D.W. Wilburn, Inc. v. Wade Massengill

RENDERED: MARCH 5, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1377-WC
D.W. WILBURN, INC. APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-17-01063
WADE MASSENGILL;
DAVIS BROTHERS ROOFING;
UNINSURED EMPLOYERS’ FUND;
and HON. MONICA RICE-SMITH,
ADMINISTRATIVE LAW JUDGE APPELLEES
AND NO. 2020-CA-1499-WX
WADE MASSENGILL CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-17-01063
D.W. WILBURN, INC.;
DAVIS BROTHERS ROOFING;
UNINSURED EMPLOYERS’ FUND;
and HON. MONICA RICE-SMITH,
ADMINISTRATIVE LAW JUDGE CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, KRAMER, AND LAMBERT, JUDGES.
KRAMER, JUDGE: An administrative law judge (“ALJ”) entered an order
denying Wade Massengill’s claims for an enhancement of his workers’
compensation benefits pursuant to KRS1 342.165 against both his employer –
Davis Brothers Roofing (“Davis Brothers”) – and his alleged “up-the-ladder”
employer, D.W. Wilburn, Inc. (“Wilburn”). Subsequently, the Workers’
Compensation Board (“Board”) vacated and remanded after determining the ALJ’s
factfinding and legal analysis insufficiently addressed Massengill’s claims.
In Appeal No. 2020-CA-1377-WC, Wilburn contends the Board’s
decision was erroneous for two reasons. First, Wilburn contends the Board
directed the ALJ to resolve an issue Massengill never raised (i.e., whether a KRS
342.165 enhancement to Massengill’s award could have been predicated upon a
1
Kentucky Revised Statute.
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violation, by Davis Brothers and Wilburn, of the “general duty” standard of
workplace safety set forth in KRS 338.031(1)(a)). Second, Wilburn contends that
the ALJ’s order was adequate and that no additional factfinding or legal analysis is
necessary. In addition, Wilburn asks this Court to “reinstate” the ALJ’s decision
and determine that it was supported by substantial evidence. Upon review, we
affirm the Board’s decision to vacate and remand.
In Appeal No. 2020-CA-1499-WX, Massengill, like Wilburn, asks
this Court to review the merits of the ALJ’s decision – specifically, to determine
whether the evidence compelled a judgment of enhanced benefits in his favor.
Upon review, we affirm.
Furthermore, Davis Brothers – in its dual roles as appellee and cross-
appellee – also asserts the Board erred and for the reasons asserted by Wilburn.
With that said, before addressing the substance of this matter, there
are several procedural issues that must be discussed first – beginning with Davis
Brothers’ fundamental misunderstanding of its roles as appellee and cross-
appellee. If Davis Brothers wished to contest, modify, or otherwise enlarge its
rights affected by the Board’s decision, it was required to file a valid cross-appeal.
See, e.g., Farmers Nat’l Bank of Danville v. Moore, 282 Ky. 502, 139 S.W.2d 420,
422 (1940); Lainhart v. Rural Doxol Gas Co., 376 S.W.2d 681, 682 (Ky. 1964);
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CR2 76.25(9). But, it did not. And in the absence of a cross-appeal, an appellee is
only entitled to argue that the lower tribunal reached the correct result for the
reasons expressed in its judgment or for any other reasons that were appropriately
brought to the lower tribunal’s attention. Carrico v. City of Owensboro, 511
S.W.2d 677, 679 (Ky. 1974). Consequently, any contentions of error from Davis
Brothers are unauthorized and will be disregarded.
Equally concerning are Wilburn’s and Massengill’s requests for this
Court to review the merits of the ALJ’s order (i.e., whether substantial evidence
either supported the ALJ’s order or compelled a contrary result). We have no
authority to do so under the circumstances. Our appellate authority is limited to
reviewing decisions of the Board. See KRS 342.290. Here, the Board vacated and
remanded—meaning that it rendered no decision regarding the merits of the ALJ’s
order. See Hampton v. Flav-O-Rich Dairies, 489 S.W.3d 230, 234 (Ky. 2016)
(quoting Vacate, BLACK’S LAW DICTIONARY (10th ed. 2014)) (“[W]hen the Board
vacates an ALJ’s opinion, it ‘nullif[ies] or cancel[s]; make[s] void; invalidate[s]’
that opinion.”). In the absence of any such decision, it is not our prerogative to
review the merits. Rather, as our Supreme Court explained,
In the event the Court of Appeals agrees with the Board
that the ALJ’s opinion is deficient, it is free to affirm the
Board’s opinion. However, in the event that the Court of
Appeals disagrees with the Board regarding the
2
Kentucky Rule of Civil Procedure.
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sufficiency of the ALJ’s opinion, it must remand to the
Board for consideration of the substantive issues raised
by [the parties] before the Board.
Id. at 235.
Thus, we cannot entertain Wilburn’s or Massengill’s requests for a
determination of whether substantial evidence supported the ALJ’s order.
