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NOT TO BE PUBLISH ED OPINION
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RENDERED : FEBRUARY 21, 2008
NOT TO BE PUBLISHED
,suitirmt Court Of Al~,A_
2007-SC-000114-WC
BURNWELL ENERGY COMPANY . APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. 2006-CA-001296-WC
WORKERS' COMPENSATION NO. 05-00979
LARRY SMITH ;
HON . JAMES L . KERR,
ADMINISTRATIVE LAW JUDGE ;
AND WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
KRS 342.165(1) requires the compensation for a work-related injury to be
reduced by 15% if the accident causing the injury results in any degree from the
worker's intentional safety violation .
An Administrative Law Judge (ALJ) determined that the claimant did not appear
to have consciously disregarded the employer's safety policies by removing his safety
goggles -momentarily, to wipe his brow, and refused to reduce his compensation for the
work-related eye injury that resulted . The Workers' Compensation Board affirmed and
the Court of Appeals affirmed the Board . Appealing, the employer continues to assert
that the evidence compelled a finding the injury resulted from the claimant's "conscious
wrongdoing." We affirm.
The claimant worked in the defendant-employer's coal mine as a belt man . At
issue was an injury that he sustained to his right eye on June 18, 2004. The accident
occurred when the claimant and a co-worker were making a belt splice . While the co
worker was hammering on a steel pin, the claimant removed his safety goggles
momentarily and a piece of metal struck him in the eye. The injury required multiple
surgeries and caused permanent damage to claimant's vision. The claimant returned to
work when he recovered but quit a few months later due to the combined effects of a
number of medical conditions. Relying on the employer's medical expert, the ALJ
awarded income benefits that were based upon a 16% permanent impairment rating
and doubled under KRS 342.730(1)(c)2 .
The contested issues included the employer's request for a 15% reduction in the
claimant's benefits under KRS 342.165(1) . The claimant testified that normally he wore
his safety goggles at all times and that it was especially important to do so when
making belt splices "because you're always hitting metal." He admitted that his eye
would not have been injured if he had not removed his safety goggles. He also
admitted that he knew the company required all workers to wear safety goggles at all
times and instructed them regarding the practice during safety training. He explained at
the hearing that he was wearing his safety goggles at the time of the injury but that they
had fogged up, so he removed them momentarily to clean them and wipe sweat from
his face. At that moment, a piece of steel hit him in the eye.
The ALJ found the claimant to be a credible witness. Noting that he was wearing
his safety goggles at the time of the injury and merely took them off to wipe his brow,
the ALJ determined that he did not appear to have consciously disregarded the
employer's safety policies . On that basis, the AU determined that KRS 342.165(1) did
not apply and refused to reduce the claimant's benefits .
The Board noted that substantial evidence supported the ALJ's decision . It also
noted that the evidence did not compel a conclusion that the claimant intended to fail to
use a safety appliance that the employer furnished or intended to disobey a safety
provision . The Board was not convinced that the momentary lapse in wearing safety
goggles meant, ipso facto , that the claimant acted with the requisite intent. The Court
of Appeals affirmed, noting that the claimant's testimony constituted substantial
evidence that he did not intentionally fail to wear safety goggles .
KRS 342 .165(1) states as follows:
If an accident is caused in any degree by the intentional
failure of the employer to comply with any specific statute or
lawful administrative regulation made thereunder,
communicated to the employer and relative to installation or
maintenance of safety appliances or methods, the
compensation for which the employer would otherwise have
been liable under this chapter shall be increased thirty
percent (30%) in the amount of each payment. If an accident
is caused in any degree by the intentional failure of the
employee to use any safety appliance furnished by the
employer or to obey any lawful and reasonable order or
administrative regulation of the commissioner or the
employer for the safety of employees or the public, the
compensation for which the employer would otherwise have
been liable under this chapter, shall be decreased fifteen
percent 15%) in the amount of each payment. (emphasis
added).
KRS 342.285 designates the AU as the finder of fact in workers' compensation
claims, with the sole authority to weigh the evidence . Thus the ALJ, rather than the
Board or a reviewing court, has the sole discretion to judge the credibility of witnesses
and to determine the quality, character, and substance of evidence. A party who fails to
convince the ALJ must show more on appeal than the existence of evidence that would
have supported a favorable decision . Special Fund v. Francis , 708 S.W.2d 641, 643
(Ky. 1986), explains that when substantial evidence supports a finding that favors the
party with the burden of proof, the finding is reasonable and may not be disturbed on
appeal . But when the party with the burden of proof fails to convince the ALJ, it must
show on appeal that overwhelming evidence compelled a finding in its favor, in other
words, that the decision was unreasonable under the evidence.
Because the employer sought a favorable finding under KRS 342.165(1), it had
the burden to show that the accident resulted in some degree from the claimant's
intentional failure to use his safety goggles. The claimant's testimony provided the only
evidence on the matter. The ALJ found it to be credible and determined that he did not
consciously disregard the employer's policy. Although the employer asserts that the
evidence compelled a finding that the claimant knew the employer's policy and "made a
conscious decision" to remove his safety glasses, no evidence contradicted the
claimant's version of the events. Under the circumstances, we are not convinced that
the Board and the Court of Appeals erred in refusing to disturb the decision .
The decision of the Court of Appeals is affirmed .
All sitting . All concur.
COUNSEL FOR APPELLANT,
BURNWELL ENERGY COMPANY:
A. STUART BENNETT
JACKSON KELLY, PLLC
175 EAST MAIN STREET, SUITE 500
P.O. BOX 2150
LEXINGTON, KY 40588-9945
COUNSEL FOR APPELLEE,
LARRY SMITH:
DENNIS JAMES KEENAN III
79 MALL ROAD
SUITE C
SOUTH WILLIAMSON, KY 41503