Opinion
CLAIM NO. E111034
OPINION FILED APRIL 23, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by FLOYD M. THOMAS, JR., Attorney at Law, El Dorado, Arkansas.
Respondent represented by JAMES M. GARY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
An Administrative Law Judge entered an opinion and order in the above-captioned claim on April 30, 1996, finding that respondent employer was liable for the 25% safety violation penalty provided by Ark. Code Ann. § 11-9-503 (1987).
Respondent employer, a self-insured entity, now appeals from that opinion and order, contending that it is not liable for a 25% safety violation penalty.
Following our de novo review of the entire record, we specifically find that respondent employer failed to comply with the safe workplace requirements of Ark. Code Ann. § 11-2-117 (1987) and in turn, is liable for the 25% penalty provided by Ark. Code Ann. § 11-9-503 (1987). The decision of the Administrative Law Judge is therefore affirmed as modified below.
Claimant received a protracted electric shock on June 24, 1991, when he came in contact with a barrier cable which had been electrified by a 200 horsepower motor whose system integrity had been compromised. Despite the gallant efforts of claimant's supervisor, Mr. Thomas Smith, and other co-workers, he could not be saved from the fatal current. Respondent employer accepted the accident as compensable, and appropriate death benefits were paid.
Prior to the accident, respondent employer had engaged the services of T N Electric Co. (hereinafter "T N") to service and clean the motor in question and install new leads. On June 13, 1992, the administratrix of claimant's estate, Ms. Carol B. Norris, filed suit in the Circuit Court of Union County, Arkansas, alleging negligence in T N's asserted failure to "properly clean, repair, insulate, reassemble and install the . . . electric motor." Respondent employer thereafter intervened.
In consideration of a payment of $433,000.00, claimant's administratrix executed a release in favor of T N on March 9, 1993, and agreed to dismiss with prejudice her claim against T N brought on claimant's behalf. However, the claims of respondent employer were specifically excluded from, and unaffected by, the release. The release also provided that it was not to be construed as an admission of liability on the part of T N, but was a "compromise settlement of a doubtful and disputed claim." An accompanying order of dismissal was duly entered following the execution of the release.
Claimant's administratrix thereafter brought the present claim, asserting that respondent employer had failed to maintain a safe work place in violation of certain provisions of the National Electric Code (hereinafter "N.E.C.") and, in turn, of Ark. Code Ann. § 11-2-117 (1987).
That statute provides, in part, that:
(a) Every employer shall furnish employment which is safe for the employees therein and shall furnish and use safety devices and safeguards. He shall adopt and use methods and processes reasonably adequate to render such an employment and place of employment safe and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of the employees.
(b) Every employer and every owner of a place of employment, place of public assembly, or public building, now or hereafter constructed, shall construct, repair, and maintain it so as to render it safe.
Claimant's administratrix further asserted that, based on the violations of the N.E.C. and Ark. Code Ann. § 11-2-117 (1987), respondent employer was liable for a penalty under Ark. Code Ann. § 11-9-503 (1987), which states (in its entirety) that:
Where established by clear and convincing evidence that an injury or death is caused in substantial part by the failure of an employer to comply with any Arkansas statute or official regulation pertaining to the health and safety of employees, compensation provided for by § 11-9-503 (a)-(d) shall be increased by twenty-five percent (25%).
As respondent employer has correctly informed us, clear and convincing evidence is proof so clear, direct, weighty, and convincing as to enable the fact-finder to come to a clear conviction, without hesitation, of the matter asserted. Ross v. Moore, 25 Ark. App. 325, 758 S.W.2d 423 (1988).
Again, as noted above, an Administrative Law Judge found in favor of claimant's administratrix in an opinion and order entered on April 30, 1996. Respondent employer has predicated its subsequent appeal on five points:
(1) The record fails to establish that respondent employer had any knowledge of the alleged safety violation.
(2) The record fails to establish that claimant's death was "caused in substantial part" by any conduct or omission on the part of respondent employer.
(3) Claimant's estate should be "judicially estopped" from asserting that respondent employer is responsible for claimant's death, after asserting in another forum that T N was "exclusively responsible."
(4) The record fails to establish that respondent employer violated any Arkansas statute or regulation.
