LEE KYLE CUMMINS v. COMMONWEALTH OF KENTUCKY/ CABINET FOR WORKFORCE DEVELOPMENT, KENTUCKY DEPARTMENT FOR ADULT & TECHNICAL EDUCATION/KENTUCKY TECH SOUTHEAST REGION/HAZARD STATE VOCATIONAL TECHNICAL SCHOOL; HON. WILLIAM O. WINDCHY, Acting Director of Special Fund; HON. SHEILA C. LOWTHER, Chief Administrative Law Judge; and KENTUCKY WORKERS' COMPENSATION BOARD
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RENDERED:
September 6, 1996; 10:00 a.m.
TO BE PUBLISHED
96-CA-1016-WC
LEE KYLE CUMMINS
v.
APPELLANT
PETITION FOR REVIEW UNDER CR 76.25
OF A DECISION OF THE WORKERS' COMPENSATION BOARD
WC-95-1656
COMMONWEALTH OF KENTUCKY/
CABINET FOR WORKFORCE DEVELOPMENT,
KENTUCKY DEPARTMENT FOR ADULT &
TECHNICAL EDUCATION/KENTUCKY TECH
SOUTHEAST REGION/HAZARD STATE
VOCATIONAL TECHNICAL SCHOOL;
HON. WILLIAM O. WINDCHY,
Acting Director of Special Fund;
HON. SHEILA C. LOWTHER,
Chief Administrative Law Judge; and
KENTUCKY WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
REVERSING AND REMANDING
* * * * * * * * * * * * * * * * * * * *
BEFORE:
DYCHE, HOWERTON, and SCHRODER, Judges.
HOWERTON, JUDGE.
Lee Kyle Cummins petitions for review of an
opinion of the Workers' Compensation Board (Board) rendered on
March 29, 1996.
The Board affirmed an award of the
Administrative Law Judge (ALJ) favorable to Cummins, but which
failed to assess a 15% safety penalty against Cummins' employer,
Hazard State Vocational Technical School (Hazard State) pursuant
to KRS 342.165.
We reverse and remand for further proceedings.
On January 12, 1995, Cummins filed a claim for workers'
compensation benefits for injuries he received as a result of
exposure to toxic chemicals while employed as a teacher at Hazard
State.
Cummins taught courses involving heating, air
conditioning, and refrigeration and regularly worked with various
freons, acids, oils and lubricants, bonding compounds, and
brazing and soldering materials.
His last date of exposure was
January 20, 1993, and he has not been employed since.
Cummins
claimed that the exposure to the toxic chemicals resulted in
psychiatric problems, memory loss, hearing loss, and difficulty
with balance.
Cummins maintained that these problems prevented
him from seeking any type of employment.
At the hearing before the ALJ, Cummins' testimony
established that there was no ventilation in the areas in which
he worked, nor were proper gloves or respirators furnished to
prevent exposure to the chemicals.
Testimony was also provided
from several doctors that the lack of safety devices resulted in
exposure to the toxic chemicals which, in turn, directly caused
Cummins' health problems.
A safety coordinator from Hazard State
provided an affidavit stating that he observed Cummins working
with various chemicals and that the shop in which Cummins worked
did not have a ventilation system.
After reviewing all of the evidence in the record, the
ALJ concluded that Cummins had satisfied his burden of
demonstrating that his mental and physical conditions were
related to the chemical exposure occurring during the course of
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his employment.
The ALJ found that Cummins was permanently and
totally occupationally disabled, and apportioned liability 25
percent to Hazard State and 75 percent to the Special Fund.
However, the ALJ denied Cummins' request for a 15 percent safety
penalty against Hazard State pursuant to KRS 342.165.
The ALJ
found that no specific statute or regulation was violated which
would require the penalty.
A motion for reconsideration was
filed and denied.
On appeal to the Board, Cummins relied on KRS 338.031
which provides that an employer shall furnish a place of
employment free from recognized hazards.
Cummins argued that
since the uncontradicted testimony proved he had worked in an
unsafe environment and that Hazard State had violated the
provisions of KRS 338.031, he was entitled to the assessment of
the safety penalty pursuant to KRS 342.165.
