Opinion
NO. 2015-CA-000116-WC
05-22-2015
KINGSBROOK LIFECARE CENTER APPELLANT v. RICK ALLEN SCHENK; HON. JEANIE OWEN MILLER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Timothy J. Walker Lexington, Kentucky BRIEF FOR APPELLEE RICK ALLEN SCHENK: Kim L. Garrison Lexington, Kentucky
NOT TO BE PUBLSIHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-12-96565
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND STUMBO, JUDGES. STUMBO, JUDGE: Appellant, Kingsbrook Lifecare Center, appeals from a decision of the Workers' Compensation Board (hereinafter "Board") which affirmed in part and reversed in part an award of workers' compensation benefits to Rick Schenk. The Administrative Law Judge (hereinafter "ALJ") in this case awarded benefits to Schenk. The ALJ also enhanced the award by three times pursuant to Kentucky Revised Statutes (KRS) 342.730(1)(c)(1) and also increased the award by 30% as a "safety penalty" pursuant to KRS 342.165(1). The Board affirmed the enhancement and safety penalty. It is this enhancement and safety penalty which are the subject of this appeal. We find no error and affirm.
Kingsbrook is a retirement community. At the time of his injury, Schenk was employed by Kingsbrook as a maintenance worker. On January 31, 2012, Schenk was climbing a ladder in a storage closet which led to an access door to the roof. The ladder consists of vertical side rails anchored to the back wall of the closet with metal rungs mounted between the side rails. While climbing the ladder, his right hand slipped off one of the rungs. This caused Schenk to fall backwards, lose his footing on another rung, and fall to the floor.
Schenk's primary injury was a severe left ankle fracture. Schenk underwent surgery to repair the injury. Metal wires, plates, and screws were required to repair the ankle. In October of 2012, Schenk's doctors believed he had reached maximum medical improvement and released him to return to work. Schenk was restricted to only perform sedentary work.
Schenk testified that he still experiences swelling, a lack of range of motion, pain, and ankle rolling (the ankle giving out while just walking). Around the same time Schenk returned to Kingsbrook, a new position was created. The position was that of a supply clerk. The supply clerk worked at a computer and would order supplies online when needed. This position allows Schenk to elevate his leg when needed to alleviate pain and swelling. This position also paid a sum equal to what Schenk was making as a maintenance worker. Further facts will be set forth as they become relevant to this opinion.
"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 overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-688 (Ky. 1992).
KRS 342.285 designates the ALJ as the finder of fact. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985), explains that the fact-finder has the sole authority to judge the weight, credibility, substance, and inferences to be drawn from the evidence. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986), explains that a finding that favors the party with the burden of proof may not be disturbed if it is supported by substantial evidence and, therefore, is reasonable.Ak Steel Corp. v. Adkins, 253 S.W.3d 59, 64 (Ky. 2008). "Substantial evidence means evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971). "Although a party may note evidence which would have supported a conclusion contrary to the ALJ's decision, such evidence is not an adequate basis for reversal on appeal." Whittaker v. Rowland, 998 S.W.2d 479, 482 (Ky. 1999) (citation omitted).
KRS 342.730(1)(c)(1) states that "if, due to an injury, an employee does not retain the physical capacity to return to the type of work that the employee performed at the time of injury, the benefit for permanent partial disability shall be multiplied by three (3) times the amount[.]" This enhancement is commonly called the "3 multiplier." The 3 multiplier is applicable "[i]f the evidence indicates that a worker is unlikely to be able to continue earning a wage that equals or exceeds the wage at the time of injury for the indefinite future[.]" Fawbush v. Gwinn, 103 S.W.3d 5, 12 (Ky. 2003).
Kingsbrook argues that there was no evidence that Schenk would be unable to earn a similar wage for the indefinite future. We disagree. As to the 3 multiplier, the ALJ stated:
Based upon the medical evidence of permanent restrictions particularly the restriction of no standing or walking longer than 15 minutes per hour, no bending or stooping, and limited lifting of 25 pounds or more and limited pushing or pulling, as well as the testimony of [Schenk] that he still has pain and swelling, rolling of the foot, requires pain medication, and must sit and elevate his foot at work, it is unlikely [Schenk] can continue to earn that level of income into the indefinite future.In addition, the ALJ noted that Schenk testified that his supervisor is very accommodating in allowing him to remain at his desk with his foot elevated for as long as he needs. Schenk also testified that he would not feel secure in his job if that supervisor were replaced because he fears that the same accommodations would not be made. Also, Schenk has a high school education with some college experience; however, his past jobs have only been menial or labor intensive. Schenk has no specialized or vocational training. Finally, Kingsbrook claims that Appellant has the opportunity for career advancement with the company and that it likes to promote from within; however, the one promotion Schenk was considered for since he began working as a supply clerk went to a new employee with more training and education.