(5) In the alternative, the administrative law judge erred in computing the amount of the award.
Our review of the record persuades us that, excepting the last, respondent employers' points for reversal are without merit.
I
In its brief, respondent employer asserts that "before a penalty under Ark. Code Ann. § 11-9-503 can be applied, the claimant must have demonstrated by clear and convincing evidence that the employer had knowledge that the alleged safety violation was occurring." (Emphasis in original). To support this position, respondent employer cites to Roberts v. Smith Furniture and Appliance Co., 263 Ark. 869, 567 S.W.2d 947 (1978); Franklin Collier Farms v. Chapple, 18 Ark. App. 200, 712 S.W.2d 334 (1986); andBussell v. Georgia-Pacific Corp., 48 Ark. App. 131, 891 S.W.2d 75 (1995).
Respondent employer goes on to suggest, in its reply brief, that claimant' burden is actually one of demonstrating "actual knowledge" — a suggestion that is essentially unsupported by respondent employer's own selected authority.
The Supreme Court in Roberts agreed with the circuit court's reversal of the Commission's previous finding that "the Acts of 1963, No. 148 imposed an affirmative duty upon an employer to discover or investigate the circumstances under which the work was being done . . ." In reaching its conclusion, the Court stated that:
The circuit court reversed the Commission on the basis that the employer could not be assessed the penalty in the absence of knowledge on the part of the employer from which affirmative action or nonaction by the employer contrary to safety requirements may be inferred. We agree with the trial court as respects the particular safety statute involved.
If we should accept the appellant's position that Acts of 1963, No. 148 imposes an affirmative duty on an employer to discover or investigate the circumstances under which the work is being done, it would then follow that every time an employee comes into contact with a "high voltage" line, the employer could be subject to a fine of not less than $100 or imprisoned for not more than one year or both. After all the act, Ark. Stat. Ann. § 81-1402, supra, states that the term "shall" is to be understood as mandatory and the penalty provision, Ark. Stat. Ann. § 81-1410, supra, provides that a person who violates this act shall be fined no less than $100 or imprisoned not more than one year or both. We cannot believe that the General Assembly intended to place such a stiff penalty upon the employers of this State in the absence of knowledge on the part of an employer from which affirmative action or nonaction may be inferred. (Emphasis in original).
We cannot discern, from the language cited above, that the Supreme Court intended to impose an "actual knowledge" requirement as a prerequisite to liability under Ark. Code Ann. § 11-9-503 (1987). Also, in Franklin Collier Farms, supra, the Arkansas Court of Appeals made the unadorned observation that "Roberts merely stands for the proposition that the employer must have some knowledge of the violation before the penalty can apply." Even more persuasive is the fact that the Court in Roberts does not appear to have ruled out the possibility that the Commission can infer knowledge on the part of an employer:
Finally appellant contends that even though we determine that an employer must have knowledge of the existence of the power line, the Commission should have the ability to infer that such knowledge existed. This assertion by appellant is not supported by the Commission's findings of fact. In fact as pointed out above, the Commission found as a fact that the employer had no knowledge of the high voltage power line.
Nor do we find the more recent case of Bussell v. Georgia-Pacific Corp., 48 Ark. App. 131, 891 S.W.2d 75 (1995) to be supportive of respondent employer's assertion regarding "actual knowledge":
The Commission nevertheless found that the appellant had failed to show that his injury was caused in substantial part by a safety violation. In so finding, the Commission stated that "claimant's relying on the general safety statute must show by clear and convincing evidence an unreasonably dangerous condition known by the employer or within the employer's comprehension," and concluded that the appellant had failed to do so because he had not shown that the employer knew that the particular stair on which he was injured would break. The Commission erred in so concluding. Here, the facts as found by the Commission establish that the stair which broke was corroded, that the area was generally corroded and deteriorated, that the employer was aware of the danger, and that the employer neither made repairs nor set the area off limits to employees. The law requires no greater showing to establish a safety violation, and we reverse on this point and remand for an award of benefits consistent with this opinion.
