VANMETER CONTRACTING, INC. APPELLANT
JAMIE PAULA GROCE; HON. DOUGLAS W. GOTT, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION
BOARD ACTION NO. WC-12-67588
FOR APPELLANT: Douglas A. U'Sellis Louisville, Kentucky
FOR APPELLEES: Scott F. Scheynost Louisville, Kentucky
BEFORE: KRAMER, CHIEF JUDGE; ACREE AND JONES, JUDGES.
Contracting, Inc. appeals the opinion of the Workers'
Compensation Board (Board) reversing in part, vacating in
part, and remanding the opinion, award, and order of the
Administrative Law Judge (ALJ) which determined VanMeter
Contracting employee, Jamie Groce, did not sustain her burden
of proving her employer's intentional violation of a
safety statute or regulation and, according to the ALJ,
should not be entitled to the 30% increase in compensation
benefits for a safety penalty as provided in KRS 342.165(1).
After careful review, we conclude that the Board misconstrued
controlling authority and flagrantly erred in evaluating the
evidence. Therefore, we reverse the Board and remand for
reinstatement of the ALJ's opinion and order.
and Procedural Background
Jamie Groce was seriously injured on October 8, 2012, while
working with a crew constructing a concrete retaining wall
next to a highway in Glasgow, Kentucky. Groce was on top of
the wall when it collapsed. Two VanMeter Contracting
employees were also injured in the incident; one other
employee was killed.
was life-lifted to University of Louisville Hospital. She
sustained a collapsed lung; shoulder fracture; pelvic
fracture; and right leg fractures in the tibia, fibula, ankle
and foot. Groce remained in the hospital for approximately
two weeks. She was then transferred to a rehabilitation
hospital where she stayed until December 2012. Throughout
that time, Groce endured additional surgeries. She had a
metal rod inserted in her pelvis and a bone graft from her
hip taken to reconstruct her ankle. She has been diagnosed
with Complex Regional Pain Syndrome (CRPS) in her lower
extremities, which requires the use of a walking boot or a
walker when not using the boot. She uses a TENS Unit for pain
relief. Groce now takes medication for pain and depression
and has incurred over $250, 000 in medical expenses.
incident and resulting injuries to the VanMeter Contracting
employees triggered an investigation by the Kentucky
Occupational Safety and Health Administration (KOSHA). The
KOSHA report describes the accident as follows:
The accident occurred on Monday October 8, 2012,
approximately 11:30 AM at 3939 Burkesville Rd. Glasgow, Ky.
Four (4) employees were engaged in pouring concrete into a
retaining wall form. The employees were working from a Form
Scaffold, twenty four (24) inches wide by twenty four (24)
foot long mounted to a Plate Girder Forming System retaining
wall form 12.5 feet above the ground below. The retaining
wall form was eight (8) foot wide at the base narrowing to
one (1) foot wide at the top, 12.5 foot tall and twenty four
(24) foot in length. The employees were pouring concrete into
the form using a bucket and crane system and a vibrator
machine to settle the concrete. The form was over 95% filled
with approximately fifty four (54) yards of concrete. As the
employees were topping off the fill, they heard a loud pop
and the entire form raised and toppled to the east toward the
crane. Three (3) employees were thrown toward the crane and
one (1) employee fell backwards into the concrete surging out
from under the toppled form.
(R. at 141).
result of the investigation, KOSHA issued three citations:
one for improper fall protection at the job site; one for
inadequate trenching at the job site; and one for improper
support or bracing of formwork to protect against the failure
of vertical and lateral loads. The proposed penalty for each
violation was $5, 600. VanMeter Contracting conceded
liability on the first two citations. It further maintained
that those citations did not contribute to the failure of the
wall. VanMeter Contracting, however, contested the third
citation relating to the alleged failure to properly secure
the form. The following explains the allegations of the third
The anchoring, bracing and supports gave way as a result of a
Telescoping Push-Pull Pipe Brace used to hold the setup down
not being used and anchor bolt spacing being irregular and
not in four (4) foot intervals as prescribed by the Plate
Girder Technical Data sheet (page five (5)[)]. The result was
that the entire form work raised and toppled to its side
throwing the employees into a nearby crane and into the
(R. at 93). As a result, KOSHA requested the KOSH Commission
to review and affirm the citation, assess the penalty, and
affirm the original period of abatement against VanMeter
Contracting. VanMeter Contracting denied the allegations.
time, VanMeter Contracting and KOSHA entered into a
Stipulation and Settlement Agreement, which provided:
a. [VanMeter Contracting] represents the alleged violations
in the citation issued on March 21, 2013, have been abated.
b. Citation 1, Items 1-3 remain cited as Serious.
c. The total proposed penalty shall be reduced from $16,
800.00 to $14, 000.00 and shall be paid upon execution of the
Stipulation and Settlement Agreement. Payment shall be made