Dep't of Labor v. Morel Constr. Co., No. 2010–CA–000193–MR.

CourtCourt of Appeals of Kentucky
Writing for the CourtMOORE, Judge
Citation359 S.W.3d 438
Decision Date28 January 2011
Docket NumberNo. 2010–CA–000193–MR.
Parties DEPARTMENT OF LABOR, now Kentucky Labor Cabinet, Appellant, v. MOREL CONSTRUCTION CO., INC.; Midwest Steel, Inc.; East Iowa Deck Support, Inc. ; and Kentucky Occupational Safety and Health Review Commission, Appellees.

359 S.W.3d 438

DEPARTMENT OF LABOR, now Kentucky Labor Cabinet, Appellant,
v.
MOREL CONSTRUCTION CO., INC.; Midwest Steel, Inc.; East Iowa Deck Support, Inc. ; and Kentucky Occupational Safety and Health Review Commission, Appellees.
1

No. 2010–CA–000193–MR.

Court of Appeals of Kentucky.

Jan. 28, 2011.
Court of Appeals March 25, 2011.

Rehearing Denied April 25, 2011.

Supreme Court March 14, 2012.


Discretionary Review Denied by

359 S.W.3d 441

James R. Grider, Jr., Frankfort, KY, for appellant.

Ann K. Guillory, Louisville, KY, Glenn J. Fuerth, New York, NY, for appellees, Midwest Steel, Inc., and East Iowa Deck Support, Inc.

Robert J. Schumacher, Louisville, KY, for appellee, Morel Construction, Inc.

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

Before CAPERTON, MOORE, and VANMETER, Judges.

OPINION

MOORE, Judge:

Appellee, Morel Construction Company, Inc., performed work at a site located at the Kentucky state fairgrounds in Louisville. It subcontracted roofing work to Appellee, Midwest Steel, Inc., which in turn subcontracted to Appellee, East Iowa Deck Support, Inc. Four East Iowa employees worked at a height of 42 feet, installing large rectangular pieces of sheet metal decking, each measuring thirty feet by three feet, to make a flat roof. An inspecting compliance officer with the Kentucky Labor Cabinet visited the work site, observed the four East Iowa employees on the flat roof, and cited Morel Construction Company, Inc., Midwest Steel, Inc., and East Iowa Deck Support, Inc., Appellees, for serious violations of standards promulgated under the authority of the Kentucky Occupational Safety and Health Act (KOSHA), Kentucky Revised Statutes (KRS) 338.011 through 338.991.

The two standards at issue in this matter both apply to steel erection. The first citation, referred to as "citation 1, item 1," related to the failure of East Iowa employees to wear and utilize fall protection equipment as mandated in 803 Kentucky Administrative Regulation (KAR) 2:417 § 3(1)(b). The second, referred to as "citation 1, item 2," related to an alleged failure of East Iowa's employees to follow the standard for installing metal decking, set forth in 29 Code of Federal Regulation (C.F.R.) § 1926.754(e)(5)(i).2 These respective citations were consolidated for review before Kentucky's Occupational Safety and Health Review Commission. In an October 7, 2008 opinion and order, the Commission affirmed that these citations reflected KOSHA violations and classified these violations "serious," per KRS 338.911. However, in its subsequent review, and pursuant to a December 30, 2009 opinion and order, the Franklin Circuit Court reclassified the Appellees' violation of the standard set forth in 803 KAR 2:417 § 3(1)(b) as "other than serious." Also, the circuit court vacated the alleged violation of 29 C.F.R. § 1926.754(e)(5)(i) because it found that the method of installation utilized by the Appellees complied with that standard.

The Cabinet now appeals the opinion and order of the Franklin Circuit Court. After careful review, we find that the circuit court erred both in reclassifying the former violation to "other than serious," and in vacating the latter. To that extent, we reverse the circuit court's decision. Additional facts will be addressed, as they become relevant, within our analysis of each citation.

STANDARD OF REVIEW

In reviewing an agency decision the reviewing court may only overturn that

359 S.W.3d 442

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. Ky. State Racing Comm'n v. Fuller, 481 S.W.2d 298, 300–301 (Ky.1972). When reviewing issues of law, the court may review them de novo without any deference to the agency. Mill St. Church of Christ v. Hogan, 785 S.W.2d 263, 266 (Ky.App.1990).

