An employee who was seriously injured on a job site failed to show up on enhanced benefits under Kentucky statutes for safety violations.
Cardwell v. McLean County Fiscal Court a three- judge panel of the Kentucky Court of Appeal unanimously affirmed on Friday a Kentucky Workers Compensation Board holding the employee was not entitled to enhanced workers compensation benefits.
Kevin Cardwell worked for the county road department as a laborer. On Oct. 27, 2015, he and his colleagues were installing a drainage pipe when a worker operating the backhoe shifted positions in the cab and accidentally bumped the controls. Cardwell, causing him to break both legs and sustain injuries to his hips and knees.
He sought enhanced workers compensation benefits under the Kentucky statute's general duty commission clause, which states that an accident caused "in any degree by the intentional failure of the employer to comply with any specific statute ”would increase the compensation for which the employer is liable by 30%.
Mr. Cardwell argued that he was injured due to the employee's failure to use a lockout button located inside the cab of the backhoe, and said if he had pushed this button, which immobilized the backhoe that his injury could have been prevented. He also claimed his employer failed to hold safety meetings
An administrative law judge denied his bid for enhanced benefits, holding that though Mr. Cardwell was injured in a terrible accident, found that it was inadvertent negligence at most and found no evidence of intent on the part of the employer. Mr. Cardwell appealed, and thus provided his employer violated two U.S. Occupational Safety and Health Administration regulations. The workers compensation board, however, with the decision, also holding that the employer did not violate the general duty commission of the statutes.
Mr. Cardwell appealed to the Kentucky Court of Appeals, which also affirmed the decision. The appellate court agreed with the board that Mr. Cardwell's OSHA arguments failed because he had not raised those before the administrative law judge, and therefore they were not preserved for the appellate court's review.
Mr. Cardwell argued that the board erred in holding there was no violation of the general duty commission, and though the appellate court held that inadvertent movement of the backho could present a hazard and that the lockout button was a feasible means to reduce the hazard, the court
The attorneys in the case did not immediately respond to requests for comment.