Consequently, because the entirety of Massengill’s cross-petition asks this Court to
review the evidence supporting the ALJ’s order – which we lack the statutory
authority to do in the absence of prior review from the Board – we must affirm in
that respect.
Finally, we note that in violation of CR 76.25(4)(a), neither Wilburn
nor Massengill specifically designated the Board as an appellee. However, so long
as the Board has been served – which occurred here – this is not a jurisdictional
error. See Belsito v. U-Haul Co. of Kentucky, 313 S.W.3d 549 (Ky. 2010).
With those preliminary matters now resolved, we proceed to the
substance of this matter. The Board’s opinion accurately sets forth the relevant
facts and procedural history, which we incorporate in relevant part as follows:
Massengill filed a Form 101 alleging he injured multiple
body parts on June 15, 2015, when the boom lift he was
working on tipped over. He and his co-worker, Brandon
Cloud (“Cloud”), fell approximately forty feet. The fall
caused fatal injuries to Cloud and serious injuries to
Massengill. Massengill identified Davis Brothers and
Wilburn as Defendants. He noted Wilburn was the
general contractor who had employed Davis Brothers.
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Massengill indicated Davis Brothers is located in
Tennessee, while Wilburn is located in Kentucky. The
accident occurred in Frankfort, Kentucky. The
Uninsured Employers’ Fund (“UEF”) was joined as a
party since Davis Brothers did not have a Kentucky
workers’ compensation policy in effect on June 15, 2015.
....
Since the only issue on appeal [before the Board] regards
the application of KRS 342.165(1), we will not
summarize the medical evidence. We note Massengill
timely filed a Form SVC alleging the following safety
rules, regulations or statutes had been violated by the
employer: “KRS 338.031(1)(a); 29 CFR[3]
1926.451(c)(2)(iv) employer did not utilize proper
equipment; 29 CFR 1926.602(d).” Massengill alleged
the “employer did not provide a safe work environment
as they did not properly train their employees or utilize
the appropriate equipment with the boom lift occupied by
Plaintiff causing it to tip over and causing the Plaintiff
serious injuries.”
Massengill filed the report, citations, and notification of
penalty issued by the Kentucky Labor Cabinet,
Occupational Safety and Health Program (“KOSH”).
The report identified the establishment as Davis Brothers.
It noted Wilburn was the general contractor for the
Boone National Guard Center Construction Project, and
it had hired Davis Brothers to perform roofing and siding
work. On the day of the accident, Davis Brothers
employees were using a rough terrain forklift (“RT
forklift”) with a platform attached to the forks to install
exterior insulation on a wall. The report indicates
Wilburn rented the RT forklift and owned the platform.
Donald Carr (“Carr”), foreman for Davis Brothers,
operated the RT forklift, while Massengill and Cloud
3
Code of Federal Regulations.
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were on the platform when the accident occurred. The
report indicated the following events occurred verbatim:
. . . the employees on the platform motioned
to the operator that they were ready to come
down. The operator, [Carr], then got into
the cab, turned on the machine, and tilted the
machine’s frame (body) to the left, away
from the work area. When this tilt occurred
it also tilted the 40 foot boom and 4x16 ft.
platform to the left away from the work
area. . . . When this frame tilt occurred the
operator stated that he lost handle of the
lever that conducted the tilt and the frame
continued to tilt to the left away from the
building tipping the machine completely
over. This machine has this frame tilt
feature for rough terrain and for unlevel
surfaces. When the frame was tilted to the
left, while on flat level ground, the weight of
the 40 ft. extended boom and the basket
started to turn the machine completely over
onto its left side slamming onto the concrete.
This exposed two employees to a fall of 40+
feet to the concrete ground below killing one
employee and hospitalizing the other.
The report noted the RT forklift operator’s manual,
which was located inside the cab of the forklift, refers to
AMSE/ANSI B56.6 1992 safety standards when lifting
personnel. Those standards require platforms to be no
wider than the overall width of the truck, in this instance
4x10 feet. The platform involved in the accident, owned
and supplied by Wilburn, was 4x16 feet. The report
noted Terry Gregory (“Gregory”), Wilburn’s site
superintendent, stated he received verbal assurance from
Carr that he could operate the RT forklift. Davis
Brothers could not provide the RT forklift training
certification for Carr. Davis Brothers forwarded a copy
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of a training card dated June 19, 2015, after the accident.
The report noted the operator’s manual stated as follows:
Excessive tilting of the fork carriage or other
attachments with an elevated load can cause
instability. . . . Only trained and authorized
persons should operate and service the
machine . . . . Always level the machine
before raising the boom. Never tilt frame
with the boom raised. Machine may tip and
cause serious personal injury and death . . . .
LULL strongly recommends that you DO
NOT use the rough terrain forklift as a
personnel lift. It is designed for material
handling only. If personnel MUST be lifted,
lift only in accordance with ASME/ANSI
B56.6 1992, Para. 5.15 and with properly
designed work platform.