On questions of fact, the court's review is limited to an inquiry of "whether the agency's decision was supported by substantial evidence or whether the decision was arbitrary or unreasonable." Cabinet for Human Res., Interim Office of Health Planning and Certification v. Jewish Hosp. Healthcare Serv., Inc., 932 S.W.2d 388, 390 (Ky.App.1996). Substantial evidence means "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Owens–Corning Fiberglas v. Golightly, 976 S.W.2d 409, 414 (Ky.1998).

If there is substantial evidence in the record to support the agency's findings, the court must defer to those findings even though there is evidence to the contrary. Ky. Comm'n on Human Rights v. Fraser, 625 S.W.2d 852, 856 (Ky.1981). Likewise, a court may not substitute its own judgment as to the inferences to be drawn from the evidence of record for that of the administrative agency. Railroad Comm'n v. Chesapeake & Ohio Ry., 490 S.W.2d 763, 766 (Ky.1973). If the court finds the rule of law was applied to facts supported by substantial evidence, the final order of the agency must be affirmed. Brown Hotel Co. v. Edwards, 365 S.W.2d 299, 302 (1963). The function of the court in administrative matters "is one of review, not of reinterpretation." Ky. Unemployment Ins. Comm'n v. King, 657 S.W.2d 250, 251 (Ky.App.1983).

ANALYSIS

We begin with a discussion of how Kentucky law interprets KOSHA. KOSHA is patterned after its federal counterpart, the Federal Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C.A. §§ 651 – 678 (2001). By way of background,

[t]he Occupational Safety and Health Act's stated purpose is to provide "so far as possible every working man and woman in the Nation safe and healthful working conditions...." Whirlpool Corp. v. Marshall, 445 U.S. 1, 12, 100 S.Ct. 883, 890, 63 L.Ed.2d 154 (1980). Its purpose is neither punitive nor compensatory, but rather forward-looking; i.e., to prevent the first accident. Mineral Industries & Heavy Construction Group, v. OSHRC, 639 F.2d 1289, 1294 (5th Cir.1981). To implement the statutory purpose, Congress imposed dual obligations on employers to comply both with a "general duty clause" requiring that the employer free the workplace of all recognized hazards, 29 U.S.C. § 654(a)(1), and a "special duty clause" which requires compliance with mandatory occupational safety and health standards issued by the Secretary, 29 U.S.C. § 654(a)(2).

Brock v. L.E. Myers Co., High Voltage Div., 818 F.2d 1270, 1275 (6th Cir.1987).

KOSHA tracks the Federal Act in most respects and, pursuant to KRS 338.061(2), the Kentucky Occupational Safety and Health Standards Board is authorized to adopt federal standards for occupational safety and health as KOSHA standards. The Kentucky Supreme Court has interpreted the two Acts consistently, and we have often turned to Federal decisions for guidance in interpreting KOSHA. See Ky. Labor Cabinet v. Graham, 43 S.W.3d 247, 253 (Ky.2001) ; see also Lexington–Fayette

359 S.W.3d 443

Urban County Gov't v. Offutt, 11 S.W.3d 598 (Ky.App.2000) (finding federal law persuasive authority to determine whether there had been a violation of KRS 338.031 ). At issue in this matter is KOSHA's own special duty clause, KRS 338.031(1)(b), which requires that "[e]ach employer ... [s]hall comply with occupational safety and health standards promulgated under this chapter." It is identical to OSHA's special duty clause, stated in 29 U.S.C. § 654(a)(2). As noted, the special duties, or standards, at issue in this matter are 803 KAR 2:417 § 3(1)(b) and 29 C.F.R. § 1926.754(e)(5)(i).

The only issues to be resolved in this appeal are: 1) whether the circuit court properly reclassified the citation 1, item 1 violation from "serious" to "other than serious"; and 2) whether the circuit court correctly determined that the Appellees' method of installing metal decking complied with the standard contained in 29 C.F.R. § 1926.754(e)(5)(i). Morel, Midwest, and East Iowa chose not to appeal the circuit court's decision, which affirmed that 1) their affirmative defense of employee misconduct is without merit; 2) Morel and Midwest are liable with East Iowa for East Iowa's violations under Kentucky's multi-employer doctrine; and 3) East Iowa, through its employees, did violate 803 KAR 2:417 § 3(1)(b), as stated in citation 1, item 1.3

1. RECLASSIFICATION OF CITATION 1, ITEM 1, FROM "SERIOUS" TO "OTHER THAN SERIOUS. "

Before we describe the facts leading up to this violation and address the propriety of the circuit court's decision to reclassify it, some context is necessary. This context includes a discussion of 1) what the Cabinet must prove to establish a KOSHA violation in general; 2) how a KOSHA violation is classified after it has been established by the Cabinet; and 3) how a penalty for a KOSHA violation is calculated, after it has been established and classified.

