             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

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                                               RENDERED: FEBRUARY 19, 2015
                                                      NOT TO BE PUBLISHED

               ,Suprrntr &turf of (4,4rttfuritv
                               2014-SC-000166-WC


ALICIA HOWETH-ENGLAND                                                   APPELLANT



                    ON APPEAL FROM COURT OF APPEALS
V.                     CASE NO. 2013-CA-000933-WC
                   WORKERS' COMPENSATION NO. 10-78249



KENTUCKY DEPARTMENT OF
CORRECTIONS; RAFAEL PRIETO, M.D.;
HONORABLE ALISON E. JONES,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                             APPELLEES



                   MEMORANDUM OPINION OF THE COURT

                                    AFFIRMING

      Appellant, Alicia Howeth-England, appeals from a Court of Appeals

opinion which affirmed a decision of the Workers' Compensation Board that

denied her enhanced benefits due to a safety violation. Howeth-England

argues that she is entitled to the, safety violation penalty enhancement because

her employer failed to alert her to the existence of or fix a metal plate located

on the floor which caused her to fall. For the below stated reasons, we affirm

the Court of Appeals.

      Howeth-England was employed by the Kentucky Department of

Corrections ("DOC") as a corrections officer at the Western Kentucky
Correctional Complex ("WKCC"). On August 29, 2010, while walking through a

prison dormitory, she stubbed her toe on a metal plate in the floor, causing her

to fall and injure her back. As a result of her fall, Howeth-England has

undergone two lumbar hemilaminotomy surgeries at L5-S 1. She has not

returned to work. Howeth-England claims she is physically unable to return to

employment as a corrections officer and that she cannot work full time due to

back pain and spasms in her lower back and left leg. She filed for workers'

compensation.

      As a part of the claim, James Purdy, a safety specialist at WKCC,

testified. He stated that the metal plate, which Howeth-England tripped on,

was a part of a dormitory which was constructed more than twenty years ago.

The plate rose approximately three-eighths of an inch above the floor and was a

brown color approximately a shade darker than the floor. Since the accident,

the plate has been painted yellow and its edges ground down. Purdy was

unaware of any prior injuries caused by the plate or any documented

complaints about it.

      Howeth-England also testified and stated that the area where the plate

was located was "kind of dark." She was unaware the plate existed until she

fell. She believed the metal plate was approximately twenty inches by twenty

inches.

      After reviewing the evidence, the Administrative Law Judge ("ALI") issued

an opinion, order, and award granting Howeth-England temporary total

disability benefits and partial permanent disability ("PPD") benefits based on a



                                        2
twenty percent whole person impairment rating. The ALJ also found the metal

plate constituted a safety violation pursuant to KRS 338.031 and awarded

Howeth-England a thirty percent increase in her PPD benefits pursuant to KRS

342.165(1).

         DOC filed a petition for reconsideration' requesting additional findings of

fact on the alleged safety violation and arguing that the safety violation penalty

should not be applied. The ALJ affirmed her previous opinion but did amend it

to include the following additional findings:

         [DOC] relies on the fact that no one had previously complained
         about or been injured by the plate in the floor. The ALJ finds that
         this fact is not sufficient to avoid liability for a safety violation
         penalty. An employer should not be able to avoid taking corrective
         measure to ensure the safety of its employees until one of its
         employees sustains an injury. Moreover, the ALJ does not believe
         that an employer should be permitted to remain "willfully blind" to
         obvious hazards that its employees might encounter in the
         workplace.
         While certain hazards might not be easily ascertainable, and
         therefore, not sufficient to give rise to a finding of an intentional
         violation, the A1.0 found that this case presented the type of safety
         violation that even a layperson could easily recognize. In other
         words, it is common sense that an unmarked, raised plate in a dim
         walkway poses a tripping hazard.

         The DOC appealed the ALJ's decision to apply the safety violation penalty

to the Board. The Board agreed with the DOC that the safety violation penalty

should not apply and reversed the ALJ. In so doing, the Board stated:

         Here, the record indicates [DOC] could not have known the metal
         plate posed any kind of a safety hazard before August 29, 2010.
         To permit the factual scenario in the case sub judice to justify a
         safety penalty would broaden the application of the statute to


1   Howeth-England also filed a petition for reconsideration which is not pertinent to
     this appeal.


                                              3
      include factual situations not contemplated by the Supreme Court
      and the legislature.

Howeth-England appealed to the Court of Appeals arguing that the Board erred

as a matter of law by substituting its own judgment for that of the ALJ's as to

the weight of evidence on a question of fact. The Court of Appeals affirmed,

and this appeal followed.

      As an initial matter, we note that the ALJ has sole discretion to evaluate

the weight of the evidence presented.    Whittaker v. Rowland, 998 S.W.2d 479,

481 (Ky. 1999). On appeal, the Board's review is limited to determining

whether the evidence is sufficient to support the findings of the ALJ, or if the

evidence compels a different result.    Western Baptist Hospital v. Kelly, 827

S.W.2d 685, 687 (Ky. 1992). The Court of Appeals is only required to reverse

the Board"if it overlooked or misconstrued controlling statutes or precedent, or

committed an error in assessing the evidence so flagrant as to cause gross

injustice' Id. at 687-688.

      The first question which must be answered in this appeal is whether the

DOC violated the "general dutiesP provision of Kentucky's Occupation Safety and

Health Act, KRS 338.031(1). Then we must determine whether that violation

entitles Howeth-England to the enhanced safety violation benefits pursuant to

KRS 342.165(1).