The report recommended issuing citations to both Davis
Brothers and Wilburn. It also recommended issuing a
citation to Wilburn as the controlling and creating
employer. The report noted Wilburn was the general
contractor that had sub-contracted the work to Davis
Brothers. It noted Wilburn checked the quality of the
work throughout the project, controlled the work being
done, and conducted the clean up after the accident.
Wilburn also owned and supplied the platform and rented
the RT forklift involved in the accident.
A citation was issued, containing three items of violation.
The first item stated the employer violated KRS
338.031(1)(a), a serious violation, and proposed a
$3,500.00 penalty. The citation stated as follows:
KRS 338.031(1)(a): the employer did not
furnish to each of his employees
employment and a place of employment
which was free from recognized hazards that
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could cause or are likely to cause death or
serious physical harm.
a. On 6/15/15 the exposing employer,
[Davis Brothers], did not furnish to each of
his employees, employment free from
recognized hazards when a 4x16 foot
(Arrow brand) man basket attachment was
used on a rough terrain forklift to lift
personnel up approximately forty (40) ft.
This resulted in the machine tipping over
killing one (1) employee and seriously
injuring another employee.
* A feasible means of abatement is, but is
not limited to, using a 48”x116” man basket
attachment which complies with
AMSE/ANSI B56.6 1992 8.25.1(b).
The second item stated the employer violated 29 CFR
1926.451(c)(2)(iv), a serious violation, and proposed a
$3,500.00 penalty. The citation stated as follows:
29 CFR 1926,451(c)(2)(iv): Front-end
loaders and similar pieces of equipment
were used to support scaffold platforms
without being specifically designed by the
manufacturer for such use.
a. On 6/15/15 as the exposing employer,
[Davis Brothers], used a rough terrain
forklift to support a man platform when the
machine was not specifically designed to do
so.
The third item stated the employer violated 29 CFR
1926.602(d), a serious violation, and proposed a
$3,500.00 penalty. The citation stated as follows:
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29 CFR 1926.602(d): The employer did not
certify that each operator had been trained
and evaluated as required by 1910.178(1) of
this chapter:
a. On 6/15/15 as the exposing employer,
[Davis Brothers] did not certify that the
operator of the rough terrain forklift had
been trained and evaluated as required by 29
CFR 1910.178(1).
Wilburn filed the January 3, 2018 KOSH Review
Commission “Decision and Order of this Review
Commission.” According to the decision, Wilburn was
cited for a serious violation of 29 CFR 1926.602(d) since
it, as the controlling employer, did not assure that Davis
Brothers had certified the operator of the RT forklift had
been trained and evaluated as required by 29 CFR
1910.178(1). Ultimately, the Review Commission
downgraded the violation and declined to assess any
penalty for that infraction. We note the above-referenced
citation to Wilburn by KOSH was not filed as evidence.
Wilburn also filed the “in house” safety report by Ron
Logsdon (“Logsdon”) of JV Resources Safety
Management. The report notes an inspection occurred on
June 15, 2015. It identified the following rule violations
by Wilburn: Documented training had not been
performed; First Aid cardholder was not on site; the
weekly hazard assessment checklist was not on site; and
a safety meeting was not held or documented.
Massengill testified by deposition on September 5, 2017
and at the hearing held on November 26, 2018.
Massengill, a resident of Kingsport, Tennessee, began
working for Davis Brothers in 2004. He testified
Wilburn hired Davis Brothers to install siding on the wall
of a building at the National Guard Armory in Frankfort,
Kentucky.
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On June 15, 2015, Massengill and Cloud were working
on a man platform attached to a RT forklift that raised
them up to hang insulation on a tall exterior wall. They
were properly harnessed, and worked at the height of
approximately forty feet. They were also wearing PPE
and hardhats. Carr, a Davis Brothers Employee and
Massengill’s supervisor, operated the RT forklift.
Massengill and Cloud signaled to Carr that they were
ready to come down. Carr tilted the RT forklift away
from the building to avoid scratching it “and then it just
fell over.” Massengill estimated he and Cloud were
approximately 30 or 40 feet in the air when the RT
forklift tipped over. Cloud suffered fatal injuries while
Massengill was airlifted to UK Medical Center with
serious injuries. Massengill remained off work until
January 2016, when he returned to light duty work for
Davis Brothers. Massengill’s treating physician released
him to regular duty work without restriction in April or
May 2016. Massengill continues to work for Davis
Brothers as a roofer.
Massengill testified the equipment was already on site
when he arrived on June 15, 2015, and the platform was
already attached to the RT forklift. Massengill was not
part of the decision making regarding equipment setup,
and did not know who attached the platform to the RT
forklift. Massengill testified Wilburn supplied all of the
equipment, including the RT forklift and platform. Other
lifts were on site on the day of the accident, but were
already in use. Massengill did not know whether Carr
received training from Wilburn. He was likewise
unaware of Carr’s previous training, but had observed
him operating forklifts in the past. Massengill does not
believe Carr intentionally tried to harm him or cause the
RT forklift to tip over. Massengill believes the platform
was too big for the RT forklift, causing it to lose balance
as Carr tilted it away from the building.
