Safety and OSHA News

Should workers’ comp benefits be reduced because worker didn’t wear PPE?

The question the court had to decide in this case: Did the worker intentionally not wear his PPE? 

Shawn Smith was an employee of Judy Construction in Kentucky. On Dec. 2, 2015, Smith fell about 40 feet from a bridge and suffered significant injuries to his spleen, bowels, head, wrists, elbow, knees, back, ribs and pelvis.

Smith filed for workers’ comp and was awarded permanent partial disability benefits.

An administrative law judge refused to decrease Smith’s benefits as requested by his employer because he violated a safety rule.

Kentucky law says:

“If an accident is caused in any degree by the intentional failure of the employee to use any safety appliance furnished by the employer or to obey any lawful and reasonable order or administrative regulation of the commissioner or the employer for the safety of employees or the public, the compensation for which the employer would have been liable under this chapter shall decreased 15% in the amount of each payment.”

The ALJ found Smith didn’t intentionally fail to use his harness when he fell from the bridge. The Kentucky Workers’ Compensation Board upheld the ruling. Judy Construction appealed, and a state court recently handed down its decision.

In her opinion, the ALJ wrote:

“Smith had worn his harness all day and was wearing his hard hat. On this occasion, after taking his harness off to go to the bathroom near the end of the day, he simply without thinking went to help get the last form down after his supervisor said once that was done they would get ready to head home. In that moment while trying to hurry to go home, Smith inadvertently forgot to put back on his harness. The accident occurred not as a result of any willful misconduct of Smith but due to a simple act of negligence.”

The appeals court said the burden was on Judy Construction to prove that Smith intentionally failed to use the safety harness. The only evidence concerning Smith’s failure to use the harness was from Smith himself. The ALJ found his testimony credible. The court said there was no evidence provided by Judy Construction to show Smith’s failure to use his harness was intentional.

For that reason, the appeals court upheld the decision: Smith’s workers’ comp benefits wouldn’t be reduced by 15% for intentionally violating a safety rule.

(Judy Construction v. Shawn SmithKentucky Court of Appeals, No. 2017-CA-001462-WC, 7/27/18)

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Comments

  1. I have to agree with the Court on this one. Because there was a “Supervisor” on-site, it was the Supervisors responsibility to ensure that everyone under his or her direction was using all of the required PPE and following the Companies Policies and Procedures while working. OSHA has very clear definitions on what a Supervisor, Competent Person, and a Authorized Person responsibilities are.

    • OSHA also has a very clear explanation about employee responsibilities in The General Duty Clause.
      “Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.”
      It doesn’t say anything there that his “supervisor” has the responsibility to make sure he’s fully dressed after going to the bathroom. These are grown men, not children.

  2. I don’t agree with this because the statute language also says “…or to obey any lawful and reasonable order or administrative regulation of the commissioner or the employer for the safety of employees or the public, the compensation for which the employer would otherwise have been liable…”.
    At that point it doesn’t matter what his intentions were, if an OSHA Inspector had been at a site and they see people exposed to falls not wearing PFAS, the company is going to be cited. They do not ask if the person “forgot to put it back on”. This judge is reading the first part of the sentence and ignoring the rest of it.

  3. There is a difference in willful neglect and just negligence. Based on the data provided the court appears to have gotten it right. Shawn Smith was negligent and paid for it dearly, but Judy Construction stated that he normally wore his harness and lanyard, and in a hurry Smith inadvertently forgot to put back on his harness. The accident occurred not as a result of any willful misconduct of Smith but due to a simple act of negligence.”

  4. mamdouh bukhari says:

    most of the accident / incident the root cause is the MANAGEMENT, sample, 1-the training & training methods.
    2- follow up by the management. 3- meeting by the management with person who the accident happen with him and study the personal case, to safe his life. 4- the deduction from the amount is it written in the contract paper?
    5- first needs to increase the salary then make a vote for the deduction & take approval from the government.
    6- THINK, THE EMPLOYEES IS HUMEN NOT MACHINE.

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