                    I. THE DOC VIOLATED KRS 338.031(1)

      KRS 338.031(1), Kentucky's general duties statute, states that, "Each

employer: (a) Shall furnish to each of his employees employment and a place of



                                          4
employment which are free from recognized hazards that are causing or are

likely to cause death or serious physical harm to his employees; (b) Shall

comply with occupational safety and health standards promulgated under this

chapter" A violation of KRS 338.031 occurs when the four-part test outlined in

Lexington-Fayette Urban County Government v. Offutt, 11 S.W.3d 598, 599 (Ky.

App. 2000), is satisfied. That test states that an employer is deemed to have

violated KRS 338.031 when:

      (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.

Id. at 599 (quoting Nelson Tree Services, Inc. v. Occupational Safety and Health

Review Commission, 60 F.3d 1207, 1209 (6th Cir. 1995)).

      Performing the Offutt test indicates that the DOC violated KRS

338.031(1). First, the raised metal plate upon which Itoweth-England tripped

presented a hazard to DOC employees. Not only did the metal plate rise almost

three-eighths of an inch above the floor, but it was also a color which was only

a shade different from the tile color and was located in an area of the dormitory

that was dimly lit. Second, a metal plate or any item which constitutes a

tripping risk for employees is a hazard which is, or should be, generally

recognized by employers. Third, the metal plate was a hazard which, while not

likely to cause death, can cause serious physical harm to anyone who trips

over it. This is evidenced by the serious injuries Howeth-England has suffered

in this matter. Finally, a feasible means existed to remedy the hazard that the



                                        5
metal plate represented. The DOC ground down the edges of the metal plate

and painted it yellow after Howeth-England's accident indicating that a means

existed to reduce the risk of tripping. Thus, the metal plate which Howeth-

England tripped over at WKCC satisfies the Offutt test, and accordingly

constituted a violation of KRS 338.031(1). However, as shown by the next

section,' a finding that the DOC committed a violation of the `general duties?'

provision of Kentucky's Occupation Safety and Health Act does not

automatically entitle Howeth-England to the safety violation enhancement.


      II. THE DOC DID NOT INTENTIONALLY VIOLATE THE GENERAL
                            DUTIES STATUTE

      A violation of KRS 338.031(1) can satisfy the requirement in KRS

342.165 that a"specific statute be intentionally ignored. However, not every

violation of KRS 338.031(1) is egregious enough to justify granting a safety

violation enhancement. Before the safety violation enhancement is applied it

must be shown that the employerIntentionally disregarded a safety hazard

that even a lay person would obviously recognize as likely to cause death or

serious physical harm!' Hornback v. Hardin Memorial Hospital, 411 S.W.3d

220, 226 (Ky. 2013).

      Several cases have held that a violation of KRS 338.031(1) entitles a

claimant to receive the safety violation enhancement. In Apex Mining v.

Blankenship, 918 S.W.2d 225 (Ky. 1996), an employee was injured in an

accident caused by the defective condition of a road grader he was operating.

The safety violation enhancement was applied because It]here was substantial



                                         6
evidence that the employer was aware of the defective condition of the grader,

and it is apparent, even to the lay person, that a piece of heavy equipment

without breaks, with a decelerator that is not in the proper condition, and with

a throttle which is fastened in the wide open position creates a safety hazard."

Id. at 229.

      The safety penalty also was applied for a violation of KRS 338.031(1) in

Brusman v. Newport Steel Corp., 17 S.W.3d 514 (Ky. 2000), when an employee

was crushed to death while riding on the side of a railroad car. The accident

occurred because there existed a "pinch point" between the car the employee

was riding and an adjoining railcar which had walls that bowed out

approximately two feet. The safety violation penalty was justified because, "(1)

an obvious hazard was created by the presence of railroad cars with bowed

sides; (2) complaints about such cars had been raised at a safety meeting a

month before the accident; and (3) workers routinely rode railway cars,

including the lead car without punishment." Id. at 520. Finally in Hornback,

411 S.W.3d at 227, where an employee was seriously injured by falling down

an elevator shaft due to a failed rescue attempt, the safety violation penalty

was applied because the employer, in attempting the rescue, did not "take any

prophylactic measures [to] prevent Hornback from suffering her ultimate fate of

falling into the open elevator shaft." Key to this holding was a finding that the

employer was made aware of the dangers of a poorly performed elevator rescue

and intentionally disregarded them.




                                         7
      Comparing the facts of the present matter to prior case law, we cannot

find that the DOC committed an intentional violation of the general duties
                              ,




statute. In the above cited cases, the employer was aware of the dangers which

ultimately caused the employee's severe injuries or death. However, the

employer in all of those cases decided to either disregard general safety

protocols or ignore obviously dangerous issues. In contrast, Purdy, the safety

specialist at WKCC, testified that the DOC was unaware of any prior injuries

caused by the plate during the dormitory's twenty year history or any

documented complaints about it by any employee. Based on this, and the fact

that uneven floors such as this are not a blatantly dangerous condition, the

DOC's failure to recognize that the plate could be a tripping hazard is not

egregious enough to find that an intentional violation of the general duties

statute occurred. Thus, Howeth-England is not entitled to enhanced benefits

for a safety violation.

       For the above stated reasons we affirm the decision of the Court of

Appeals.

       Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ.,

sitting. All concur.




                                        8
COUNSEL FOR APPELLANT,
ALICIA HOWETH-ENGLAND:

Rickie A. Johnson
Rodger Wayne Lofton


COUNSEL FOR APPELLEE,
KENTUCKY DEPARTMENT OF CORRECTIONS:

Kenneth Lance Lucas
Sarah C. Rogers


COUNSEL FOR APPELLEE,
RAFAEL PRIETO, M.D.:

Rafael L. Prieto, M.D., pro se




                                 9
