IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO JHE RULES OF CIVIL PROCEDURE
PROMULGATED BY TH; SUPREME COURT, CR 76~28(4)(C),
THIS OPINION IS NOTrTO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
. UNPUBLISHED KENTUCKY APPELLATE DECISIONS,·
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: JUNE 15, 2017
~uprttttt filnurl nf
. .· 2016-SC-000466-WC ·
,+m~l
[Q) ~lF ~1!,'11 (I,.;, /k/,.,6,,, ix..
READY ELECTRIC APPELLANT
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2015-CA-001816
V. WORKERS' COMPENSATION BOARD
NO. 11-WC-80389
THOMAS SCHARRINGHAUSEN; APPELLEES
HON. JOHN B. COLEMAN,
'ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
(
On July 25, 2011, Thomas Scharringhausen (Thomas), sustained serious
injuries to his leg while working as a commercial electrician at Ready Electric
(Ready). His injuries occurred while he was repairing a six-foot exhaust fan
located on the roof of a two-story building. His supervisor, Mike Phillips, was a
journeyman electrician who failed to propi;rly secure the lock-out/tag-out
· device on the electrical .circuit that would disconnect the fan from electricity so
that it could.be repaired. During the course of his repairs, a belt Thomas was
replacing inadvertently contacted the ignition switch and engaged the fan.
Thomas' leg was pulled into the fan, causing multiple fractures to his .proximal
and distal calcaneus, complete disruption of the Achilles' tendon, and partial
evulsion of the left heel.
Jeffrey Callam, the safety director at Ready, investigated the incident and
determined that is was caused by "not placing the Lock-out/tag-out materials
on the motor's switch prior to beginning work." Callam further determined
that this violated the company's ru)es and an OSHA regulation. 29 CFR
1910.147. At his deposition, Callam testified that as the supervisor on the
scene, Phillips was responsible for engaging the lock-out/tag-out mechanism,
and that he failed to do so in this instance.
Thomas filed his Form 101 in which he described the July 25, 2011
incident. After reviewing the evidence of record, the Administrative Law Judge
(AW) awarded Thomas temporary total disability (TTD) benefits, permanent
partial disability (PPD) benefits, and medical benefits. The AW also determined
that Thomas was entitled to enhanced benefits pursuant to KRS 342.165(1).
Ready appealed several issues to the Workers' Compensation Board
(Board), which remanded the case to the AW for additional findings as to
whether the AW's decision was premised on an intentional safety violation, or
violation of a general duty. On re·mand, the AW made specific findings that the
violation was intentional under KRS 342.165(1). The Board affirmed the AW's
decision. Ready appealed to the Court of Appeals, which unanimously affirmed
)
the Board's decision. Ready now appeals to this Court. Having reviewed the
record and the law, we affirm the Court of Appeals.
2
Standard of Review
In order to reverse, we must determine that the AW's findings were "so
unreasonable under the evidence that it must be viewed as erroneous as a
matter of law." KRS 342.285; Ira A. Watson Department Store v. Hamilton, 34
S.W.3d 48, 52 (Ky. 2000). This is clearly a difficult standard to satisfy.
Analysis
KRS 342.165(1) allows for a 3~% enhancement of benefits and provides
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 shaJl 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 fot which the employer
would otherwise have been liable under this chapter shall be
decreased fifteen percent (15%) in the amount of each payment.
In applying this statute, the AW specifically held:
[I]t is clear the plaintiffs supervisor disregarded the safety
procedure and reengaged the electrical supply while the plaintiff
was continuing to work in the dangerous position. To the
undersigned this is a clear case for the application of the 30%
penalty provision noted above.
Ready argues that any liability resulting from Phillips' failure to comply with
the lock-out/tag-out mechanism cannot be imputed to Ready as the employer
under KRS 342.165 because Ready specifically trained its employees on proper
lock-out/tag-out procedures.
3
We addressed a similar issue in Chaney v. Dags Branch Coal Co., 244
S.W.3d 95 (Ky. 2008). Therein, we held that an employer's intent is presumed
if there is a failure to comply with a specific statute or regulation. Id. at 101.
We specifically concluded that "[i]f the violation 'in any degree' causes a work-
related accident, KRS 342.165(1) applies." Id. The Court also addressed the
purpose of KRS 342.165 as follows:
KRS 342.165(1) is not penal in nature, although the party that
pays more or receives less may well view it as such. Instead, KRS
342.165(1) gives employers and workers a financial incentive to
follow safety rules without thwarting the purposes of the Act by
removing them from its coverage. Id.
In its opinion affirming the AW, the Board noted that "we are not without
sympathy for an employer who is penalized despite making every good faith
effort to ensure the safety of its employees through policy, regulation, safety
meetings, and safety equipment." And while we echo this sentiment, it is
undisputed that Phillips failed to comply with the lock-out/tag-out procedures
described in 29 CFR 1910.147. This failure clearly caused Thomas' injury.
Thus, KRS 342.165(1) and Chaney authorize the AW's findings in this case,
and we believe that substantial evidence supports 'the AW's decision.
Conclusion
For the foregoing reasons, we hereby affirm the Court of Appeals'
decision, affirming the decisions issued by the Board and the AW.
All sitting. All concur.
4
COUNSEL FOR APPELLANT:
Rodney Joseph Mayer
U'SELLIS & KITCHEN PSC
COUNSEL FOR APPELLEE, THOMAS SCHARRINGHAUSEN:
Stuart E. Alexander, III
STUART ALEXANDER, PLLC
5