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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  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.

      • OSHA’s primary reason for being is to ensure all workplaces are free of recognized hazards, and that obligation belongs to the employer, it is their job to provide a safe work environment. Proper safety training and holding employees accountable for their safety performance belongs to the employer. It is the employee’s job to follow company guidelines.

        • No Sir, respectfully disagree. It’s the employee’s responsibility to follow all the standards and procedures, whether they be company, client, Association, State, or Federal. Again, the General Duty clause has 2 sections which very clearly spells out both the Employers and the Employees responsibilities.

  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.

  5. Just stating my mind says:

    He also had never been in trouble over not wearing it before workers even stated that he always wore his Ppe and it’s stated that he had worn it all day that this wasn’t a ever day problem for smith and that to me sounds like he was rushed to get the job done so they could go home I’m sure they worked a lot of hrs and worked hard daily being tired and or worn out something like that can slip the mind when your pushed to get done and all sounds like to me he was just a hard working man trying to make a dollar and that the company should be happy that the man is still alive and not be trying to take what lil money he gets for putting his life at risk everyday and consider that he could of maybe took em for a lot more than what they have been ordered to pay this is quite ridiculous to me that they would even appeal something like this knowing he put his life on the line for them and yet they wanna make him suffer more than what he has or is suffering from now… I think he could probably sue over this even being put online really….. I know I would

  6. Real talk says:

    It’s wasn’t negligence at all sounds to me like he was being rushed and it’s negligence of the supervisor to push or rush someone that works such a high risk job that has to be on there toes and try to be safe and wanna come home daily to there family and loved ones this case is really not a case and a s****y way to do a person that hadn’t ever been in trouble over safety he should be rich and he should sue some more

  7. safetychick says:

    First – prayers for the injured worker, and his family going forward! Second – it’s abhorrent to think the company would even consider reducing the WC claim by 15% – but, that’s the legal system for ya! I’ve read the associated documents included in this post, and have nothing but respect for anyone who puts on PFAS at any time as a course of work required PPE. Forgetting to put PPE back on when rushing to get a task done is plausible, and happens often, even to safety professionals like me! Of note: the legal document attached in the email specifically states at the top “Not for Publication” – yet it is linked here, which I found disconcerting. Kudos to the ALJ for not taking that 15% away from the injured worker – he obviously needs every part of it…

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