August 20, 2018
The question the court had to decide in this case: Did the worker intentionally not wear his PPE?
Shawn Smith was an employee of Judy Construction in Kentucky. On Dec. 2, 2015, Smith fell about 40 feet from a bridge and suffered significant injuries to his spleen, bowels, head, wrists, elbow, knees, back, ribs and pelvis.
Smith filed for workers’ comp and was awarded permanent partial disability benefits.
An administrative law judge refused to decrease Smith’s benefits as requested by his employer because he violated a safety rule.
Kentucky law says:
“If an accident is caused in any degree by the intentional failure of the employee to use any safety appliance furnished by the employer or to obey any lawful and reasonable order or administrative regulation of the commissioner or the employer for the safety of employees or the public, the compensation for which the employer would have been liable under this chapter shall decreased 15% in the amount of each payment.”
The ALJ found Smith didn’t intentionally fail to use his harness when he fell from the bridge. The Kentucky Workers’ Compensation Board upheld the ruling. Judy Construction appealed, and a state court recently handed down its decision.
In her opinion, the ALJ wrote:
“Smith had worn his harness all day and was wearing his hard hat. On this occasion, after taking his harness off to go to the bathroom near the end of the day, he simply without thinking went to help get the last form down after his supervisor said once that was done they would get ready to head home. In that moment while trying to hurry to go home, Smith inadvertently forgot to put back on his harness. The accident occurred not as a result of any willful misconduct of Smith but due to a simple act of negligence.”
The appeals court said the burden was on Judy Construction to prove that Smith intentionally failed to use the safety harness. The only evidence concerning Smith’s failure to use the harness was from Smith himself. The ALJ found his testimony credible. The court said there was no evidence provided by Judy Construction to show Smith’s failure to use his harness was intentional.
For that reason, the appeals court upheld the decision: Smith’s workers’ comp benefits wouldn’t be reduced by 15% for intentionally violating a safety rule.
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