Vittitow v. Central Moloney, Inc.

Full title: CAROLYN M. VITTITOW, EMPLOYEE, CLAIMANT v. CENTRAL MOLONEY, INC.…

Court: Before the Arkansas Workers' Compensation Commission

Date published: Apr 29, 1999

1999 AWCC 133 (Ark. Work Comp. 1999)

Opinion

CLAIM NO. E701783

OPINION FILED APRIL 29, 1999

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE J. SLOCUM PICKELL, Attorney at Law, Pine Bluff, Arkansas.

Respondents represented by the HONORABLE MICHAEL J. DENNIS, Attorney at Law, Pine Bluff, Arkansas.

Decision of Administrative Law Judge: Vacated and dismissed.

OPINION AND ORDER

[2] The claimant, Carolyn M. Vittitow, sustained an admittedly compensable injury on February 4, 1997, when she slipped and fell on a wet concrete floor. The parties stipulated that all appropriate disability and medical benefits have been paid and that the claimant has returned to her regular work. The claimant filed the present claim before an administrative law judge contending (1) that her injury was the result of a violation of a safety rule or regulation of the State of Arkansas, (2) that she is entitled to any and all benefits that may come to her as a result of the alleged safety violation, and (3) that she is entitled to an attorney's fee for controversion. The respondent asserts that the claimant's injury was not the result of a safety violation, and the respondent asserts that the statutory scheme concerning safety violations under the Arkansas Workers' Compensation Law is preempted by Federal OSHA regulations. In an opinion and order filed on April 20, 1998, an administrative law judge found that the claimant has shown by a preponderance of the evidence that her work-related injury was substantially occasioned by the failure of the respondent to comply with Arkansas statutes and official regulations pertaining to the health and safety of its employees. The administrative law judge also found that the Workers' Compensation Commission is a necessary party to any Federal preemption challenge of its authority to enforce provisions of Ark. Code Ann. § 11-9-409 and Rule 32. The administrative law judge awarded the claimant's attorney a $500.00 fee, and the administrative law judge referred this matter to the Workers' Health and Safety Division of the Arkansas Workers' Compensation Commission for a determination of what further action is warranted against the respondent pursuant to Ark. Code Ann. § 11-9-409(c).

Since the claimant's injury occurred after July 1, 1993, this claim is subject to the provisions of Act 796 of 1993. After considering the relevant amendments of Act 796 to the issues presented in the present case, we agree with the administrative law judge that the Workers' Compensation Commission, specifically the Workers' Health and Safety Division, is a necessary party to any action seeking to declare Ark. Code Ann. § 11-9-409(c) preempted by Federal Law. However, as we interpret the amendments of Act 796, we find that the amended law provides that the Workers' Health and Safety Division, and not an injured worker, is now the proper party to investigate and institute any legal action against an employer for an alleged safety violation pursuant to Ark. Code Ann. § 11-9-409 and Ark. Code Ann. § 11-9-503. Likewise, we find that the employer's exclusive recourse under the amended law from any adverse action taken by the Health and Safety Division is through the hearing procedures identified in Ark. Code Ann. § 11-9-409, and not through an evidentiary hearing before an administrative law judge under Ark. Code Ann. § 11-9-704 through 711. Because we find that the claimant has no standing under the amended law to file an action to enforce Ark. Code Ann. § 11-9-409 or 503, and because we find that an administrative law judge lacks authority to hold an evidentiary hearing on this matter, we find that the administrative law judge's opinion must be vacated and the present claim must be dismissed. Therefore, we do not reach the respondent's argument that Ark. Code Ann. § 11-9-409(c) is preempted by Federal Law.

Regarding the basic rules of statutory construction, the Supreme Court recently noted:

We construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Vanderpool v. Fidelity Casualty Insurance Co., 327 Ark. 407, 415, 939 S.W.2d 280 (1997); Bill Fitts Auto Sales, Inc. v. Daniels, 325 Ark. 51, 55, 922 S.W.2d 718, 720 (1996). The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the General Assembly. Id. As a guide in ascertaining legislative intent, we often examine statutory history as well as conditions contemporaneous with the time of the enactment, the consequences of interpretation, and all other matters of common knowledge within the court's, here the commission's, jurisdiction. Citizens to Establish a Reform Party v. Priest, 325 Ark. 257, 261, 926 S.W.2d 432, 435 (1996). In construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Hercules, Inc. v. Pledger, 319 Ark. 702, 706, 894 S.W.2d 576, 578 (1995).

Strict construction means narrow construction. Arkansas Conf. Seventh Day Adventists v. Benton Cty. Bd. of Equalization, 304 Ark. 95, 800 S.W.2d 426 (1990). In Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993), we wrote that strict construction requires that nothing be taken as intended that is not clearly expressed. The doctrine of strict construction is to use the plain meaning of the language employed. Holaday v. Fraker, 323 Ark. 522, 915 S.W.2d 280 (1996). Even when statutes are to be strictly construed, however, they must be construed in their entirety, harmonizing each subsection where possible. Min-Ark Pallet Co. v. Lindsey, 58 Ark. App. 309, 950 S.W.2d 468 (1997).

