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Vanmeter Contracting, Inc. v. Groce

Court of Appeals of Kentucky

April 14, 2017

VANMETER CONTRACTING, INC. APPELLANT
v.
JAMIE PAULA GROCE; HON. DOUGLAS W. GOTT, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES

         PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-12-67588

          BRIEF FOR APPELLANT: Douglas A. U'Sellis Louisville, Kentucky

          BRIEF FOR APPELLEES: Scott F. Scheynost Louisville, Kentucky

          BEFORE: KRAMER, CHIEF JUDGE; ACREE AND JONES, JUDGES.

          OPINION

          ACREE, JUDGE

         VanMeter 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.

         Factual and Procedural Background

         Thirty-four-year-old 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.

         Groce 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.

         The 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).

         As a 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 citation:

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 concrete[.]

(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.

         In 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 ...

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