Anderson v. Par Elec. Contractors, Inc., 118,999
| Decision Date | 21 November 2018 |
| Docket Number | No. 118,999,118,999 |
| Citation | 430 P.3d 493 (Table) |
| Parties | Thomas J. ANDERSON, Appellee, v. PAR ELECTRICAL CONTRACTORS, INC., and Old Republic Insurance Co., Appellants. |
| Court | Kansas Court of Appeals |
John D. Jurcyk, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellants.
Steven A. Ediger, of Steven A. Ediger, P.A., of Westwood, for appellee.
Before Arnold-Burger, C.J., Green, J., and Robert J. Frederick, District Judge, assigned.
Thomas Anderson was electrocuted while working on a job for PAR Electrical Contractors. Anderson filed for workers compensation benefits. The administrative law judge (ALJ) awarded Anderson benefits. On appeal, the Workers Compensation Board affirmed. PAR petitioned for judicial review, arguing that Anderson should be precluded from recovering benefits because he violated its strict safety policy, and PAR did not approve of his actions. For the reasons stated later, we reject PAR's arguments. Accordingly, we affirm.
Anderson worked as a journeyman lineman for PAR. On August 18, 2014, Anderson was working on a project for PAR, transferring electrical lines from old utility poles to new utility poles. Anderson and an apprentice went up in a lift bucket to move the overhead lines from the old utility pole to a new one. In order to transfer the lines, Anderson and the apprentice had to move a PVC pipe housing cables from the old pole to the new pole. They needed to shorten the PVC pipe before it could be transferred. To shorten the PVC pipe, Anderson and the apprentice took turns cutting the PVC pipe on their respective ends with a battery-powered rotary saw. While one man was sawing, the other man held onto the cables. The workers believed the cables were dead, meaning they were not carrying an electrical current. According to PAR, the cables could not possibly have been live.
PAR enforces a safety rule referred to as the "five-foot rule." Under the 5-foot rule, an employee who is within 5 feet of an energized source is required to wear protective gear, including rubber gloves and sleeves.
Neither Anderson nor the apprentice wore rubber sleeves or gloves while they were shortening the PVC pipe. Instead, Anderson wore regular leather work gloves as he used the saw. Anderson chose not to wear rubber gloves because he believed he was more than 5 feet from the nearest energized source and because he believed that the bulky rubber gloves would prevent him from operating the saw safely. According to Anderson, the saw had a trigger guard with a small hole where he had to place his finger in order to engage the saw. Anderson claims the hole was too small for him to safely pull his finger out and stop the saw while wearing rubber gloves. Anderson emphasized that this posed an elevated safety risk because he and the apprentice were using the saw at approximately eye level.
While the apprentice was using the saw and Anderson was holding the cables, electricity burnt both of Anderson's arms. An ambulance came to the worksite and took Anderson to the hospital. Anderson spent 10 days in the trauma burn unit and received skin grafts on both arms. His medical bills from the incident totaled over $100,000.
PAR investigated the incident and even attempted to recreate the scene of the accident via photographs. The investigation concluded that several preventable unsafe acts occurred. One of the conclusions was that Anderson violated a safety rule and engaged in an unsafe work practice by failing to use rubber gloves. PAR fired the onsite foreman on the day of the accident. PAR fired Anderson in a letter; the letter said he was fired because he violated a safety rule, but it did not specify which safety rule. The ultimate source of the electricity that shocked Anderson is unknown.
Anderson filed for a hearing before an ALJ in the Division of Workers Compensation, seeking workers compensation from PAR. Anderson argued that he is entitled to workers compensation benefits because he did not violate a safety rule; he also argued he was not within 5 feet of an energized source at the time of the accident. Next, he argued that if he did violate the 5-foot rule, he did not do so willfully or recklessly. Anderson also argued that PAR approved of his decision not to wear rubber gloves at the time of the accident. Finally, Anderson argued that his decision not to wear rubber gloves was reasonable under the totality of the circumstances.