Lawhon Farm Services v. Brown, 335 Ark. ___, ___ S.W.2d ___ (Dec. 3, 1998).

Prior to the amendments of Act 796, Ark. Code Ann. § 11-9-503 provided as follows regarding violations of safety provisions:

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 or safety of employees, compensation provided for by § 11-9-501(a)(d) shall be increased by twenty-five percent (25%).

However, Act 796 of 1993 made important changes to the safety violation statute, and at the same time, created a Workers' Health and Safety Division of the Workers' Compensation Commission. Under the amended law, Ark. Code Ann. § 11-9-503 now provides:

(a)(1) Notwithstanding any other definition of extra-hazardous employer as provided by § 11-9-409(c), any employer who fails to utilize the consultative safety services available through the Department of Labor, its own insurance carrier, or a private safety consultant shall be identified as an extra-hazardous employer if it is established by a preponderance of the evidence that an injury or death is caused in substantial part by the failure of the employer to comply with any Arkansas statute or official regulation pertaining to the health or safety of employees or fails to follow safety consultant recommendations.

(2) When so notified, the employer shall comply with § 11-9-409(c)(2)-(8).

(b) Provided, if it is established by a preponderance of the evidence that the employee is injured as a result of the employee's violation of the employer's safety rules or instructions, the provisions of this section shall not apply. [Emphasis added].

In assessing the scope of the changes brought by Act 796 in any action related to an alleged safety violation, and in determining who is the proper party to investigate and bring any legal action against an employer, we note that Act 796 has changed (1) the burden of proof required, (2) the nature of the situation in which the statute applies and (3) the nature of the penalty provided for under this section. Specifically, the burden of proof has been changed from clear and convincing evidence to a preponderance of the evidence. The nature of the penalty has been changed from a monetary penalty payable to the claimant under the old law, to compliance with the extra-hazardous employer program obligations in Ark. Code Ann. § 11-9-409(c)(2)-(8) under the amended law. Under the plain language of Ark. Code Ann. § 11-9-503 prior to the amendments of Act 796, Section 503 applied to "an injury" (i.e. any work-related injury) caused in substantial part by the employer's failure to comply with applicable statutes or regulations. However, under the amended law, an additional prerequisite to penal action is that the employer must also have failed "to utilize the consultation safety services available through the Department of Labor, its own insurance carrier, or a private safety consultant. . . ."

This second prerequisite to penal action under the amended law raises a related question as to when, if ever, does the workers' compensation law provide that an employer is obligated to utilize the consultative services of the Department of Labor, its own insurance carrier, or a private safety consultant, and the answer to that question is specifically addressed in Ark. Code. Ann. § 11-9-409(c), which now provides in relevant part:

(c) Extra-Hazardous Employer Program. (1)(A) [T]he [Workers' Health and Safety Division] shall develop a program, including injury frequency, to identify extra-hazardous employers. The term "extra-hazardous employer" includes an employer whose injury frequencies substantially exceed those that may reasonably be expected in that employer's business or industry, an employer whose experience modifier is identified by the Commission as too high, and such other employers as may, following a public hearing, be identified as extra-hazardous.

(B) The [Workers' Health and Safety Division] shall notify each identified extra-hazardous employer or the carrier for the employer that the employer has been identified as an extra-hazardous employer.

(2)(A) An employer who receives notification under subdivision (c)(1)(B) of this section must obtain a safety consultation within thirty (30) days from the Department of Labor, the employer's insurance carrier, or another professional source approved by the division for that purpose. [Emphasis added]

(B) The safety consultant shall file a written report with the [Workers' Health and Safety Division] and the employer setting out any hazardous conditions or practices identified by the safety consultation.

(3) The employer and the consultant shall formulate a specific accident prevention plan which addresses the hazards identified by the consultant. The employer shall comply with the accident prevention plan.

(4) The [Workers' Health and Safety Division] may investigate accidents occurring at the work sites of an employer for whom a plan has been formulated under subdivision (c)(3) of this section, and the [Workers' Health and Safety Division] may otherwise monitor the implementation of the accident prevention plan as it finds necessary.

. . .

(7) An employer may request a hearing before the Full Commission to contest findings made by the [Workers' Health and Safety Division] under this section.

Ark. Code Ann. § 11-9-409(c)(2)(A) provides theonly circumstances under the Arkansas Workers' Compensation Law which require an employer to utilize safety consultative services, and pursuant to the statute, that obligation arises only after the employer has received notification from the Workers' Health and Safety Division that the employer has been identified as an extra-hazardous employer. Notably, Section 409(c)(4) provides the Workers' Health and Safety Division statutory authority to investigate accidents occurring at the work sites of an employer for whom an accident prevention plan has been formulated under Section 409 (c)(3). In addition to its duties under Section 409(c) to identify and notify extra-hazardous employers, investigate accidents after prevention plans have been formulated, and to ensure compliance with the terms of any accident prevention plan, the Workers' Health and Safety Division is also charged with, among other duties, publishing or procuring educational safety materials which include specific references to the requirements of state and federal laws and recommendations. See, Ark. Code Ann. § 11-9-409 (a)(5).