In the case before us, the record clearly reveals that respondent employer utilized an uncovered Allis-Chalmers 3-Phase Slip Ring Motor in violation of the National Electrical Code — a fact to which respondent employer admitted in its response to claimant's request for admissions. In addition, Mr. Lonnie Buie, an expert witness whose testimony is discussed in detail below, opined that claimant's accident was fatal because respondent employer had failed to properly ground the motor. Finally, the deposition testimony of Messrs. Thomas Smith and Thomas Dismuke reveals that the uncovered motor was utilized in a fashion that exposed it to both flammable and conductive substances on a regular basis:
From Mr. Smith's deposition:
Q. Do you recall any visual indicator that the motor was the source of the problem?
A. A dim glow inside the tail-end of the motor. After we had realized that it had to be coming from that area, we got to looking and you could see a dim glow on the inside of the back of the motor. But it wasn't enough to have noticed unless you were looking for it because it was extremely dim.
Q. A total shift of topics: You will see water underneath that area. Where does the water come from?
A. Some of that water is drainage from rain. Some of the water is when we wet something down, the water — everything is downhill under there. It goes completely out the other side of the mill downhill.
From Mr. Dismuke's deposition:
Q. Where does that sawdust come from that's underneath the mill?
A. It comes out of the re-saw.
Q. It comes from the re-saw?
A. There's a lot of it. As the lumber come (sic) through the re-saw it puts off a lot of excess sawdust that don't goes into the troughing areas.
Q. Don't they have a vacuum system or anything to keep that sawdust from dropping down in there?
A. Not really. Just a towing system — kinda like when it goes through where the wheels goes at it's got a vacuum, like the wheels pull that sawdust down. But as it comes out of the re-saw it got sawdust up on top of the lumber and the board might be two boards together, and say the man jacking the lumber, there's a lot of excess sawdust coming out.
Q. I noticed this morning when I was under there that there's a lot of sawdust under there.
A. Yes. It's a lot of excess sawdust come out up under the re-saw.
Q. Where does the water come from that's underneath there?
A. Say it rains, and runs through right up under the mill; say they do a little welding somewhere, you've got to wet it down; or you're cutting anything, you've got to wet it down because of the dry pile of sawdust is just a (sic) like a match house. You can take and strike a match and throw it on some of that pile of dust and it'll burn. A man can throw a cigarette down and say in about five or ten minutes it might be done started a little smoldering fire there before you know it.
Q. I missed what you said in the beginning of that. You said they would "wet it down?"
A. Yeah. They would dampen it, kind of wet it down, in the areas there.
Q. With a hose?
A. Yes, with a hose. They have to wet it down because in the case of a fire or anything happened.
Q. Is it somebody's job to keep the area wetted own over there?
A. It all depends on if they pick somebody to watch fire for them. That's his job to go around up under the mill and watch for fire in places, to see if any fire come out. He's down there with a water hose to see if any fire or anything like that and he would take a water hose and put it out when they doing welding or stuff like that.
From the foregoing, we specifically find that respondent employer's operation of an uncovered electrical motor in an area regularly inundated with combustible and conductive materials constituted an unreasonably dangerous condition. We are further persuaded to find that respondent employer was aware of the environment in which the motor was placed, given the crude precautions its employees routinely implemented to prevent fires, e.g., to the point of selecting someone to "watch fire" and actually spraying water in the vicinity of an exposed electrical conductor. We also find that respondent employer was aware of the uncovered condition of the motor, since it had been the subject of restorative attention only a few months before claimant's death and was put back in place still in its uncovered state.
Accordingly, based on the above reasoning, we further specifically find that claimant's administratrix has proven, by clear and convincing evidence, that respondent employer had knowledge of an unreasonably dangerous condition on its premises.
II
Respondent employer further asserts that the record does not support a finding that its conduct played a "substantial part" in claimant's death. In our opinion, claimant's administratrix has demonstrated, by clear and convincing evidence, that claimant's death was caused in substantial part by respondent employer's conduct.
Respondent employer contends that the deposition testimony of expert witnesses Frank Ceney and Harold Clark Hill establishes that T N essentially bore all the responsibility for claimant's death, and that the testimony of these two witnesses outweighs the testimony of a third expert, Mr. Lonnie Buie, who attributed claimant's death to a lack of adequate grounding.
