James River Coal Co. v. Whitaker

Full title: JAMES RIVER COAL COMPANY. APPELLANT v. DOYLE EDWIN WHITAKER; OTTO DANIEL…

Court: Commonwealth of Kentucky Court of Appeals

Date published: Mar 15, 2013

NO. 2012-CA-001688-WC (Ky. Ct. App. Mar. 15, 2013)

Opinion

NO. 2012-CA-001688-WC

03-15-2013

JAMES RIVER COAL COMPANY. APPELLANT v. DOYLE EDWIN WHITAKER; OTTO DANIEL WOLFF, Administrative Law Judge; and WORKERS' COMPENSATION BOARD APPELLEES

BRIEF FOR APPELLANT: Terri Smith Walters Pikeville, Kentucky BRIEF FOR APPELLEE: Ronnie M. Slone Prestonsburg, Kentucky

COMBS

NOT TO BE PUBLISHED

PETITION FOR REVIEW OF A DECISION

OF THE WORKERS' COMPENSATION BOARD

ACTION NO. WC-09-97597

OPINION

AFFIRMING

BEFORE: CAPERTON, COMBS, AND DIXON, JUDGES. COMBS, JUDGE: James River Coal Company (James River) petitions for review of an opinion of the Workers' Compensation Board affirming the decision of the Administrative Law Judge (ALJ), who awarded Doyle Edwin Whitaker permanent total disability benefits and medical benefits for a work-related injury. James River contends that the ALJ erred in enhancing Whitaker's disability benefits, finding that the work accident resulted from his employer's intentional failure to comply with a specific safety statute or regulation. James River now contends that the Board erred in affirming that ruling as based on substantial evidence. After our review, we affirm.

The parties agree that Whitaker, an underground coal miner, suffered a disabling, work-related injury on February 2, 2009. While Whitaker was operating a cutting machine that prepared the coal walls of the mine for removal, rock from the ceiling fell and struck him on the head, shoulders, left index finger, and left leg. He was hospitalized for eleven days.

Shortly after Whitaker was injured, James River was issued a citation by the U.S. Department of Labor's Mine Safety and Health Administration (MSHA). MSHA cited James River for failure to comply with the provisions of a specific federal regulation (30 C.F.R. 75.202) concerning fall hazards and maintenance of mine roofs. 30 C.F.R. 75.202 provides as follows:

(a) The roof, face and ribs of areas where persons work or travel shall be supported or otherwise controlled to protect persons from hazards related to falls of the roof, face or ribs and coal or rock bursts.

The citation characterized the violation as "significant and substantial" and the nature of James Rivers's negligence level as "moderate."

Also as a result of Whitaker's accident, the Kentucky Office of Mine Safety and Licensing issued two notices of non-compliance and closure orders. These notices indicated that at the time of the accident, the mine was not in compliance with its state-approved roof control plan and that required safety reflectors were not posted near the end of the mine's permanent roof supports as a warning to employees. As a result of the notices and orders, a meeting was conducted with mine management to review the approved roof control plan. After this review, the mine was reopened.

On February 3, 2011, Whitaker filed an Application for Resolution of Injury Claim. Whitaker indicated that as a result of the rock fall, he had suffered three compound fractures of his left leg and the amputation of his left index finger. He also indicated that he suffered with anxiety and depression associated with his disability. He submitted the physician reports of Doctors Anbu Nadar and James Chaney. Dr. Nadar determined that Whitaker could not return to his former employment. Dr. Chaney attributed Whitaker's anxiety and depression to his work-related injuries.

An evidentiary hearing was conducted before the ALJ on January 24, 2012. After analyzing the evidence, the ALJ concluded that neither Whitaker's age nor his level of education indicated that he was permanently totally disabled by his injuries. However, noting that the bulk of Whitaker's working life had been devoted to underground coal mining, the ALJ concluded that he was permanently totally disabled due to his lack of transferable skills. Based on the physical restrictions and limitations assessed by each of the medical experts, the ALJ concluded that Whitaker was indeed rendered permanently totally disabled by his work injuries.

The ALJ was also persuaded by the evidence that Whitaker's work accident had been caused in some degree by the intentional failure of James River to comply with specific safety statutes or administrative regulations relative to the maintenance of safety in an underground coal mine. Consequently, the ALJ concluded that Whitaker was entitled to enhanced benefits pursuant to the provisions of Kentucky Revised Statute[s] (KRS) 342.165. The ALJ observed as follows:

