stated reasons we affirm the decision of the Court of
Appeals.
Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ.,
sitting. All concur.
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COUNSEL FOR APPELLANT,
ALICIA HOWETH-ENGLAND:
Rickie A. Johnson
Rodger Wayne Lofton
COUNSEL FOR APPELLEE,
KENTUCKY DEPARTMENT OF CORRECTIONS:
Kenneth Lance Lucas
Sarah C. Rogers
COUNSEL FOR APPELLEE,
RAFAEL PRIETO, M.D.:
Rafael L. Prieto, M.D., pro se
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Alicia Howeth-England v. Kentucky Department of Corrections
Combined Opinion