It is true that Messrs. Ceney and Hill tend to assign considerable fault for claimant's death to T N's service work. However, respondent employer overlooks the fact that the experts it so heavily relies upon also cited environmental causes attributable to respondent employer's utilization of the motor:
From Mr. Ceney's deposition:
Q. What would have prevented this accident?
A. What would have prevented it? The proper type of insulation here (indicating). If this were mica tape instead of cotton tape, which is no more than the tape that you would bandage your finger with — it has no dielectric strength at all — that would have, that problem would have never happened. And mica tape is a standard tape used in the industry when you're going to splice or change leads or when you rewind. All of these connections on these stators are taped with mica tape.
But previously, Mr. Ceney had opined that:
A. My conclusion is that it started next to the frame. Where the lead goes through the frame and into the terminal box is where the heat or the first leakage started. Now, this was not an instantaneous type where you put two wires together and they burn. This was a high resistance termination or failure, all right, due to the moisture in the sawdust — and now this, again, is my opinion — due to the moisture in the sawdust and the integrity of the insulation. (Emphasis added.)
And, from Mr. Hill's deposition:
A. That's all right. The — It's my conclusion that the cotton tape used to wrap the butt splice made at the junction of the new lead installed and the existing lead was not saturated with the varnish, and that it was the lowest grade available tape to use in that situation. There are other tapes made nowadays that are higher quality and have a higher electrical strength. And I found this out by talking with the three repair facilities, one in particular, Eastern. When I mentioned cotton tape to him, he was surprised it was still being manufactured.
However, Mr. Hill later stated that:
A. Therefore, you double the dielectric strength. If you — This is — If this was varnished tape, it'd be seven mils thick. If it was varnished cotton, you should have a little over three thousand volts of insulation. If you "half wrap" it — is the term — then you end up doubling the layer. So you're doubling the insulation characteristic of it, so that'd be six point four thousand volts. This tape here, being cotton, is absorbent to moisture. It does not have any retarding material in it to keep it from being retardant of moisture. And from my observation of what they tell me, that it was sawdust in there, there was moisture in the area, that the cotton tape did absorb moisture and when it absorbed moisture in here, then in essence you have the electrical carrying conductor being the tape, also, because it's got moisture in it. Water is a good conductor. And then you end up with just a small cross-sectional area to ground against the frame of the motor. I can't tell the sleeving that was on the portion that was shorted out because it's disintegrated. But at the most you could have would be the thickness of this sleeving. If the — it had sawdust chips in there or additional moisture, it would go — also, it would burn through. I don't know what else to say. (Emphasis added).
Mr. Buie, while assigning primary fault to the lack of adequate grounding, also opined that environmental conditions played a role in the development of the accident:
Q. Well, then, what made it become so?
A. Well, it was a deterioration, and I can only list possibilities on this, but one possibility, of course, is the deterioration over a period of time with the sawdust and the moisture and the water, apparently with all the water that was there that day, also.
And later,
Q. So it took this development of sawdust and moisture to make it fatal?
A. Yes, sir.
Ark. Code Ann. § 11-9-503 (1987) does not require an employer's conduct to constitute the sole cause of a given claimant's injury or death. It need only play a "substantial part" in the end result, though this must be established by clear and convincing evidence. With regard to the reasons behind the electrical motor's malfunction, the expert witnesses whose testimony is set out (in part) above all assign an important causative role to the environmental conditions surrounding the motor. Because these environmental conditions were a direct result of respondent employer's utilization of the motor, and based on the deposition testimony cited above, we specifically find that claimant's administratrix has proven, by clear and convincing evidence, that claimant's death was caused in substantial part by respondent employer's conduct.
III
We also find that respondent employer cannot avail itself of "judicial estoppel" in the instant case. Again, respondent employer cites us to three cases to sustain its point: Northwestern Nat'l Life Ins. Co. v. Heslip, 302 Ark. 310, 790 S.W.2d 152 (1990); Atkins v. Pilot Life Ins. Co., 4 Ark. App. 257, 630 S.W.2d 50 (1982); and Daley v. City of Little Rock, 36 Ark. App. 80, 818 S.W.2d 259 (1991).