As a result of [Whitaker's] accident, [James River] received one Federal Citation for violating Title 30 CFR 75.202(a), and two State Notice of Non-Compliance/Closure Orders, one addressing [James River's] failure to have two reflectors posted in the second row of permanent roof supports; and the other addressing [James River's] failure to comply with its own roof control plan. These citations were issued by mining officials who regularly investigate underground mining accidents.
Having determined there were Federal and State Safety Regulations that [James River] failed to be in compliance with at the time of [Whitaker's] accident, the only thing that remains to be determined for [Whitaker] to receive additional benefits under KRS 342.165, is whether [Whitaker's] injuries were caused in any degree by [James River's] violation of the applicable regulations.
On the two State Citations the inspector was specifically asked, 'Did an injury or fatality occur as a result of Non-Compliance?" and on both citations the inspector answered "yes." In the Federal Citation, the inspector
wrote, "The roof, face and ribs of areas where persons work or travel shall be supported or otherwise controlled to protect persons from hazards related to falls of rock, face or ribs and coal or rock bursts was not complied with . . . where the continuous miner operator was injured by falling rock that measured 22 inches wide, 50 inches long and 2 inches thick to approximately 10 inches thick causing crushing injuries." The reports of these trained inspectors seem to preclude making a finding other than that [Whitaker's] injuries were caused to some degree by [James River's] violation of the applicable safety regulations.
* * * * *
James River contends that nobody knows exactly where [Whitaker] was located at the time of his injury and therefore, it is impossible to connect the safety violations with his injury, but the fallacy with this reasoning is that it is known that [Whitaker] was located under the falling rock and that area of the ceiling, from which the rock fell, was not in compliance with [James River's] roof control plan (Kentucky Notice of Non-Compliance No. 09306003) nor was it in compliance with Federal Mine Safety Regulations (Title 30 CFR 75.202(a)).
[Whitaker] did testify that at the time of the roof fall he was not located within the "red zone." He defined the "red zone" as the area around any part of the continuous miner. Not being in the "red zone" does not mean he was under protected roof. [Whitaker's] exact location at the time of the roof fall is elusive, but, based upon the mine safety experts' conclusions it can be said [Whitaker] was positioned under the rock that fell from the roof and the rock fell from an area of the roof that was found to be in violation of at least two specific safety regulations.
Two different Mine Safety Inspectors specifically indicated [Whitaker's] injuries were at least in part caused by [James River's] violation of certain safety regulations. This documented evidence is more persuasive than that of the mine's superintendent . . . .
Based upon the fact [Whitaker] was under the rock when it fell from the roof and the area of the roof from which it fell was deemed to be in violation of safety regulations addressing how the roof of a mine is to be safely maintained, it can only be concluded that [Whitaker's] injuries were caused in some degree by [James River's] failure to comply with several specific safety regulations. Consequently, [Whitaker] is entitled to a 30% increase in his compensation as provided by KRS 342.165.

Opinion, Order and Award at 26-29.

James River filed a petition for reconsideration challenging: (1) the conclusion of the ALJ that Whitaker was rendered permanently totally disabled by his injuries and (2) the finding that the accident was caused to some degree by the failure of James River to comply with relevant mine safety provisions. The ALJ denied the petition with respect to both of these issues. On appeal, the Workers' Compensation Board affirmed the decision of the ALJ. This petition for review followed.

James River contends that the Board erred by concluding that the decision of the ALJ to enhance Whitaker's benefits was supported by the evidence. We disagree.

The ALJ has sole discretion to determine the quality, character, and substance of the evidence and is at liberty to reject any testimony. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky.1985). As the claimant, Whitaker had the burden of proving each of the essential elements of his claim, including his entitlement to enhanced benefits under the provisions of KRS 342.165. Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Since Whitaker was successful in sustaining that burden, the sole question on appeal was whether there was substantial evidence of record to support the decision of the ALJ. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).

The Board is charged with deciding whether the ALJ's finding "is so unreasonable under the evidence that it must be viewed as erroneous as a matter of law." Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000); KRS 342.285. When reviewing a decision of the Board, we may reverse only where the Board has overlooked or misconstrued the controlling law or erred in evaluating the evidence so flagrantly as to cause gross injustice. Western Baptist Hosp. v. Kelly, 827 S.W.2d 685 (Ky.1992). In this case, the Board carefully evaluated the evidence and considered the controlling law.

KRS 342.165(1) provides, in part, 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.

(Emphasis added).

In Chaney v. Dags Branch Coal Co., 244 S.W.3d 95 (Ky. 2008), the Supreme Court of Kentucky observed that an employer is generally presumed to know what is required under specific state and federal statutes and regulations concerning workplace safety. The Court noted that application of the provisions of KRS 342.165(1) does not depend on the egregiousness or maliciousness of the employer's conduct. Instead, an employer's "intent" is to be inferred from the failure to comply with a specific statutory or regulatory provision. The provisions of KRS 342.165(1) give employers a financial incentive to follow safety rules, and where the violation of a safety provision "in any degree" causes a work-related accident, the claimant is entitled to an enhancement of benefits. Id.

The Board did not err by concluding that the ALJ's findings of fact were adequately supported by the evidence in this case. The record reflects that James River was cited for violations of state and federal mine safety regulations. Those citations indicate that Whitaker's injuries were caused by the failure of James River to comply with specific state and federal mine safety requirements. The contents of these citations constitute ample evidence to support the ALJ's decision in this matter.

We affirm the opinion of the Workers' Compensation Board.

ALL CONCUR. BRIEF FOR APPELLANT: Terri Smith Walters
Pikeville, Kentucky
BRIEF FOR APPELLEE: Ronnie M. Slone
Prestonsburg, Kentucky