Chaney v. Dags Branch Coal Co.

• Decision Date: 24 January 2008
• Docket Number: No. 2007-SC-000093-WC.,2007-SC-000093-WC.
• Citation: 244 S.W.3d 95
• Parties: Eric CHANEY, Deceased, Kathy and Rick Chaney, Co-Administrators, Appellants, v. DAGS BRANCH COAL COMPANY, and Hon. Marcel Smith, Administrative Law Judge and Workers' Compensation Board, Appellees.
• Court: United States State Supreme Court — District of Kentucky

244 S.W.3d 95

Eric CHANEY, Deceased, Kathy and Rick Chaney, Co-Administrators, Appellants, v. DAGS BRANCH COAL COMPANY, and Hon. Marcel Smith, Administrative Law Judge and Workers' Compensation Board, Appellees.

No. 2007-SC-000093-WC.

Supreme Court of Kentucky.

January 24, 2008.

Glenn M. Hammond, Kristie Goff, Glenn M. Hammond Law Office, Pikeville, KY, for Appellant, Eric Chaney, Deceased, et al.

J. Gregory Allen, James William Herald III, Riley & Allen, PSC, Prestonsburg, KY, for Appellee, Dags Branch Coal Company.

OPINION OF THE COURT

KRS 342.165(1) provides a 30% increase in compensation if an accident results in any degree from an employees intentional failure to comply with any specific safety statute or regulation. An Administrative Law Judge (ALJ) determined that Eric Chaney's fatal accident resulted to some degree from a lack of warning devices but that the claimants failed to show the requisite intent. The Workers' Compensation Board affirmed in a 2-to-1 decision as did the Court of Appeals.

We reverse. An employer is presumed to know what specific state and federal statutes and regulations concerning work-place safety require; thus, its intent is inferred, from the failure to, comply. If the violation "in any degree" causes a work-related accident, KRS 342.165(1) applies. The employer failed to place warning devices on the last row of permanent roof supports in violation of 30 C.F.R. § 75.208, and the evidence compelled a finding that the violation to some degree caused the fatal accident.

Eric Chaney was 26 years old. He had about two and one-half years' mining experience when hired as a utility worker in the defendant's underground coal mine. Eleven days later, on June 17, 2004, a section of the roof collapsed and killed him. The roof fall originated in an unsupported, just-completed crosscut and pulled two roof bolts out of the row closest to the cut. Chaney's body was found in by the second row of roof bolts (i.e., between the two rows), crushed by a large piece of roof rock. The mine's approved roof control plan prohibited the continuous miner operator or others in the area from exposing "any portion of their body in by the second row of undisturbed permanent supports." Following investigations by federal and state authorities, the co-administrators of Chaney's estate alleged that his death was work-related and that it resulted from the employer's intentional safety violation.

A report by Franklin N. Strunk, District Manager of the federal Mine Safety and Health Administration (MSHA), stated that the roof fall occurred after the continuous miner completed a 35-foot extended cut, mining a crosscut between the Number 6 and Number 7 entries. The 20-foot entry and 20-foot crosscut widths complied with the approved roof control plan as did the size and spacing of the pillars (30-foot by 30-foot pillars on 50-foot by 50-foot centers) and the spacing of roof bolts (48-inch by 48-inch centers). The report noted that the plan permitted a 35-foot extended cut to be made, but it required extra safety precautions because a typical cross cut at that mine left a 38-foot-long area unsupported until roof bolting was performed. The precautions included prohibiting any portion of the body to be positioned in by the second row of undisturbed permanent supports (roof bolts) and requiring the continuous miner to be operated remotely. The report noted that when warning devices such as surveyors' ribbons are placed on the last row of roof bolts, miners are alerted to the location of unsupported roof, increasing the likelihood that they will be aware of the location of the second row of bolts when extended cuts are being mined. It also noted that 30 C.F.R. § 75.208 requires such a warning device except during the installation of roof supports.