As to the first matter, to establish a prima facie case for either a serious or other than serious KOSHA violation under the special duty clause of KRS 338.031(1)(b), the Cabinet bears the burden...

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5 practice notes
  • Oregon Occupational Safety & Health Division v. Moore Excavation, Inc., 0800169SH; A149283.
    • United States
    • Court of Appeals of Oregon
    • 17 Julio 2013
    ...on reasonable predictability-most often modeled on the federal standard. See, e.g., Department of Labor v. Morel Construction Co., Inc., 359 S.W.3d 438, 448–49 (Ky.Ct.App.2011) (citing decisions under the federal OSHA and further elaborating that “[r]easonable predictability requires more t......
  • Sec'y of Labor v. United Parcel Serv., Inc., NO. 2015–CA–001376–MR
    • United States
    • Court of Appeals of Kentucky
    • 24 Febrero 2017
    ...v. Kentucky Unemployment Ins. Com'n , 85 S.W.3d 621, 624 (Ky. App. 2002) (footnote omitted).In Dep't of Labor v. Morel Const. Co. , 359 S.W.3d 438, 442–43 (Ky. App. 2011), this Court specifically addressed KOSHA actions:KOSHA is patterned after its federal counterpart, the Federal Occupatio......
  • Ky. Pers. Bd. v. Justice & Pub. Safety Cabinet, NO. 2017-CA-000880-MR
    • United States
    • Court of Appeals of Kentucky
    • 27 Marzo 2020
    ...to resolving disputes . . . ." Id. at 302 (quotation marks and citation omitted); see also Department of Labor v. Morel Const. Co., Inc., 359 S.W.3d 438, 442 (Ky. App. 2011). The Board does resolve certain types of employment disputes, such as the one now before the Court. See KRS 18A.075(3......
  • Bowlin Grp., LLC v. Sec'y Labor, No. 2013–CA–000432–MR.
    • United States
    • Court of Appeals of Kentucky
    • 11 Julio 2014
    ...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 t......
  • Request a trial to view additional results
5 cases
  • Oregon Occupational Safety & Health Division v. Moore Excavation, Inc., 0800169SH; A149283.
    • United States
    • Court of Appeals of Oregon
    • 17 Julio 2013
    ...on reasonable predictability-most often modeled on the federal standard. See, e.g., Department of Labor v. Morel Construction Co., Inc., 359 S.W.3d 438, 448–49 (Ky.Ct.App.2011) (citing decisions under the federal OSHA and further elaborating that “[r]easonable predictability requires more t......
  • Sec'y of Labor v. United Parcel Serv., Inc., NO. 2015–CA–001376–MR
    • United States
    • Court of Appeals of Kentucky
    • 24 Febrero 2017
    ...v. Kentucky Unemployment Ins. Com'n , 85 S.W.3d 621, 624 (Ky. App. 2002) (footnote omitted).In Dep't of Labor v. Morel Const. Co. , 359 S.W.3d 438, 442–43 (Ky. App. 2011), this Court specifically addressed KOSHA actions:KOSHA is patterned after its federal counterpart, the Federal Occupatio......
  • Ky. Pers. Bd. v. Justice & Pub. Safety Cabinet, NO. 2017-CA-000880-MR
    • United States
    • Court of Appeals of Kentucky
    • 27 Marzo 2020
    ...to resolving disputes . . . ." Id. at 302 (quotation marks and citation omitted); see also Department of Labor v. Morel Const. Co., Inc., 359 S.W.3d 438, 442 (Ky. App. 2011). The Board does resolve certain types of employment disputes, such as the one now before the Court. See KRS 18A.075(3......
  • Bowlin Grp., LLC v. Sec'y Labor, No. 2013–CA–000432–MR.
    • United States
    • Court of Appeals of Kentucky
    • 11 Julio 2014
    ...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 t......
  • Request a trial to view additional results

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