Gregory testified by deposition on June 4, 2018. Gregory
has worked for Wilburn for thirty-two years, and was the
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project superintendent at all relevant times. As project
superintendent, he coordinates and schedules work and is
responsible for “just general overview of safety and
project flow.” Gregory testified he is generally
responsible for safety, but “not in specifics.” Wilburn is
a general contractor that constructs buildings and
associated infrastructure.
Wilburn was hired to construct a helicopter maintenance
facility for the Kentucky Army National Guard in
Frankfort, Kentucky in 2013 or 2014. Wilburn had
previously hired a contractor to install metal wall panel
systems. However, that contractor abandoned the job
prior to its completion. Wilburn then hired Davis
Brothers to complete the job. Wilburn agreed to supply
the equipment and Davis Brothers agreed to supply the
labor to complete the job. Gregory testified Wilburn
supplied the RT forklift, man platform, a man platform
lift, an aerial platform lift, and an all-terrain platform lift
to Davis Brothers. Gregory was on site, but did not
witness the accident.
Gregory instructed subcontractors on what jobs were
required, and provided a timeframe for completion. He
did not instruct subcontractors on how to perform their
specific job duties. Gregory testified Davis Brothers told
him what equipment it needed. Gregory did not direct
Davis Brothers to use specific equipment. Gregory
visited the site throughout the day to ensure the work was
progressing.
In the first couple of weeks on the job, Davis Brothers
used a snorkel lift or an aerial platform to perform work
at heights. Davis Brothers then requested the RT forklift
and the man platform involved in the accident, which
Wilburn rented from Equipment Sales and Rental.
Wilburn also provided the man platform, which it owned.
A Wilburn employee selected the man platform from its
warehouse, and delivered it to the jobsite for Davis
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Brothers to use. Carr advised he was certified to operate
the RT forklift, and Gregory did not provide any training.
Carr and Gregory discussed the use of the man platform
on the RT forklift prior to the accident. They discussed
who would operate the lift, and to ensure appropriate
usage of tie-offs. Gregory stated he did not direct or
instruct Davis Brothers how or when to use the man
platform. Gregory stated he gave only one instruction as
it relates to the man platform. He stated, “one
requirement that I know of on that man basket is that the
employees have to be tied off in it and it has to be tied to
the mast (of the forklift), and they were adhering to that.”
Gregory stated no one from Davis Brothers raised any
concern over the platform, and no one refused to use it.
A “notice” sticker from the RT forklift was attached as
an exhibit. It read in part, “This machine is not equipped
to lift personnel. Never use this machine as a work
platform.” The “Operators and Safety manual” for the
RT forklift was also attached as an exhibit. Gregory
testified that although he is familiar with the RT forklift,
he is not familiar with the manual. Gregory stated he is
aware that the RT forklift needs to be operated by a
trained and authorized person. Gregory confirmed he
received a verbal assurance from Carr that he was
certified to operate the forklift, but “I didn’t follow up
and ask him for a training certificate, no.”
Gregory testified he was not aware of the regulation
requiring the man platform to be no wider than the
overall width of the truck, in this instance 4x10. He
testified as follows regarding the safety of the man
platform:
Q: But you would agree that based on what
the operator’s manual says, it wasn’t
appropriate for this machine.
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A: According to this operator’s manual and,
I guess, OSHA’s statement, no, it wasn’t
appropriate.
Q: And you all made no effort prior to
bringing that basket to the job site to
determine whether it was appropriate or not.
A: No, we did not compare – I did not
compare the basket to the machine. I
assume that that basket, being a fabricated
basket, the type that you’d buy or rent, that
it was adequate.
Gregory emphasized that Wilburn had appealed the
citations issued by KOSH, and that it did not pay any
penalties.
Gregory testified Wilburn hired JV Resources to perform
on-site walk-throughs once or twice a month to identify
safety violations. Logsdon of JV Resources had been at
the job site the morning of the accident and did not report
any safety violations. Gregory did not know whether
Logsdon had observed Carr operating the RT forklift
with personnel in the man platform. Logsdon returned to
the jobsite subsequent to the accident to conduct an
investigation.
Carr testified by deposition on April 27, 2018. Wilburn
also filed Carr’s January 6, 2017 deposition from the
companion claim of Brandon Cloud v. Davis Brothers,
Claim # 2016-000978. Carr worked for Davis Brothers
as the job superintendent/project manager at the time of
the June 15, 2015 accident. Carr has operated RT or off
road forklifts a few hundred times in his forty-year
construction career. Carr received on-the-job and formal
training in the operation of forklifts prior to the accident.
Carr received a license to operate off road forklifts in
2000. He testified that the license does not expire.
Neither Davis Brothers nor Wilburn provided on-site
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training to operate the RT forklift involved in the
accident. Carr stated he was certified to operate the RT
forklift on June 15, 2015, and he had previously operated
such equipment. In the deposition taken in the
companion claim, Carr testified he is unable to provide a
training certificate demonstrating he was certified to
operate the RT forklift prior to June 15, 2015, explaining
he had lost his wallet containing all of his cards and
certifications. He also stated that the employer that
trained him was no longer in business.
