Injured worker not entitled to enhanced comp benefits

An employee who was seriously injured on a job site failed to show he was entitled to enhanced benefits under Kentucky statutes for safety violations.

In Cardwell v. McLean County Fiscal Court, a three-judge panel of the Kentucky Court of Appeals unanimously affirmed on Friday a Kentucky Workers Compensation Board holding that 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, which caused the pipes the machine was supporting to drop onto Mr. Cardwell, causing him to break both legs and sustain significant injuries to his hips and knees.

He sought enhanced workers compensation benefits under Kentucky statute’s general duty provision clause, which state 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 immobilizes 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, he found that it was inadvertent negligence at most and found no evidence of intent on the part of the employer. Mr. Cardwell appealed, and also argued that his employer violated two U.S. Occupational Safety and Health Administration regulations. The workers compensation board, however, affirmed the decision, also holding that the employer did not violate the general duty provision 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 provision, and though the appellate court held that inadvertent movement of the backhoe could present a hazard and that the lockout button was a feasible means to reduce the hazard, the court held that the evidence he presented was not “so overwhelming as to compel a finding in his favor.”

The attorneys in the case did not immediately respond to requests for comment.