The MSHA report identified three causes of Chaney's death: 1.) the absence of standards, policies, and administrative controls at the mine to ensure that workers would not position themselves in by the second row of undisturbed permanent roof supports when an extended cut was being mined; 2.) the absence of a visible warning device to alert workers to the location of the last row of permanent roof supports; and 3.) the absence of a procedure to assign responsibility for installing warning devices. It noted that although some deficiencies existed in the employer's record-keeping, Chaney received the required sixteen hours of annual training. The report noted that the accident occurred when Chaney was positioned in by the second row of permanent roof supports, immediately after an extended cut was mined. It concluded that the presence of a warning device would have increased the likelihood that he would have recognized his proximity to the last row of roof bolts, but no such device was installed when an unsupported section of roof rock fell in by the second row of bolts and killed him.

The employer received two federal citations. First, it was cited for violating 30 C.F.R. § 75.220(a)(1) by failing to comply with the approved roof control plan. As corrective action, the roof control plan was reviewed and explained to every employee before mining was resumed. Second, it was cited for violating 30 C.F.R. § 75.208 by failing to have a readily visible warning device or a permanent barrier to impede travel beyond the end of permanent roof supports at the approach to the unsupported crosscut between the Number 6 and Number 7 entries. As corrective action, the report indicated that either the roof bolter operator or the continuous miner operator would "install bright red reflectors on the last row of permanent supports prior to the continuous mining machine beginning a new cut."

Tracy Stumbo prepared a fatal accident report for the Kentucky Office of Mine Safety and Licensing. It recommended placing warning markers on the second row of permanent roof supports before an extended cut is taken so that workers can readily see the restricted area. It also recommended that no one work or travel beyond the next-to-last row of permanent roof support while using the extended cut roof control plan. The report cited the employer for violating 805 KAR 7:030(1), by failing to document Chaney's sixteen hours of annual retraining, but noted that his death did not result from non-compliance. It also cited the employer for violating 805 KAR 5:070(15)(5) by failing to comply with its approved roof control plan because Chaney's body was located in by the second row of permanent supports.

When deposed, Stumbo testified that mine operators were required to submit a roof control plan, showing the mine's design, the width of the entries, the type of roof support to be installed, and the safety precautions to prevent roof falls. Stumbo testified that the regulations required a warning device to mark the last row of permanent roof supports. He stated that although the mine's roof control plan for an extended cut prohibited travel in by the second row of permanent roof supports, it contained nothing about warning devices. Questioned about the likelihood that a continuous miner would tear out ribbons placed on roof bolts before a cut was made, he testified that it would not pull out all types of warning devices and that warning devices were not always placed against the roof. He testified that the state did not recommend a particular method and that many mine operators placed them before taking the cut, while others placed them after the equipment was removed. He stated that agency required eight hours of classroom training annually and an additional eight hours of training at the mine site. As part of the latter requirement, mine operators usually reviewed the roof control plan with every individual.

Worley Taylor, a mine inspector for the Office of Mine Safety and Licensing, also participated in the accident investigation. He testified that he found no reflector ribbons around the roof bolts in the area where Chaney was killed. Asked why the agency failed to issue a citation on that basis, he replied that it expected them to be installed when the miner backed out after completing a cut. He noted that it did cite the employer for failing to comply with its roof control plan, which probably caused Chaney's death, and for failing to document that he received eight annual hours of retraining in addition to the eight documented hours of classroom retraining.

Johnny Mitchell testified that he was operating the continuous miner on the morning of June 17, 2004, cross cutting a seam of coal between the Number 6 and Number 7 entries. He explained that the miner is a large machine that is operated remotely and that Chaney had been Moving its cable. He stated that he told Chaney that he was finished and heard the rock fall as he was getting up to leave the area. Mitchell testified that warning devices show the location of the last row of bolts and help workers to avoid areas where the roof is unprotected. He did not recall whether any flags, markers, or other devices were in the area where the accident occurred and stated that the continuous miner sometimes tore them down. Although he had hung such devices on occasion, he had also seen the roof bolter hang them. He did...