Wilburn subcontracted with Davis Brothers to complete
work on the building that had been abandoned by a prior
subcontractor. Carr stated Gregory, the job site
superintendent for Wilburn, instructed and directed what
needed to be done. Wilburn provided Davis Brothers
with equipment, including the RT forklift and man
platform. At the January 2017 deposition, Carr indicated
the RT forklift was already on site when Davis Brothers
was hired. Davis Brothers had been at the jobsite for
approximately three weeks prior to the accident. On June
15, 2015, Davis Brothers was installing exterior wall
panels using the RT forklift, operated by Carr. He lifted
Massengill and Cloud in the man platform to install the
panels. Carr testified as follows regarding how the
accident happened: “I went and moved the forks with the
man bucket in it, and we went to move them away from
the wall to lower the guys down to the ground, and the
lift just bounced, slid back and forth, whether it was wind
or whatever, and it over weighted the machine and
flipped the machine over.” Carr stated as follows
regarding the man platform:
Q: And just to be clear, who instructed you
to lift the – lift Mr. Cloud and Mr.
Massengill up with the basket?
A: That’s what the equipment they give us
to work, operate with.
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Q: Did anybody give you direction to lift
Mr. Massengill and Mr. Cloud up using that
man basket?
A: Yeah. The superintendent on the job
site.
Q: The superintendent that was a D.W.
Wilburn employee?
A: Correct.
Q: Do you believe you violated any safety
rule or regulation on June the 15th, 2015?
A: No.
Q: Did you intentionally cause harm to
anyone that day?
A: No.
....
A: I asked Terry to bring me a man basket,
and that’s what was delivered to me for
doing that.
Q: You’re saying that D.W. Wilburn – you
asked for a basket that was appropriate for
that machine, but D.W. Wilburn brought
that basket?
A: Correct.
Q: Are you aware based on your training
that an oversized basket can cause the
machine to come off balance and make it
easier to tip over?
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A: Yes.
Carr explained that although he was trained to utilize a
personnel carrier authorized by the equipment
manufacturer, the sizing of the basket was never part of
his safety training. He believed the platform Wilburn
provided was safe and the appropriate size. He also
stated he operated the RT forklift safely. Carr stated he
looked at the operator’s manual before operating the RT
forklift, but did not measure the platform before using it
to lift personnel. Carr was aware the operator’s manual
strongly recommended the RT forklift not be used as a
personnel lift, but testified that all other on-site lifts
designed to lift personnel were already in use on June 15,
2015. Carr was aware that the operator’s manual
instructs the operator not to tilt the machine with the
boom raised. Assuming the operator’s manual instructs
the platform is not to exceed 4x10 and he was using a
man platform measuring 4x16, Carr agreed the platform
was oversized. However, Carr did not agree with the
KOSH report as to what caused the RT forklift to tip
over. He noted a third party safety company had been
present earlier in the day and it did not write up Davis
Brothers for any safety violations.
The ALJ rendered an opinion May 13, 2019, finding
Massengill entitled to income and medical benefits for
which “the Defendants” are liable. The ALJ also
determined Massengill failed to prove KRS 342.165(1) is
applicable. Massengill filed a Petition for
Reconsideration requesting multiple additional findings
of fact addressing whether Davis Brothers and Wilburn
violated a number of safety regulations. The ALJ
overruled this petition on June 12, 2019. Massengill
appealed.
In an opinion dated December 20, 2019, this Board
determined the May 2019 opinion and June 2019 order
were not final and appealable. The Board noted the ALJ
failed to determined whether Davis Brothers bore the
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initial liability for the award of income and medical
benefits, whether Wilburn is an up-the-ladder contractor
bearing the responsibility for income and medical
benefits if not paid by Davis Brothers, and UEF liability.
The Board concluded the May 2019 opinion and June
2019 order were interlocutory, dismissed Massengill’s
appeal, and remanded to the ALJ.
In the March 11, 2020 remand opinion, the ALJ
determined Massengill is entitled to PPD benefits based
upon the 29% impairment rating. The ALJ stated as
follows, verbatim, regarding KRS 342.165:
....
The purpose of KRS 342.165 is to reduce
the frequency of industrial accidents by
penalizing those who intentionally fail to
comply with known safety regulations.
Application of KRS 342.165 does not
automatically flow from a showing of a
violation of a specific safety regulation
followed by a compensable injury. Burton
v. Foster Wheeler Corp., 72 S.W.3d 925(KY 2002). The application of the safety
penalty requires proof of two elements.
First, the record must contain evidence of
the existence of a violation of a specific
safety provision, whether state or federal.
Second, there must be evidence of “intent”
to violate a specific safety provision. Intent
to violate a regulation may be inferred from
an employer’s failure to comply because
employers are presumed to know what state
and federal regulations require. Chaney v.
Dags Branch Coal Co., 244 S.W.3d 95 (KY
2008).