As stated in Daley, supra, "judicial estoppel is a doctrine whereby a party may be prevented from taking inconsistent positions in successive cases with the same adversary. Muncrief v. Green, 251 Ark. 580, 473 S.W.2d 907 (1971). The doctrine has been said to be one of vague application, but it is commonly required that the parties be the same, and that the same questions be involved. Rinke v. Weedman, 232 Ark. 900, 341 S.W.2d 44 (1960)." Respondent employer argues that claimant's estate has previously asserted, by way of its prior lawsuit, that T N was exclusively responsible for claimant's death, and that claimant's estate is estopped from asserting in a different forum that respondent employer is responsible. We cannot agree with this position.
Respondent employer acknowledges that it was not an adversary of claimant's estate during the latter's litigation with T N. Nevertheless, respondent employer asserts that it was a party to that suit (as an intervenor) and that "the principle of estoppel should apply to preclude the claimant from now adopting a contrary position." In our opinion, the fact that respondent employer is not the "same adversary" that claimant's estate faced during its litigation with T N is sufficient cause to dispose of a judicial estoppel theory.
Even so, respondent employer asserts that inNorthwestern, supra, "the Arkansas Supreme Court has sanctioned the closely related principle of equitable estoppel in a case involving different parties." Regardless of how closely related "equitable estoppel" may be to "judicial estoppel," the facts of Northwestern are clearly distinguishable from the case at hand. In Northwestern, claimant signed a:
statement certifying that his July 17, 1985, injury was sustained in the performance of his duty as an Arkansas National Guard mechanic . . . On one hand the appellee claimed that the July 17th injury was work related, on the other he claims that the July 17th injury was not work related but merely an aggravation of his earlier non-occupational injury.
The Court in Northwestern also noted the Court of Appeals' holding in Atkins, supra, to the effect that "claimant signed a sworn joint petition maintaining that his lung and brain abscess problems were work related, and therefore, the claimant was estopped from asserting either illness to be non-work related."
So far as the record before us reveals, claimant's administratrix in the instant case has done nothing in the nature of signing a sworn joint petition or written statement expressly or impliedly indicating that respondent employer is not at fault for claimant's death, and we specifically find that both Northwestern and Atkins are factually inapplicable to this claim. We therefore additionally find that equitable estoppel is not available to respondent employer.
Claimant has done no more than file a formal complaint, alleging negligence against T N, that simply remains silent as to any fault that might have been borne by respondent employer. Likewise, the documents pertaining to claimant's settlement with T N, including the eventual release itself, neither accuse nor absolve respondent employer of any fault relating to claimant's death. In our opinion, this is a far cry from respondent employer's suggestion that claimant has "maintained in a previous lawsuit that an actor other than Georgia-Pacific was the sole cause of the accident." (Emphasis in original.) We also note that claimant's estate was legally precluded by the exclusive remedy doctrine from naming respondent employer as a defendant, or otherwise alleging that it bore fault, during the course of its litigation with T N (see Ark. Code Ann. § 11-9-105 (1987)).
We are thus persuaded to find that claimant's administratrix's previous silence, with regard to any fault attributable to respondent employer, does not rise to the level of a "theory" which can be said to be "inconsistent" with her assertions in the present claim. In the absence of inconsistent theories, and considering that not even the same adversaries are present in the instant case, we cannot find that "judicial estoppel" (any more than "equitable estoppel") is available to respondent employer.
IV
Respondent employer also argues that "reliance on Arkansas' general safety in the workplace provision as the basis for imposing a statutory penalty is normally sufficient only upon a showing that the employer has also violated a specific Arkansas regulation dealing with circumstances of the sort that led to the accident or that the employer was on notice of the deficiency by the occurrence of some previous accident." To support this proposition, respondent employer cites to Ryan v. Napa, 266 Ark. 803, 586 S.W.2d 6 (1979), wherein the Arkansas Court of Appeals commented as follows:
Appellant cites no specific safety statute or official regulation it is contended the employer violated other than Ark. Stat. Ann. § 81-108, which is not a part of the Workers' Compensation Law, and which only in general terms requires every employer to furnish employment which shall be safe for the employees, furnish and use safety devices and safeguards, and adopt and use methods and processes reasonably necessary to protect the life, health, safety, and welfare of such employees . . . Before the penalty provision could be invoked it would have been necessary for appellant to have established by clear and convincing evidence that appellant's injury was caused in substantial part by the failure of the employer to comply with (sic) Arkansas Safety Statute or regulation pertaining to safety of employees . . . There is no contention that the employer was guilty of violating any statute or regulation specifically dealing with conveyor belts or aisles. Also, it is not shown that any injury had previously occurred incident to the conveyor belt.
