As Modified on Denial of Rehearing Oct. 24, 2013.
Christopher P. Evensen, Louisville, Counsel for Appellant.
Timothy Joe Walker, Mark Edward Yonts, Lexington, Counsel for Appellee Hardin Memorial Hospital.
Mary Michele Cecil, Owensboro, Counsel for Amicus Curiae, Kentucky Chapter of American Federation of Labor and Congress of Industrial Organizations.
Patricia Hornback requests this Court reverse an opinion of the Court of Appeals, which held that she was not entitled to an enhancement of her workers' compensation award pursuant to KRS 342.165(1), which penalizes an employer for an intentional failure to follow a safety protocol. She makes the following arguments on appeal: (1) that her employer, Hardin Memorial Hospital (" Hardin" ), is barred from raising certain issues on appeal because it failed to ask the Administrative Law Judge (" ALJ" ) for further findings of fact; (2) that the ALJ's finding that a safety procedure pamphlet written by an elevator manufacturer was a safety protocol policy for Hardin was supported by the evidence; (3) that the ALJ correctly applied the four-part test set forth in Lexington-Fayette Urban County Government v. Offutt  to determine that Hardin violated the " general duties" provision of Kentucky's Occupational Safety and Health Act; and (4) that the Court of Appeals erred in holding that the ALJ needed to make an independent finding of intent to apply the enhancement set forth in KRS 342.165(1). Hardin concedes that Hornback is entitled to permanent total disability benefits at this time but believes that the ALJ's enhancement of her award was unsupported by the facts. For the reasons set forth below, we reverse the Court of Appeals.
While working for Hardin as a custodian, Hornback became trapped in a stalled
elevator. Hardin's security staff attempted to rescue Hornback; but, as a result of their attempt, she fell several stories down the elevator shaft causing serious injuries to her person. Hornback has been unable to work since the injury, and she filed for workers' compensation.
The ALJ enhanced Hornback's workers' compensation award based on KRS 342.165(1) and KRS 338.031. Under KRS 342.165(1), if an accident is caused in any degree by the intentional failure of an employer to comply with a specific statute or regulation relative to the installation or maintenance of safety appliances, or methods, the claimant's workers' compensation benefits shall be increased by 30 percent in the amount of each payment. The benefit enhancement provided in KRS 342.165(1) can be triggered by a violation of KRS 338.031, also known as the " general duties" provision of Kentucky's Occupational Safety and Health Act, which states that an employer must provide his employees a place to work free from recognized hazards that could cause death or serious injury. Offutt provides a four-part test to determine whether an employer violated KRS 338.031. That test is:
(1) [a] condition or activity in the workplace presented a hazard to employees; (2) [t]he cited employer or employer's industry recognized the hazard; (3) [t]he hazard was likely to cause death or serious physical harm; and (4) [a] feasible means existed to eliminate or materially reduce the hazard.
Applying the above statutes and the Offutt test, the ALJ made the following findings and legal conclusions regarding the accident:
[b]usiness records from [Hardin] include a document entitled ‘ How to operate Elevators under emergency conditions,’ which lists specific procedures for dealing with an individual stuck on an elevator. The document specifies the exact procedures a ‘ certified rescue squad’ is to utilize in removing individuals from elevators which are malfunctioning. Specifically, emergency removal of passengers is to be performed by a fire department or rescue squad when an elevator has stopped between floors. Further, a ‘ qualified elevator mechanic’ is to be called to determine if the elevator can be made operational first, before attempting to remove passengers. Then, the first procedure for removing passengers is to remove them from the side emergency exit into an adjacent elevator. In all cases, a fire department or rescue squad is to be called to perform all rescue activities.
Based on the findings in the Kentucky OSHP Report, it appears [Hornback] used the elevator phone to call for help when she realized that she was stuck. At that point, [Hardin], through its hospital security team, violated every single safety instruction set forth in its procedure for ‘ How to operate Elevators under emergency conditions.’ [Hardin] did not call the fire department or a certified rescue squad, and did not call a qualified elevator mechanic. Instead, [Hardin] attempted to extract [Hornback] on their own, but instead of using an adjacent elevator so she could exit through a side emergency door (i.e. avoid the risk of falling down an ‘ open’ elevator shaft), the hospital personnel opened ...