“Intentional failure” must be more than
simple negligence. Penalties pursuant to
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KRS 342.165(1) are punitive in nature, and
require a level of conduct by a party
equivalent to malfeasance, rather than
misfeasance or nonfeasance. Terry v. AFG
Industries, WCB Opinion No. 00-94292
(January 2, 2003). The party must have an
immediate cognizance that the conduct
causing the injury is in contravention to the
policy or regulation. Barmet of Kentucky [,
Inc.] v. Sallee, 605 S.W.2d 29 (KY APP
1980).
The ALJ finds Massengill failed to satisfy
his burden of proving entitlement to the
application of KRS 342.165. The ALJ is not
convinced Davis Brothers nor D.W. Wilburn
consciously disregarded or willfully failed to
comply with any safety regulations or
provisions. The evidence does not establish
Gregory or Carr knowingly violated any
safety regulations.
Carr did not believe he violated any safety
rule or regulation on June 15, 2015. Carr
had numerous forklift trainings and
certifications. He testified the information
regarding specific acceptable basket size for
personnel was never covered in any of his
safety trainings. Carr testified D.W.
Wilburn sent him an OSHA approved basket
because it had the door and caging. Further,
Carr testified the third-party safety person
had been to the job site and found no issues
with the lift or basket.
Gregory believed he provided a safe basket
for the Lull lift. He testified Davis Brothers
requested the Lull lift and basket. He
explained there is an exception that allows
for using the Lull lift for lifting personnel.
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Gregory testified he was not aware of the
regulation about the maximum acceptable
size of the man basket allowed by the
manufacturer. He thought he had provided
an appropriate and safe basket for the lift.
He testified he assumed it being a fabricated
basket that you buy or rent, that it was
adequate. He explained D.W. Wilburn had a
third-party safety company, JV Resources,
inspect the premises on a regular monthly
basis. Like Carr, Gregory advised JV
Resources found no safety issues with the
basket and lift prior to the accident.
Based on the foregoing, the ALJ finds there
is no evidence that either Davis Brothers or
D.W. Wilburn knowingly or willfully failed
to comply with any safety regulations or
procedures.
The ALJ next determined Wilburn is an up-the-ladder
employer and is liable for Massengill’s income and
medical benefits stemming from the June 15, 2015
accident. The ALJ awarded TTD benefits, PPD benefits,
and medical benefits and found the defendants are
entitled to a credit for the benefits received by Massengill
from his Tennessee claim.
(Internal footnotes omitted.)
On appeal before the Board, Massengill argued the evidence of record
compelled the imposition of the KRS 342.165(1) safety penalty enhancement to his
award. In that regard, he emphasized the KOSH citations that were issued to both
Davis Brothers and Wilburn. He also pointed to the various sections of the
operator’s manual, discussed above, that warned against using the RT forklift as a
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personnel lift. In that vein, he noted the manual stated the RT forklift was not to be
used as a personnel lift unless there was no other practical option and that if it was
so used, the personnel platform was required to comply with the design
requirements.
Massengill noted KOSH concluded that according to the applicable
standard, the largest acceptable platform for the RT forklift was 4x10 feet; that
Wilburn supplied a 4x16-foot man platform; and that KOSH had concluded the
oversized platform contributed to instability and the risk of tilting. Massengill
argued Wilburn selected and supplied the RT forklift and man platform. He noted
Gregory admitted, during his deposition testimony, that the 4x16-foot man
platform was not appropriate. Massengill also noted that while Gregory stated he
had believed the 4x16-foot man platform was safe, Gregory had never ensured or
investigated whether his belief was correct prior to the accident.
Massengill also implied Wilburn had been in a hurry to complete the
construction job and had rushed Davis Brothers. He also pointed to Carr’s
testimony and asserted there was a substantial question of fact as to whether Carr
had even been certified to operate the RT forklift at the time of the accident.
Massengill also noted that although Wilburn had successfully appealed its
companion KOSH citation, there was no evidence it had challenged any of
KOSH’s findings against it underlying those citations.
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As indicated, however, Massengill also asserted the ALJ’s analysis
and factfinding insufficiently disclosed the basis of the ALJ’s decision and
effectively thwarted intelligent review. Specifically, he argued it flowed from the
ALJ’s misunderstanding of the applicable standard for determining whether an
employer acted “intentionally” for purposes of applying the KRS 342.165(1)
benefit enhancement.
And, as indicated, the Board found Massengill’s latter point
dispositive. The Board explained:
KRS 342.165(1) 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.
The purpose of KRS 342.165 is to reduce the frequency
of industrial accidents by penalizing those who
intentionally failed to comply with known safety
regulations. Apex Mining v. Blankenship, 918 S.W.2d
225 (Ky. 1996). The burden is on the claimant to
demonstrate an employer’s intentional violation of a
safety statute or regulation. Cabinet for Workforce
Development v. Cummins, 950 S.W.2d 834 (Ky. 1997).
The application of the safety penalty requires proof of
two elements. Apex Mining v. Blankenship, supra.