However, respondent employer fails to address the subsequent Supreme Court opinion in Georgia Pacific Corp. v. Ray, 273 Ark. 343, 619 S.W.2d 648 (1981):
Petitioner-employer contends that § 81-108 (a) is not part of the Workers' Compensation Law and is merely a general recital of the duties of an employer and not specific standards to measure an employer's conduct. Therefore, it urges that this statute does not meet the requirements of § 81-1310 (d) for imposition of the penalty, citing Ryan v. Napa, et al, supra, in support of its position. There the court of appeals noted that the claimant cited no specific safety statute or official regulation as being violated except § 81-108 (a). Furthermore, the statute is not a part of the Workers' Compensation Law and is phrased only in general terms. However, the commission had permitted and considered evidence of an alleged violation of this statute. The court of appeals affirmed on the basis that the rejection of the claim by the commission was supported by substantial evidence. Here the court of appeals held, in construing Ryan v. Napa et al, supra, that § 81-1310 (d) does not require "that the violated statute or regulation be a part of the Workers' Compensation Act . . ." Suffice it to say, we think the court of appeals was correct in relying upon our decision in Harber et al v. Shows et al, 262 Ark. 161, 553 S.W.2d 282 (1977), as being controlling here. There the commission did not rule on an asserted violation of § 81-108, basing its decision instead on a violation of certain federal regulations. We held the latter inapplicable. There, as here, the claimant unsuccessfully tried to offer proof "that the employer had failed to provide a safe work place to work in violation of § 81-108 (Repl. 1960)." We remanded the case to the commission for a rehearing to permit this proof. Thus, in effect, we held that a violation of that statute, upon the required proof, would support a penalty under § 81-1310 (d).
Given that Ark. Code Ann. § 11-2-117 (1987) (formerly Ark. Stat. Ann. § 81-108) can support penalty liability under Ark. Code Ann. § 11-9-503 (1987), we are persuaded that claimant's administratrix has presented clear and convincing evidence that respondent employer has failed to comply with the provisions of the safe workplace statute.
We point out again that respondent employer made use of an uncovered electrical motor in an environment which exposed it to sawdust and water — the former a combustible particulate and the latter an extremely conductive substance. Furthermore, three expert witnesses have acknowledged the role of these environmental conditions as causes of the fatal accident. This evidence persuades us to find that respondent employer's utilization of the motor in question created an unreasonably dangerous condition which resulted in an unsafe workplace in violation of Ark. Code Ann. § 11-2-117 (1987). We accordingly find that claimant's administratrix has proven, by clear and convincing evidence, that respondent employer has failed to comply with an Arkansas statute pertaining to the health or safety of employees and is liable for the 25% penalty provided by Ark. Code Ann. § 11-9-503 (1987).
V
Finally, respondent employer contends in the alternative that the Administrative Law Judge erred in awarding claimant a 25% penalty calculated upon "all past and future workers' compensation benefits," and should have instead limited the award to the statutory language of Ark. Code Ann. § 11-9-503 (1987) itself: "compensation provided for by § 11-9-501 (a)-(d) shall be increased by twenty-five percent (25%)." We agree that the Administrative Law Judge should have applied the language of the statute, and find that the award should be modified to reflect said language.
Based on our de novo review of the entire record and for the reasons stated herein, we specifically find that claimant's administratrix has proven, by clear and convincing evidence, that respondent employer failed to comply with the safe workplace requirements of Ark. Code Ann. § 11-2-117 (1987), and that this failure played a substantial part in causing claimant's death as per Ark. Code Ann. § 11-9-503 (1987).
