SIDNEY COAL COMPANY V MARVIN THACKER ; HON . LLOYD R . EDENS, ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD MARVIN THACKER V SIDNEY COAL COMPANY ; HON . LLOYD R . EDENS, ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PROCEDURE PROMULGATED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITY INANY OTHER
CASE INANY COURT OF THIS STATE.
RENDERED : OCTOBER 21, 2004
NOT TO BE PUBLISHED
,*ixyrtntt 011aurf of
2003-SC-0704-WC
SIDNEY COAL COMPANY
V
APPELLANT
APPEAL FROM COURT OF APPEALS
2002-CA-2582-WC
WORKERS' COMPENSATION BOARD NO. 00-58507
MARVIN THACKER ; HON. LLOYD R. EDENS,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
AND
2003-SC-0875-WC
MARVIN THACKER
V
APPELLEES
CROSS-APPELLANT
APPEAL FROM COURT OF APPEALS
2002-CA-2582-WC
WORKERS' COMPENSATION BOARD NO. 00-58507
SIDNEY COAL COMPANY ; HON . LLOYD R.
EDENS, ADMINISTRATIVE LAW JUDGE ;
AND WORKERS' COMPENSATION BOARD
CROSS-APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On December 1, 2000, the claimant was injured when a rock fell from the roof of
the mine in which he was working . An Administrative Law Judge (ALJ) determined that
the employer intentionally violated a federal safety regulation by failing to comply with
the roof control plan for the mine, that its noncompliance partially caused the claimant's
injury, and that the employer must pay a 30% penalty under KRS 342 .165(1) . The
Workers' Compensation Board (Board) and the Court of Appeals affirmed . Appealing,
the employer continues to maintain that the decision was not supported by substantial
evidence that its failure to comply with the roof control plan was intentional and caused
the accident in which the claimant was injured . We affirm.
The claimant was born in 1953. He completed high school, earned mine foreman
and electrician certificates, and worked in the mining industry for approximately 25
years . On December 1, 2000, he was attempting to splice the cable on a continuous
miner when a rock fell from the roof of the mine, striking and injuring him . He later
testified that he saw roof bolts in the mine that were placed 5 '/2 to 6 feet apart and that
they were 6 feet apart at the location where he was injured . A federal mine inspector
had issued a citation for that reason on November 30, 2000, and spot bolting was being
done to correct the situation . Roof bolters were rushed and were repeatedly urged to
work faster. The claimant testified that although roof bolts were supposed to be no
more than 48 inches apart, he noticed wide bolt patterns throughout the mine, including
the area where he was injured . He testified that a bolt was hanging from the mine
ceiling after the accident and that the rock that struck him was about 5 feet wide, 3 '/2 to
4 feet long, and approximately 6 inches thick.
Chris Williamson was the operator of the continuous miner on which the claimant
was working when he was injured and was assisting him . He testified that the rock in
question was large, approximately 4'/2 feet long by 5'/2 feet wide. Williamson had
previously worked as a roof bolter. Although he did not measure the distance between
roof bolts in the area where he and the claimant were working, he thought that it was
wider than five feet. Williamson stated that he was a contract miner and that he asked
to be assigned to a different mine because he thought the one in which he was working
was unsafe . He explained that ribs were breaking off throughout the mine, that "it really
didn't look safe," and that he had seen inspectors impose a time limit on spot bolting to
correct the roof problem .
Billy Slone, a section electrician, finished the splice that the claimant had begun
when he was injured . He testified that he and a foreman measured both the distance
between roof bolts in the area of the accident and the size of the rock that fell on the
claimant . Although he could not remember the exact measurement, he stated that the
rock was more than 48 inches wide, that it fell from an area next to the rib, and that the
roof bolt was more than 48 inches from the rib . Slone did not see any roof bolts
hanging from the ceiling after the rock fell, but he did see roof bolts spaced wider than
48 inches and reported them to the mine foreman that evening . He stated that the area
where the claimant was working was not properly spot bolted, explaining that the roof
bolters were being pushed to work faster, that they were inexperienced, and that he
thought their inexperience caused them to place the bolts too far apart.
Vernon Blackburn managed the mine at the time of the claimant's injury . He
testified that to the best of his knowledge, neither he nor anyone else intentionally
ignored or violated a known safety regulation . Blackburn stated that the claimant's
accident occurred in Section 3 of the mine. That particular section had been "red
tagged" (shut down) on November 20, 2000, due to wide roof bolts, but the citation was
corrected, probably within 24 hours or less. Asked about a citation dated October 18,
2000, he stated that it involved an older area that had been spot bolted near the
elevator shaft, not the area where the injury occurred . He later acknowledged,
however, that all workers had to pass beneath that section of roof to use the elevator .
Blackburn testified that a citation was issued for wide bolts in Section 3 on
November 30, 2000, the day before the claimant's injury. He explained that the mine
was not red tagged at this time, so operations continued while spot bolting was
performed. Asked how an inspector could find wide roof bolts but not shut down the
section, Blackburn testified that evidently the inspector did not find the violation serious
enough to do so . He stated that the situation was corrected within several days and
that the inspector returned on December 5, 2000, at which time the citation was
terminated . Asked why the company was cited twice within 10 days for wide bolts in the
same section, Blackburn testified that the roof of a mine is not smooth, sometimes
making it difficult for roof bolters to space the bolts exactly on four-foot centers . He
testified that the purpose of a roof control plan was to protect employees and that the
company followed it to keep them safe. He stated, however, that a company could
follow its roof control plan and still have a roof fall.
