NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-17-01063
CROSS-PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-17-01063
OPINION
AFFIRMING
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BEFORE: DIXON, KRAMER, AND LAMBERT, JUDGES.
KRAMER, JUDGE: An administrative law judge ("ALJ") entered an order denying Wade Massengill's claims for an enhancement of his workers' compensation benefits pursuant to KRS1 342.165 against both his employer - Davis Brothers Roofing ("Davis Brothers") - and his alleged "up-the-ladder" employer, D.W. Wilburn, Inc. ("Wilburn"). Subsequently, the Workers' Compensation Board ("Board") vacated and remanded after determining the ALJ's factfinding and legal analysis insufficiently addressed Massengill's claims.
With that said, before addressing the substance of this matter, there are several procedural issues that must be discussed first - beginning with Davis Brothers' fundamental misunderstanding of its roles as appellee and cross-appellee. If Davis Brothers wished to contest, modify, or otherwise enlarge its rights affected by the Board's decision, it was required to file a valid cross-appeal. See, e.g., Farmers Nat'l Bank of Danville v. Moore, 282 Ky. 502, 139 S.W.2d 420, 422 (1940); Lainhart v. Rural Doxol Gas Co., 376 S.W.2d 681, 682 (Ky. 1964);CR2 76.25(9). But, it did not. And in the absence of a cross-appeal, an appellee is only entitled to argue that the lower tribunal reached the correct result for the reasons expressed in its judgment or for any other reasons that were appropriately brought to the lower tribunal's attention. Carrico v. City of Owensboro, 511 S.W.2d 677, 679 (Ky. 1974). Consequently, any contentions of error from Davis Brothers are unauthorized and will be disregarded.
Equally concerning are Wilburn's and Massengill's requests for this Court to review the merits of the ALJ's order (i.e., whether substantial evidence either supported the ALJ's order or compelled a contrary result). We have no authority to do so under the circumstances. Our appellate authority is limited to reviewing decisions of the Board. See KRS 342.290. Here, the Board vacated and remanded—meaning that it rendered no decision regarding the merits of the ALJ's order. See Hampton v. Flav-O-Rich Dairies, 489 S.W.3d 230, 234 (Ky. 2016) (quoting Vacate, BLACK'S LAW DICTIONARY (10th ed. 2014)) ("[W]hen the Board vacates an ALJ's opinion, it 'nullif[ies] or cancel[s]; make[s] void; invalidate[s]' that opinion."). In the absence of any such decision, it is not our prerogative to review the merits. Rather, as our Supreme Court explained,
In the event the Court of Appeals agrees with the Board that the ALJ's opinion is deficient, it is free to affirm the Board's opinion. However, in the event that the Court of Appeals disagrees with the Board regarding thesufficiency of the ALJ's opinion, it must remand to the Board for consideration of the substantive issues raised by [the parties] before the Board.
Id. at 235.
Thus, we cannot entertain Wilburn's or Massengill's requests for a determination of whether substantial evidence supported the ALJ's order. Consequently, because the entirety of Massengill's cross-petition asks this Court to review the evidence supporting the ALJ's order - which we lack the statutory authority to do in the absence of prior review from the Board - we must affirm in that respect.
Finally, we note that in violation of CR 76.25(4)(a), neither Wilburn nor Massengill specifically designated the Board as an appellee. However, so long as the Board has been served - which occurred here - this is not a jurisdictional error. See Belsito v. U-Haul Co. of Kentucky, 313 S.W.3d 549 (Ky. 2010).
With those preliminary matters now resolved, we proceed to the substance of this matter. The Board's opinion accurately sets forth the relevant facts and procedural history, which we incorporate in relevant part as follows:
Massengill filed a Form 101 alleging he injured multiple body parts on June 15, 2015, when the boom lift he was working on tipped over. He and his co-worker, Brandon Cloud ("Cloud"), fell approximately forty feet. The fall caused fatal injuries to Cloud and serious injuries to Massengill. Massengill identified Davis Brothers and Wilburn as Defendants. He noted Wilburn was the general contractor who had employed Davis Brothers.
Massengill indicated Davis Brothers is located in Tennessee, while Wilburn is located in Kentucky. The accident occurred in Frankfort, Kentucky. The Uninsured Employers' Fund ("UEF") was joined as a party since Davis Brothers did not have a Kentucky workers' compensation policy in effect on June 15, 2015.
. . . .
Since the only issue on appeal [before the Board] regards the application of KRS 342.165(1), we will not summarize the medical evidence. We note Massengill timely filed a Form SVC alleging the following safety rules, regulations or statutes had been violated by the employer: "KRS 338.031(1)(a); 29 CFR3 1926.451(c)(2)(iv) employer did not utilize proper equipment; 29 CFR 1926.602(d)." Massengill alleged the "employer did not provide a safe work environment as they did not properly train their employees or utilize the appropriate equipment with the boom lift occupied by Plaintiff causing it to tip over and causing the Plaintiff serious injuries."
Massengill filed the report, citations, and notification of penalty issued by the Kentucky Labor Cabinet, Occupational Safety and Health Program ("KOSH"). The report identified the establishment as Davis Brothers. It noted Wilburn was the general contractor for the Boone National Guard Center Construction Project, and it had hired Davis Brothers to perform roofing and siding work. On the day of the accident, Davis Brothers employees were using a rough terrain forklift ("RT forklift") with a platform attached to the forks to install exterior insulation on a wall. The report indicates Wilburn rented the RT forklift and owned the platform. Donald Carr ("Carr"), foreman for Davis Brothers, operated the RT forklift, while Massengill and Cloudwere on the platform when the accident occurred. The report indicated the following events occurred verbatim:
. . . the employees on the platform motioned to the operator that they were ready to come down. The operator, [Carr], then got into the cab, turned on the machine, and tilted the machine's frame (body) to the left, away from the work area. When this tilt occurred it also tilted the 40 foot boom and 4x16 ft. platform to the left away from the work area. . . . When this frame tilt occurred the operator stated that he lost handle of the lever that conducted the tilt and the frame continued to tilt to the left away from the building tipping the machine completely over. This machine has this frame tilt feature for rough terrain and for unlevel surfaces. When the frame was tilted to the left, while on flat level ground, the weight of the 40 ft. extended boom and the basket started to turn the machine completely over onto its left side slamming onto the concrete. This exposed two employees to a fall of 40+ feet to the concrete ground below killing one employee and hospitalizing the other.
The report noted the RT forklift operator's manual, which was located inside the cab of the forklift, refers to AMSE/ANSI B56.6 1992 safety standards when lifting personnel. Those standards require platforms to be no wider than the overall width of the truck, in this instance 4x10 feet. The platform involved in the accident, owned and supplied by Wilburn, was 4x16 feet. The report noted Terry Gregory ("Gregory"), Wilburn's site superintendent, stated he received verbal assurance from Carr that he could operate the RT forklift. Davis Brothers could not provide the RT forklift training certification for Carr. Davis Brothers forwarded a copyof a training card dated June 19, 2015, after the accident. The report noted the operator's manual stated as follows:
Excessive tilting of the fork carriage or other attachments with an elevated load can cause instability. . . . Only trained and authorized persons should operate and service the machine . . . . Always level the machine before raising the boom. Never tilt frame with the boom raised. Machine may tip and cause serious personal injury and death . . . . LULL strongly recommends that you DO NOT use the rough terrain forklift as a personnel lift. It is designed for
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