Bowlin Grp., LLC v. Sec'y Labor

• Decision Date: 11 July 2014
• Docket Number: No. 2013–CA–000432–MR.,2013–CA–000432–MR.
• Citation: 437 S.W.3d 738
• Court: Kentucky Court of Appeals
• Parties: BOWLIN GROUP, LLC, Appellant v. SECRETARY OF LABOR, COMMONWEALTH of Kentucky; and Kentucky Occupational Safety and Health Review Commission, Appellees.

437 S.W.3d 738

BOWLIN GROUP, LLC, Appellant

v.SECRETARY OF LABOR, COMMONWEALTH of Kentucky; and Kentucky Occupational Safety and Health Review Commission, Appellees.

No. 2013–CA–000432–MR.

Court of Appeals of Kentucky.

July 11, 2014.

Robert A. Dimling, Cincinnati, OH, Griffin Terry Sumner, Kyle D. Johnson, Louisville, KY, for appellant.

David N. Shattuck, Office of General Counsel, Frankfort, KY, for appellee, Secretary of Labor.

Frederick G. Huggins, Frankfort, KY, for appellee, Kentucky Occupational Safety and Health Review Commission.

Before ACREE, Chief Judge; TAYLOR and VANMETER, Judges.

OPINION

ACREE, Chief Judge:

Bowlin Group, LLC, appeals from the February 7, 2013 Opinion and Order of the Franklin Circuit Court which affirmed the Decision and Order of the Kentucky Occupational Safety and Health Review Commission which upheld the Secretary of Labor's citation of Bowlin for a safety violation. We affirm.

I. Facts and Procedure

The safety violation came to the attention of the Secretary as a result of an accident and injury suffered by a Bowlin employee on April 12, 2009. Bowlin, which constructs and repairs transmission and distribution lines for power companies,¹ had employed a crew of workers to reconductor ² distribution lines along Kentucky Highway 79 in Meade County, Kentucky.

This reconductoring process required Bowlin workers to string new lines alongside the existing energized lines to avoid a power disruption. The new line was connected to a “tensioner,” a machine incorporating a winch to keep a line taut. At some point the new line became energized, though this fact was unknown to any of the workers. Consequently, electricity was flowing from the energized lines through the new lines to the tensioner mounted on a Bowlin truck.

The risk of a new line becoming electrified under such circumstances is anticipated by regulations designed to protect the safety of workers. We will address the specific regulation in greater detail later. However, it is sufficient to say generally, as a matter of elementary physics, that injury from contact with electricity can be avoided in three ways: (1) isolating oneself from it ( i.e., staying away from the source of electricity), (2) insulating oneself from it ( i.e., handling a source of electricity with a protective insulating barrier between the source and the human), or (3) by “grounding” the electricity ( i.e., diverting the electrical current to the earth by means of a wire or other conductor). None of these means of avoiding human contact with electricity was employed in this case.

While stringing one of the new lines, Bowlin foreman Ronald Douglas observed that the new line had fallen slack. Douglas shouted for a crew member to increase the line's tension. To do this, an employee had to turn the winch on the tensioner mounted in the truck. Bowlin employee Patrick Haste responded. The truck had not been grounded; that is to say, there was no conductor to divert any leaking current, or fault current, from the truck to the earth. Additionally, Haste was not wearing any insulating personal protective equipment (PPE) that would have maintained a barrier between the electric current and his skin. When Haste touched the tensioner, then carrying the current from the line, he suffered severe electrical burns. Haste's hip was badly burned, his foot injured, and his right arm was injured so severely that it required amputation.

Bowlin notified the Kentucky Occupational Safety and Health Administration of the accident. Andrew Rapp, a compliance officer, conducted an investigation, after which the Secretary of Labor issued Bowlin one citation for a serious violation.³

Bowlin challenged the citation. A hearing officer conducted an evidentiary hearing, after which she concluded the citation had been properly issued, and rejected Bowlin's employee-misconduct defense. The hearing officer recommended that the citation be upheld. Bowlin requested review by the Commission. In its Decision and Order entered on March 6, 2012, the Commission upheld the citation. Bowlin appealed to the Franklin Circuit Court which affirmed the citation. This appeal followed. Additional facts will be discussed as they become relevant to our review.

II. Standard of Review

A court of review may only overturn an agency's decision “if the agency acted arbitrarily or outside the scope of its authority, if the agency applied an incorrect rule of law, or if the decision itself is not supported by substantial evidence on the record.” Dep't of Labor v. Morel Const. Co., Inc., 359 S.W.3d 438, 442 (Ky.App.2011). Our function here “is one of review, not of reinterpretation.” Id.