Ms . Patsy Cain, the company safety director, testified that roof bolts are to be
placed 48 inches apart. She identified citations that had been written against the
company for placing roof bolts more than 48 inches apart. Attached to her deposition
was a copy of a citation dated October 18, 2000, which listed several violations of the
roof control plan. Also attached was a copy of the November 30, 2000, citation for
noncompliance with the approved roof control plan for Section 3 of the mine . It
indicated that the center rows of permanent roof bolts were installed 49 to 57 inches
apart in various locations although the plan required bolts to be installed "48 by 48
INCHES ." The December 5, 2000, termination notice indicated that the center rows of
permanent roof supports were presently on 48 inch centers, and the other areas were
spot bolted .
Addressing the applicability of KRS 342 .165(1), the ALJ noted Ms . Cain's
testimony that the roof control plan called for roof bolts to be placed no more than 48
inches apart; the November 30, 2000, citation, which indicated that the center rows of
bolts were installed from 49 to 57 inches apart; evidence that the employer had
previously been cited for improper roof bolting ; and testimony from Ms. Cain, the
claimant, and Messrs . Williamson and Slone that spot bolting was done on orders of the
Mining Safety and Health Administration to correct roof bolting deficiencies. The AU
determined that the employer knew its roof control plan required roof bolts to be
installed no more than 48 inches apart. Relying on testimony by the claimant, Mr.
Williamson and Mr. Slone, the ALJ determined that the rock that injured the claimant
was more than 48 inches wide and fell from an area in which the employer did not
comply with the roof control plan . The ALJ noted Mr. Blackburn's testimony that the
purpose of a roof control plan was to protect workers and that the plan was followed in
order to keep workers as safe as possible . In the absence of an investigative report
addressing the size of the rock that injured the claimant, the ALJ relied upon his
testimony it was about 6 inches thick and determined that it would have been anchored,
at least in part, by a properly placed roof bolt . Concluding that the accident causing the
claimant's injury was partially due to the employer's intentional failure to comply with its
roof control plan as required by 30 CFR 75 .220(a)(1), the AU ordered the employer to
increase the claimant's weekly benefits by 30% . KRS 342.165(1).
As effective July 14, 2000, KRS 342.165(1) provides, in pertinent part, as follows :
(1) 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
5
been liable under this chapter shall be increased thirty
percent (30%) in the amount of each payment.
Asserting that the imposition of a 30% penalty was not supported by substantial
evidence, the employer argues that KRS 342 .165(1) required the claimant to prove that
its failure to comply with the roof control plan was intentional and that it contributed to
causing his injury . The employer points to Mr. Blackburn's testimony that it is difficult to
place roof bolts exactly on four-foot centers and to testimony by Messrs. Blackburn,
Williamson, and Slone that following a roof control plan does not guarantee that a roof
fall won't occur. It asserts that the citations on November 20 and 30, 2000, did not
prove that the improper spacing of the roof bolts was intentional. Pointing to Mr. Slone's
testimony, the employer argues that a spacing error committed by inexperienced roof
bolters does not equate to intentional conduct.
The purpose of KRS 342.165(1) is to reduce the frequency of industrial accidents
and injuries by penalizing those who intentionally fail to comply with known safety
regulations. See Apex Mining v. Blankenship , Ky., 918 S.W .2d 225 (1996). In applying
the provision, an employer is charged with the knowledge and conduct of its supervisory
personnel . Id . KRS 342 .165(1) does not excuse an employer's failure to comply with a
known safety regulation on the ground that it is difficult to comply with the regulation or
that the failure to comply is attributable to the inexperience of the workers who perform
the tasks involved in compliance . It does not excuse a failure to comply on the ground
that the regulation being violated does not always prevent accidents. Nor does it
excuse a failure to comply simply because a federal mine safety inspector does not shut
down the area where a violation occurred or waits several days to re-inspect the area .
Contrary to the employer's assertion, there was substantial evidence from which
the ALJ could infer that this employer's failure to comply with the roof control plan was
6
intentional for the purposes of KRS 342.165(1) and that it contributed to the accident in
which the claimant was injured . The employer does not dispute that it knew the roof
control plan called for bolts to be placed within 48 inches of each other or that it knew
the purpose of the plan was to protect workers from roof falls as much as possible . It
was apparent from the October 18 and November 20 citations that the employer knew
that roof bolts in certain areas were spaced more than 48 inches apart and more than
48 inches from the rib. Yet for whatever reason, it failed to assure compliance with the
roof control plan and was cited again for improper roof bolting on November 30, the day
before the claimant's accident . According to the claimant, Mr. Slone, and Mr.
Williamson, the situation had not been corrected in the area where the claimant was
working when the accident that caused his injury occurred . Furthermore, according to
their testimonies, the rock that caused the claimant's injury was more than 48 inches
wide and fell from an area in which roof bolts were spaced improperly . Under the
circumstances, the ALJ could reasonably infer that the employer's failure to comply with
the roof control plan was intentional and that it contributed to causing the accident from
which the claimant's injury resulted . For that reason, the decision may not be disturbed
on appeal . Special Fund v. Francis, Ky., 708 S .W .2d 641, 643 (1986). Contrary to the
claimant's assertion, we are not persuaded that this appeal is so frivolous as to warrant
the imposition of sanctions .
The decision of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR MARVIN THACKER :
Miller Kent Carter
131 Division Street
P.O . Box 852
Pikeville, KY 41502
COUNSEL FOR SIDNEY COAL COMPANY :
A. Stuart Bennett
Jackson Kelly PLLC
P.O. Box 2150
Lexington, KY 40588-9945
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