In concluding that the amendments of Act 796 were intended, in part, to make the Workers' Health and Safety Division, and not an injured worker, the party responsible for pursuing any legal action against an employer for an alleged safety violation and extra-hazardous designation, we are particularly persuaded by the following changes brought by Act 796: (1) the creation of the Workers' Health and Safety Division by Act 796 and the statutory duty of the Division to implement the Extra-Hazardous Employer Program under the amended Section 409, (2) the removal by Act 796 of any type of monetary penalty in Ark. Code Ann. § 11-9-503 payable to the claimant, (3) the provision of an extra-hazardous employer designation (a function of the Division) as the penal remedy under the amended Section 503, (4) the fact that the Workers' Health and Safety Division is specifically required by statute to identify extra-hazardous employers under Section 409(c), (5) the fact that Act 796 specifically limited application of Section 503 to instances where employers have already been required pursuant to notice from the Division to obtain safety consultative services pursuant to Section 409(c), but have failed to utilize these services, and in light of (6) the fact that Act 796 specifically provides the Workers' Health and Safety Division statutory authority to investigate accidents at the work place under situations where an employer has an obligation to obtain and utilize safety consultative services pursuant to Section 409(c).

Likewise, we note that Ark. Code Ann. § 11-9-409(c)(7) provides the procedural remedy of an employer to contest findings made by the Workers' Health and Safety Division related to the extra-hazardous employer program, and that remedy is a hearing before the Full Commission, and not a hearing before an administrative law judge.

In interpreting the amendments of Act 796 as they apply to the procedural issues in this case, we also point out that, as this case was presented to us, the respondent has been required to litigate the issue as to whether a safety violation, in fact, occurred before an administrative law judge with review available to the claimant or the respondent through the Full Commission and through the Courts on that single issue. Then, pursuant to the administrative law judge's proposed course of action, this case has also been referred to the Workers' Health and Safety Division for subsequent findings pursuant to Section 409, subject to asecond review by the Full Commission of the Division's findings pursuant to Section 409 (c)(7). We do not see any basis to conclude from the provisions of Section 409 or Section 503 that the General Assembly intended to subject employers to an unwieldy bifurcated review process on essentially one legal issue. Likewise, we point out that the Workers' Health and Safety Division is specifically required by Section 409 to make findings relevant to the Extra-Hazardous Employer Program, and in light of the Division's statutory investigative authority, we believe that the Division is in a better position than an administrative law judge to make the threshold finding under Section 503 as to whether a safety violation has, or has not, occurred.

Therefore, for the reasons discussed herein, we find that the present legal action was brought by an improper party and was brought in an improper forum. Therefore, we find that the administrative law judge's opinion and order must be vacated, and this claim must be, and hereby is, dismissed.

IT IS SO ORDERED.

_______________________________

[16] Commissioner Humphrey concurs.

CONCURRING OPINION

[18] I reluctantly and respectfully concur with the majority opinion that under our present Act ( Act 796 of 1993) the claimant cannot recover any monetary penalty because the penalty is now specifically earmarked for the Death and Permanent Total Disability Trust Fund; and that claimant is not entitled to attorney's fees for controversion. Therefore, the Administrative Law Judge's award should be vacated and dismissed.

I am quite aware that claimant seeks redress or the "compensation" of that peace of mind that a safe workplace brings. Claimant should be assured that any worker in Arkansas will not be "a trapeze artist flying without a net." Workers are free to make a complaint to Federal OSHA at any time. The complaint can even be made anonymously. I would also encourage workers to actively support safety efforts at their workplaces and in particular, workers should become more knowledgeable about available resources.

I also believe the courts would find that Arkansas' statutory scheme concerning Extra Hazardous Employers has been pre-empted by Federal law. The Federal Occupational Health and Safety Act is the final interpreter of who is hazardous and what is acceptable as corrective action. Although those companies employing less than ten (10) workers are not required to maintain workplace injuries and illnesses on the OSHA 200 form, all private sector companies in Arkansas are subject to OSHA regulations.

As far as the majority's findings on procedure, I agree that it is far more efficient to have the Health and Safety Division make findings and then make those findings subject to review by the Full Commission. While I am entirely sympathetic to claimant as an injured worker, Act 796 appears to eliminate claimants as a party in such actions.

We remain personally committed to workplace safety and were early advocates for more cooperation by all the state agencies involved with workplace safety: the Arkansas Workers' Compensation Commission, the Arkansas Department of Labor and last, but certainly not least, Federal OSHA. I am not particularly satisfied with Act 796, especially as it pertains to the safety of workers in Arkansas. However, we must continue our efforts in the future.

_______________________________ PAT WEST HUMPHREY, Commissioner