PAR opposed Anderson's request for benefits. First, PAR argued that Anderson should be denied benefits because he willfully failed to use safety equipment the company provided for him. Second, PAR argued that Anderson should be denied benefits because he willfully or recklessly disregarded safety rules. Finally, PAR argued that it did not approve of Anderson's decision not to wear rubber gloves at the time because PAR has a "strict no tolerance policy" for safety violations. All of these arguments hinge on PAR's claim that Anderson was violating the 5-foot rule by being within 5 feet of an electrified source but not wearing rubber gloves at the time he was shocked.
The ALJ ruled for Anderson, finding he was eligible for benefits. The ALJ found that "the credible evidence proves" Anderson violated the 5-foot rule and that the violation resulted in his injuries. The ALJ concluded that Anderson was negligent when he violated the rule, but not reckless. Finally, the ALJ also concluded that PAR, through the supervisor on site, approved of Anderson's decision not to wear rubber gloves. Because the ALJ concluded that PAR approved of Anderson's decision not to wear gloves, the ALJ did not reach the question of whether Anderson's actions were willful.
PAR sought review of the decision by the Workers Compensation Board. PAR argued that the ALJ erred because Anderson's violation of the 5-foot rule was either willful or reckless. PAR also argued that "the overwhelming weight of the evidence establishes that the employer did not approve" of Anderson's failure to use rubber gloves.
Anderson did not cross-appeal to the Board, but he responded to PAR's appeal. Anderson argued that there was no substantial evidence that he violated the 5-foot rule. He next argued that even if he did violate the 5-foot rule, he was nonetheless entitled to benefits because PAR approved of his actions. Finally, he argued that if he did violate the 5-foot rule, he did not do so willfully or recklessly.
The Board affirmed the ALJ's award. The Board concluded that Anderson did violate the 5-foot rule, but he did so negligently and not recklessly. The Board also concluded that Anderson was entitled to benefits despite violating the 5-foot rule because PAR approved of his actions. The Board wrote that because it concluded PAR approved of Anderson's actions, it did not need to address whether Anderson's decision to forego rubber gloves was willful or whether it was reasonable under the totality of the circumstances. PAR timely filed for judicial review.
PAR raises four issues before this court. First, PAR argues that the Board's finding that PAR approved of Anderson's actions was not supported by substantial evidence. Second, PAR argues that the Board misinterpreted the law when it concluded that PAR approved of Anderson's actions. Third, PAR argues that the Board misinterpreted the law when it concluded that Anderson's violation of the 5-foot rule was not reckless. Fourth, PAR argues that the Board's finding that Anderson was not reckless was not supported by substantial evidence. In his response, Anderson responds to PAR's arguments and raises two additional issues. First, Anderson argues that there was no substantial evidence that he violated the 5-foot rule. Second, Anderson argues that his decision to take off his rubber gloves was reasonable under the circumstances.
In workers compensation proceedings, the burden is first on the claimant to show that he or she has a right to benefits. Once the claimant makes this showing, the burden shifts to the employer to show an exception barring compensation applies. Messner v. Continental Plastic Containers , 48 Kan. App. 2d 731, 751, 298 P.3d 371 (2013). Here, the ALJ found that Anderson was entitled to an award because his injury arose from the course of his employment. PAR did not appeal this finding to the Board or this court. The burden is therefore on PAR to show that exceptions to the Workers Compensation Act apply and preclude Anderson from recovering benefits.
This court cannot reweigh evidence or engage in de novo review when reviewing a Board decision for substantial evidence. Williams v. Petromark Drilling , 299 Kan. 792, 795, 326 P.3d 1057 (2014).
Arguments about whether the Board misinterpreted or misapplied a statute are subject to de novo review. Jones v. U.S.D. No. 259 , 55 Kan. App. 2d 567, 575, 419 P.3d 62 (2018). This court does not give deference to the...
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