Ready Electric v. Thomas Scharringhausen

llleoRTANT NOTlcE
` NoT To BE PuBLlsHED 0PlNloN
THls 0PlNloN ls DEslGNATED ”NoT To BE PuBLlsHED."
PuRsuANT To JHE RuLEs oF clvlL PRocEDuRE
PRoMuLGATED BY TH§ s'uPREME couRT, cR 76-.28(4)(c),
THls 0PlNloN ls_ NoT”To BE PuBLlsHED AND sHALL NoT BE
clTED oR usED A-s BlNDlNG PREcEDENT lN ANY oTHER
cAsE lN ANY-couRT oF THls sTATE; HowEvER,
. uNPuBLlsHED l34
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 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.
In applying this statute, the ALJ specifically held:
[I]t is clear the plaintist 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
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:
-K‘RS 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 ALJ, 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 ALJ’s findings in this case,
and we believe that substantial evidence supports`the ALJ’s decision.
Conclusion
For the foregoing reasons, we hereby affirm the Court of Appeals’
decision, affirming the decisions issued by the Board and the ALJ. d
All sitting. All concur.
COUNSEL FOR APPELLANT:
Rodney Joseph Mayer
U’SELLIS & KITCHEN PSC
COUNSEL FOR APPELLEE, THOMAS SCHARRINGHAUSEN:
Stuart E. Alexander, III
STUART ALEXANDER, PLLC