We believe that there was substantial evidence to support the ALJ's finding that Schenk will not be able to continue earning a wage equal to, or greater than, the wage he earned at the time of his injury for the indefinite future. We affirm the ALJ decision on this issue.
KRS 342.165(1) states:
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.
In the case at hand, after Schenk's accident, the Kentucky Department of Labor - Occupational Safety and Health Program (hereinafter "KY-OSH") issued a citation against Kingsbrook for violating 29 C.F.R. 1910.27(b)(1)(v) which requires the rungs of an individual-rung ladder to be designed in such a way that the foot cannot slide off the end. The citation noted that Schenk fell from a fixed ladder that did not have any type of slip-resistant surface on the rungs.
Kingsbrook makes the argument that it did not actually violate that regulation because it concerns the physical design of the ladder rungs and does not mention slip-resistant surfaces. Kingsbrook did not contest or appeal the issuance of the citation to KY-OSH and did not raise this issue before the ALJ. "A new theory of error cannot be raised for the first time on appeal." Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999). Because this issue was not presented to the ALJ, we will not comment further on it.
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 of 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 opponent's "intentional failure" to comply with a safety statute or regulation.Chaney v. Dags Branch Coal Co., 244 S.W.3d 95, 101 (Ky. 2008).
Here, the ALJ found that Kingsbrook violated the regulation regarding the ladder and that the requisite intent required by KRS 342.165(1) was inferred. The ALJ and Board both found that the evidence regarding the cause of the accident was uncontested, that the ladder rung was bare metal which was slippery. This then caused Schenk's hand and foot to slip from the rungs.
Kingsbrook argues that this case involves unusual circumstances that should rebut the inferred intent. First, Kingsbrook argues that the regulation was not actually violated. As mentioned previously, this issue was not contested before KY-OSH and not presented to the ALJ; therefore, we will not discuss it further. Kingsbrook also alleges unusual circumstances in that before Schenk's accident, it had voluntarily undergone two reviews by KY-OSH Education and Training.
Both reviews took place in August of 2011. The first review consisted of a site visit in which a Health Consultant toured the premises looking for hazards. The Health Consultant did not mention the ladder as being hazardous. The second review consisted of a site visit by a Safety Consultant. Testimony revealed that the Safety Consultant inspected the storage closet where the ladder was located. In regards to the ladder, the Safety Consultant only asked if it was the only access to the roof of the building. The Safety Consultant said nothing about the ladder being hazardous or lacking an anti-skid surface.
We do not believe the voluntary KY-OSH inspections amount to unusual circumstances that would require reversal of the KRS 342.165(1) penalty. When the evaluation reports of the two consultants were turned over to Kingsbrook, a letter accompanying them stated that "[w]hile the survey was conducted as thoroughly and professionally as possible, in the event of an enforcement inspection, the Compliance Officer will not be legally bound by the advice we have provided; nor can we be held legally responsible for any failure to identify job safety and health hazards." This put Kingsbrook on notice that more safety violations could be present and does not amount to such unusual circumstances as to protect against the safety penalty.
Furthermore, Kingsbrook's brief, and the research of this Court, have only identified one case in which the protection of unusual circumstances came into play. That case was Gibbs Automatic Moulding Co. v. Bullock, 438 S.W.2d 793 (Ky. 1969). In Gibbs, the regulation that was violated by the employer only became effective ten days before the workplace injury. In discussing the KRS 342.165 penalty, the Court stated:
The basis of the statutory penalty is that the injury is the result of an intentional failure to comply with a regulation which has been communicated to the employer. There was no showing that the employer had actual knowledge of the regulation. In order to have an intentional failure to comply, there must be actual knowledge, or such period of time must have elapsed as would create a presumption of knowledge. The ten days between the effective date and injury are not enough in the absence of actual knowledge.Gibbs at 794. The regulation which was violated in the case sub judice had been effective for quite some time. It was not unreasonable for the ALJ to find that Kingsbrook was presumed to have known about the regulation.
For the foregoing reasons, we affirm the decisions of the ALJ and Board.
ALL CONCUR. BRIEF FOR APPELLANT: Timothy J. Walker
Lexington, Kentucky
BRIEF FOR APPELLEE RICK
ALLEN SCHENK:
Kim L. Garrison
Lexington, Kentucky