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First, the record must contain evidence of the existence
of a violation of a specific safety provision, whether state
or federal. Secondly, evidence of “intent” to violate a
specific safety provision must also be present. Enhanced
benefits do not automatically flow from a showing of a
violation of a specific safety regulation followed by a
compensable injury. Burton v. Foster Wheeler Corp., 72
S.W.3d 925 (Ky. 2002). The worker has the burden to
demonstrate the employer intentionally failed to comply
with a specific statute or lawful regulation. Intent to
violate a regulation can be inferred from an employer’s
failure to comply with a specific statute or regulation
because employers are presumed to know what state and
federal regulations require. The Kentucky Supreme
Court in Chaney v. Dags Branch Coal Co., 244 S.W.3d at
101 (Ky. 2008), stated as follows:
Absent unusual circumstances such as those
found in Gibbs Automatic Moulding Co. v.
Bullock, 438 S.W.2d 793 (Ky. 1969), an
employer is presumed to know what specific
state and federal statutes and regulations
concerning workplace safety require. Thus,
its intent is inferred from the failure to
comply with a specific statute or regulation.
If the violation “in any degree” causes a
work-related accident, KRS 342.165(1)
applies. AIG/AIU Insurance Co. v. South
Akers Mining Co., LLC, 192 S.W.3d 687(Ky. 2006), explains that 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. It serves to compensate the
party that receives more or pays less for
being subjected to the effects of the
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opponent’s “intentional failure” to comply
with a safety statute or regulation.
Violation of the “general duty” clause set out in KRS
338.031(1)(a) may well constitute grounds for
assessment of a safety penalty in the absence of a specific
regulation or statute addressing the matter. Apex Mining
v. Blankenship, supra; Brusman v. Newport Steel Corp.,
17 S.W.3d 514 (Ky. 2000). KRS 338.031(1)(a) requires
the employer “to furnish to each of his employees
employment and a place of employment which are free
from recognized hazards that are causing or likely to
cause death or serious physical harm” to employees. The
Kentucky Court of Appeals in Lexington-Fayette Urban
County Government v. Offutt, 11 S.W.3d 598 (Ky. App.
2000), applied a four-part test to determine whether a
violation of KRS 338.031 had occurred. This test
established a violation of a general duty clause occurs
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.
A violation of the “general duty” clause set out in KRS
338.031(1)(a) can satisfy the requirement set out in KRS
342.165 that a “specific statute” was intentionally
ignored. Not all violations of KRS 338.031(1)(a)
automatically rise to a violation egregious enough to
justify granting an enhancement under KRS 342.165.
Cabinet for Workforce Development v. Cummins, 950
S.W.2d at 836. See Apex Mining v. Blankenship, supra.
In order for a violation of the general-duty provision to
warrant enhancement pursuant to KRS 342.165(1), the
employer must be found to have intentionally 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).
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The ALJ must provide a sufficient basis to support his or
her determination. Cornett v. Corbin Materials, Inc., 807
S.W.2d 56 (Ky. 1991). Parties are entitled to findings
sufficient to inform them of the basis for the ALJ’s
decision to allow for meaningful review. Kentland
Elkhorn Coal Corp. v. Yates, 743 S.W.2d 47 (Ky. App.
1988); Shields v. Pittsburgh and Midway Coal Mining
Co., [634 S.W.2d 440 (Ky. App. 1982)]. This Board is
cognizant of the fact an ALJ is not required to engage in
a detailed discussion of the facts or set forth the minute
details of his or her reasoning in reaching a particular
result. The only requirement is the decision must
adequately set forth the basic facts upon which the
ultimate conclusion was drawn so the parties are
reasonably apprised of the basis of the decision. Big
Sandy Community Action Program v. Chaffins, 502
S.W.2d 526 (Ky. 1973).
We determine the ALJ did not provide a sufficient
analysis addressing the applicability of KRS 342.165(1).
We first note the ALJ did not specify which alleged
safety violations she considered in her analysis.
Likewise, the Board is unable to determine whether the
ALJ considered the KOSH report and citation, as well as
the operator’s manual, in making her determination.
Massengill alleged both specific safety regulations,
consisting of 29 CFR 1926.451(c)(2)(iv) and 29 CFR
1926.602(d), as well as the general duty clause contained
in KRS 338.031(1)(a) in his Form SVC, which is
consistent with the KOSH citations. Massengill
additionally relied upon several provisions contained in
the operator’s manual and the notice document attached
to the RT forklift. Since Massengill raised violations of
specific safety provisions and the general duty provision,
the ALJ was required to perform analyses pursuant to
Chaney v. Dags Branch Coal Co., supra, and Lexington-
Fayette Urban County Government v. Offutt, supra.Therefore, on remand, the ALJ is directed to specify
which safety rule or regulation she is considering in her
KRS 342.165(1) analysis, and to perform a complete
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analysis pursuant to Chaney v. Dags Branch Coal Co.,
supra, and Lexington-Fayette Urban County Government
v. Offutt, supra, considering all of the evidence of record.