Accordingly, we further specifically find that claimant's estate is entitled to additional benefits in the amount of a 25% increase in all benefits provided for by Ark. Code Ann. §§ 11-9-501 (a)-(d) (1987). The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed as modified.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (1987).
For prevailing on this appeal before the Full Commission, claimant's attorney is entitled to an additional attorney's fee in the amount of $250.00 as provided by Ark. Code Ann. § 11-9-715 (b) (1987).
IT IS SO ORDERED.
DISSENTING OPINION
I must respectfully dissent from the majority's opinion finding that claimant is entitled to a safety violation. Based upon my de novo review of the entire record, I find that claimant has failed to meet his burden of proof.
First, let me say that I believe this case to be a tragic one. Claimant lost his life as a result of being electrocuted during the course and scope of his employment. It is always heart-wrenching when an employee comes to such misfortune.
However, this case is also tragic for another reason. There is insufficient evidence, let alone evidence by clear and convincing force, to impose a safety violation penalty against respondent. The majority has found that respondent had knowledge of "an unreasonably dangerous condition on it's premises." However, I point out that the condition on the premises was exactly the same both prior to and after the repair work by T N Electric Company. The only difference was the motor as it had been repaired by T N Electric Company. But for the repair work performed by T N Electric this accident would not have occurred even given all the conditions the majority has found to be "unreasonably dangerous." These conditions in and of themselves did not cause claimant's accident. Moreover, there is no evidence that respondent knew that the work performed by T N Electric was done so in a negligent manner or would result in the horrific accident.
With regard to the substantial cause of the accident, it is clear that but for the negligent repair work this accident never would have occurred. Accordingly, I cannot find that respondent's actions played a substantial part in the accident.
Thirdly, and most importantly, it is inconceivable to me that the majority has found that claimant is not judicially estopped from asserting a diametrically opposed theory from the third party action in this workers' compensation claim. In reaching it's decision that claimant is not judicially estopped, I find that the majority has gone to great lengths to distinguish Northwestern National Life Insurance Co. v. Heslip, 302 Ark. 310, 790 S.W.2d 152 (1990) and Atkins v. Pilot Life Insurance Co., 4 Ark. App. 257, 630 S.W.2d 50 (1982). In both Northwestern and Atkins the claimant asserted contrary positions regarding who was responsible for an injury. Likewise, in the present case, claimant is asserting contrary positions regarding who is responsible for the safety violation. In the third party action all of claimant's pleadings indicate that T N Electric was responsible for claimant's death and used such terminology that the electric motor became "deceptively electrically charged." This allegation is inconsistent with the claimant's current position that respondent had knowledge of the alleged safety violation which substantially caused claimant's accident. If it was deceptive, respondent could not have been aware of it.
In my opinion, the evidence fails to reach the level of clear and convincing evidence that the alleged safety violations whether the specific violations of the national electric code or the general violations of the general safety statute, caused, in substantial part, the claimant's death. Frank Ceney, who provided expert testimony on behalf of claimant for the underlying third party action, unequivocally testified that the failure of the ground was not a factor in causing claimant's accident. Mr. Ceney testified that the accident was caused by T N Electric Company's failure to adequately repair and provide proper insulation. If T N Electric Company had properly taped the leads when it performed the repairs on the motor, the accident would not have occurred, regardless of the other alleged dangerous conditions. Thus, the sole action of T N Electric Company caused claimant's accident. Moreover, Harold Clark Hill, who provided expert testimony on behalf of T N Electric Company, confirmed Mr. Ceney's opinions. Mr. Hill testified "if the proper insulation had been done in this case, it'd have been less likely that he would have gotten electrocuted." Accordingly, if any safety violation occurred which played a substantial part in claimant's death, it was committed by T N Electric Company's failure and was committed without respondent's knowledge.
Accordingly, in my opinion, claimant has failed to prove by clear and convincing evidence the requisite knowledge and intent on behalf of respondent or that respondent's failure, if any, played a substantial role in claimant's death. My sympathy goes out to the claimant in this case. However, when all sympathy is set aside, as it should be, I simply cannot agree with the majority. Therefore, I would reverse the decision of the Administrative Law Judge imposing a safety penalty against respondent.
MIKE WILSON, Commissioner