In affirming the
ALJ, the Board, in pertinent part, wrote:
The provisions of KRS 342.165 which were
in effect at the time of Cummins' last
exposure to toxic chemicals:
If an accident is caused in any degree
by the intentional failure of the
employer to comply with any specific
statute or lawful regulation made
thereunder, communicated to such
employer and relative to installation or
maintenance of safety appliances or
methods, the compensation of which the
employer would otherwise have been
liable under this chapter shall be
increased fifteen percent in the amount
of each payment. . . .
Cummins argues that KRS 338.031 under
the chapter entitled "Occupational Safety &
Health of Employees" is the specific statute
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which has been violated by Hazard State.
That provision provides that each employer:
(a) Shall furnish to each of
his employees employment and a
place of employment which are free
from recognized hazards that are
causing or are likely to cause
death or serious physical harm to
his employees; . . .
Cummins cited this statute in his brief
before the ALJ; however, the ALJ found that
Cummins had cited to no specific statute or
regulation in support of his argument. We
agree with the ALJ; hence, we affirm.
The Board believes that the emphasis of
KRS 342.165 is for a failure to comply with a
specific statute or regulation which
establish [sic] particular safety standards.
We do not believe that the Legislature
envisioned assessment of a penalty for a
violation of a general standard of failing to
furnish a safe place to work. (Citation
omitted).
Cummins argues to this Court that in light of the
evidence, it was error not to assess a 15 percent safety penalty
against Hazard State.
After reviewing the record and the
precepts set forth in Apex Mining v. Blankenship, Ky., 918 S.W.2d
225 (1996), we must remand this case to the Board for further
proceedings.
Blankenship addressed as a matter of first impression
whether the violation of KRS 338.031 constitutes a safety
violation for the purposes of KRS 342.165.
The claimant in
Blankenship was injured while operating a road grader which had
defective brakes and could only be stopped by lowering the grader
blade.
The ALJ determined that the employer knew of the defect
and had failed to repair it, thus constituting an intentional act
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of noncompliance under KRS 338.031.
On appeal, the Board
rejected the employer's argument that a violation of KRS 338.031
did not constitute a violation under KRS 342.165.
This Court
agreed with the Board that the ALJ's findings on the issues of
employer knowledge and causation were supported by substantial
evidence which conformed to the requirements of KRS 342.165.
Our Supreme Court, in affirming this Court, recognized
that "KRS 338.031(1)(a) requires an employer to provide a
workplace which is free from 'recognized hazards' that cause or
are likely to cause death or serious physical harm, a requirement
that is consistent with the purpose of KRS 342.165."
Id.
Further, the Court wrote:
Although we recognize that KRS 338.031
is not as specific a statute as might be
desirable, we are also mindful that the
Workers' Compensation Act is social
legislation which is to be construed
liberally and in a manner consistent with
accomplishing the legislative purpose.
Therefore, we conclude that the particular
violation of KRS 338.031(1)(a) which is
presented by the facts of this case
sufficiently complied with the requirements
of KRS 342.165 to justify the imposition of a
penalty. We believe that any other
construction of KRS 342.165 on these facts
would cause an absurd result which clearly
would be at odds with the legislature's
intent in enacting the provision.
In the instant case, it appears that the ALJ and the
Board relied on the fact that there is no specific statute
requiring ventilation in a workplace such as where Cummins was
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employed, thus there could be no penalty assessed under
KRS 342.165.
We disagree.
Cummins established that there was no
ventilation and that he was not provided with safety equipment.
We are of the opinion that this, at a minimum, violates the
provisions of KRS 338.031.
Further fact finding as to the
employer's knowledge or reasonable lack of it is warranted.
The opinion of the Board is reversed and the matter is
remanded to the ALJ for further proceedings in accordance with
this opinion.
SCHRODER, JUDGE, CONCURS; DYCHE, JUDGE, DISSENTS BY
SEPARATE OPINION.
DYCHE, JUDGE, DISSENTING.
majority opinion.
I must respectfully dissent from the
Assuming for the sake of argument that Apex
Mining v. Blankenship, Ky., 918 S.W.2d 225 (1996) would allow
assessment of a penalty for intentional violation of the "safe
workplace" statute (KRS 338.031), such penalty is not justified
in this case; the evidence does not compel a finding that there
was any intentional violation.
I would affirm the Board's
opinion.
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BRIEF FOR APPELLANT:
BRIEF FOR COMMONWEALTH:
Robert J. Greene
Pikeville, KY
Carole Meller Pearlman
Louisville, KY
BRIEF FOR SPECIAL FUND:
Judith K. Bartholomew
Louisville, KY
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