If the ALJ determines Davis Brothers intentionally
violated a specific safety statute or regulation, the ALJ is
further directed to address whether the up-the-ladder
employer, Wilburn, bears responsibility for the increased
award.
These appeals followed the Board’s decision. Regarding Wilburn’s
appeal, the arguments Wilburn properly raised before this Court are, as discussed,
twofold. First, Wilburn contends the Board effectively directed the ALJ to resolve
an issue Massengill never raised (i.e., whether a KRS 342.165 enhancement to
Massengill’s award could have been predicated upon a violation, by Davis
Brothers and Wilburn, of the “general duty” standard of workplace safety set forth
in KRS 338.031(1)(a)). Second, Wilburn contends that the ALJ’s order was
adequate and that no additional factfinding or legal analysis is necessary.
Wilburn’s first argument is specious. To be sure, the ALJ’s benefit
review conference order of November 13, 2018, merely indicates the issue
Massengill raised was a “KRS 342.165 violation . . . plaintiff alleging separate
violations against DW Wilburn and Davis Brothers.” But as the Board noted,
Massengill asserted a violation of KRS 338.031(1)(a) in his Form SVC at the start
of this litigation. In virtually all his pleadings during those proceedings,
Massengill referenced the KOSH citations discussed above, and the KOSH
citations discussed violations of KRS 338.031(1)(a). Most saliently, on page
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twelve of his brief before the ALJ – after citing and summarizing the contents of
the KOSH citations and after asserting that Wilburn should be held responsible (as
his up-the-ladder employer) for any of Davis Brothers’ safety violations –
Massengill argued:
[W]hen an operator is cited with specific safety
violations, then his knowledge of the applicable laws is
presumed and a safety penalty is mandated. Chaney v.
Dags Branch Coal Co., 244 S.W.3d 95 (Ky. 2008). In
addition to the specific OSHA violations, it is clear that
Davis Brothers failed to provide Massengill or Brandon
Cloud with a safe workplace as required under KRS
338.031(1)(a).
(Emphasis added.)
In other words, Massengill did ask the ALJ to address this issue. That
much was apparent.
Similarly, we agree with and adopt the Board’s assessment that the
ALJ’s decision was inadequate. Massengill alleged three specific violations, none
of which the ALJ specifically addressed. Moreover, in her order, the ALJ stated
she based her decision regarding KRS 342.165 upon the notion that “there is no
evidence that either Davis Brothers or D.W. Wilburn knowingly or willfully failed
to comply with any safety regulations or procedures.” (Emphasis added.)
Yet as the Board pointed out, some evidence of intent did exist, or at
least may have. For example, if either of the specific safety regulations (i.e., 29
CFR 1926.451(c)(2)(iv) and 29 CFR 1926.602(d)) were violated, intent would be
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presumed “[a]bsent unusual circumstances such as those found in Gibbs Automatic
Moulding Co. v. Bullock, 438 S.W.2d 793 (Ky. 1969)[.]” See Chaney, 244 S.W.3d
at 101. Here, absent any determination from the ALJ regarding whether those
regulations were violated,4 it is impossible to review whether that presumption
applied or if so, whether it may have been vitiated by the requisite “unusual
circumstances.”
Likewise, for purposes of determining whether Wilburn and Davis
Brothers violated the “general duty” standard of KRS 338.031(1)(a), the ALJ was
required to determine whether the employer “intentionally disregarded a safety
hazard that even a lay person would obviously recognize as likely to cause death or
serious physical harm.” See Hornback, 411 S.W.3d at 226. As the Board
indicated, the RT forklift’s operator’s manual provided some evidence in that
respect, as did the “notice” sticker from the RT forklift which stated “This machine
is not equipped to lift personnel. Never use this machine as a work platform.”
In Western Baptist Hospital v. Kelly, 827 S.W.2d 685 (Ky. 1992), the
Kentucky Supreme Court described the role of the Court of Appeals in reviewing
decisions of the Board: “The function of further review of the [Board] in the Court
of Appeals is to correct the Board only where the [] Court perceives the Board has
4
The fact that the employer settled or otherwise resolved a KOSH citation without admitting a
violation is immaterial. In the context of a workers’ compensation claim, it is the responsibility
of the ALJ to determine whether a violation of a statute or administrative regulation has
occurred. See Brusman v. Newport Steel Corp., 17 S.W.3d 514, 520 (Ky. 2000).
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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-
88. Here, because the ALJ’s opinion is either factually incorrect or legally
incorrect, the Board had no alternative but to vacate and remand for further
findings and analysis, as it did. Hence, the Board did not err. For the reasons
discussed, we AFFIRM with respect to both of these appeals.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSS- BRIEF FOR APPELLEE/CROSS-
APPELLEE D.W. WILBURN: APPELLANT WADE
MASSENGILL:
Douglas A. U’Sellis
Louisville, Kentucky C. Phillip Wheeler, Jr.
Pikeville, Kentucky
BRIEF FOR APPELLEE/CROSS-
APPELLEE DAVIS BROTHERS
ROOFING:
Kimberly K. van der Heiden
Carlisle, Kentucky
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