We review questions of fact to determine “whether the agency's decision was supported by substantial evidence or whether the decision was arbitrary or unreasonable.” Id. (citation omitted). Kentucky continues to adhere to the longstanding definition of substantial evidence “as that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person.” Bowling v. Natural Res. & Envtl. Prot. Cabinet, 891 S.W.2d 406, 409 (Ky.App.1994) (citation omitted).

In contrast, we review questions of law de novo, affording the agency's interpretation no deference. Morel Const. Co., 359 S.W.3d at 442.

Before proceeding further, we pause to observe that the Kentucky Occupational Safety and Health Act (KOSHA) is patterned after its federal counterpart; for that reason, “KOSHA should be interpreted consistently with federal law.” David Gaines Roofing, LLC v. Kentucky Occupational Safety & Health Review Comm'n, 344 S.W.3d 145, 148 (Ky.App.2011).

III. Analysis

Before this Court, Bowlin claims three errors. First, Bowlin claims the circuit court erred when it refused to vacate the Commission's decision notwithstanding what Bowlin believes to be the Commission's improper interpretation of the cited standard. Second, Bowlin claims error in the circuit court's finding that substantial evidence supports the Commission's finding that Bowlin violated the cited standard. Finally, Bowlin claims the circuit court erred by rejecting its employee-misconduct affirmative defense.

A. Preference for Grounding

Bowlin first argues that the Commission improperly interpreted the cited standard, 29 C.F.R.⁴ § 1926.955(c)(3), as indicating a preference for grounding.⁵ Bowlin contends the Commission's decision must be vacated in light of this erroneous interpretation. We are not persuaded.

The Secretary of Labor cited Bowlin for failing to comply with 29 C.F.R. § 1926.955(c)(3). That regulation requires employers:

Where there is a possibility of the conductor [in this case, the new line] accidentally contacting an energized circuit or receiving a dangerous induced voltage buildup, to further protect the employee from the hazards of the conductor, the conductor being installed or removed shall be grounded or provisions made to insulate or isolate the employee.

Id. In its decision, the Commission interpreted 29 C.F.R. § 1926.955(c)(3) to include a preference for grounding over insulating or isolating. According to the Commission:

“Or provisions made” separates grounding from insulating or isolating, placing emphasis on the former; the regulation says “shall be grounded” but shall be isolate or shall be insulate is not even grammatically correct. In other words, the standard can be read to say “the conductor shall be grounded or other provisions made ...” The word other is implied or understood. But even though the standard has a preference for grounding, [an employer] may still elect to insulate or isolate instead.

(Commission's Decision on Review at 24).

Bowlin contends the Commission's interpretation of 29 C.F.R. § 1926.955(c)(3) contradicts the regulation's plain language, which permits an employer to ground the conductor or insulate its employees or isolate its employees. Bowlin asserts the use of the word “or” reflects a choice of equally acceptable alternatives; there is nothing in the regulation, Bowlin argues, that suggests one method is preferred over another. Continuing this argument, Bowlin claims reversal is required because the Commission's erroneous interpretation permeated its decision.

29 C.F.R. § 1926.955(c)(3) is presented in the disjunctive. Employing the disjunctive, the regulation identifies three alternative compliance methods: grounding, insulating, or isolating. See Board of Nat'l Missions of Presbyterian Church in U.S. of America v. Harrel's Tr., 286 S.W.2d 905, 907 (Ky.1956) (“In common and natural usage the word ‘or’ is disjunctive and expresses an alternative as between either of two or more separate subjects or conditions and implies an election or choice as between them.”). Accordingly, we agree with Bowlin that the regulation does not indicate a preference for grounding.

We reject, however, Bowlin's claim that reversal is mandated because the “Commission's legal error permeated its Decision.” (Appellant's Brief at 8). Bowlin maintains that permeation is self-evident because “throughout the entirety of its Decision, [the Commission] referenced Bowlin's purported ‘failure’ to ground the tensioner truck.” (Appellant's Brief at 9). Consideration of the interplay among the three options under the regulation illuminates a significance with regard to the grounding option that, understandably, gives an appearance that it is preferred.

The option of isolation was inherently impossible given that someone had to actually operate the tensioner. In accordance with its method of operation, Bowlin consciously determined that the truck in which the tensioner was mounted not be grounded. This eliminated the last “option” available so that the sole remaining way to comply with the regulation was insulation; insulating its workers, i.e., requiring that they wear gloves and sleeves, effectively became mandatory if employees were to be safe from electrocution and lesser degrees of...