Administrative Law Judge (ALJ) denies imposition of safety rule violation where supervisor’s testimony establishes that the policy was subject to different interpretations and evidence showed the policy was not consistently enforced.
The claimant was working as an installation professional approximately 30 feet off the ground when he fell and suffered severe head injuries.
Respondents admitted liability and asserted a reduction of 50% based on violation of a safety rule. The claimant challenged the imposition of the 50% reduction.
At hearing, the employer’s divisional manager testified that the employer had a safety policy which required that any worker working above six feet from the ground must be tied off to a safety line at all times, without exception. However, the supervisor at the job site actually testified that he did not believe workers need to be tied off when they were more than 6 feet from the edge of a roof. Further, the job site supervisor testified that he saw the claimant and a co-worker walking along the roof with their safety harnesses unhooked before claimant’s fall and did not thing to stop him, or make claimant reattach his harness.
The ALJ found that that respondents failed to prove that claimant “willfully” violated the employer’s safety rule. The Panel of the Industrial Claim Appeals Office (Panel) affirmed, noting that the Workers’ Compensation Act (Act) provides for a 50% reduction in compensation where the injury results from the claimant’s “willful failure to obey an reasonable rule adopted by the employer for the safety of the employee” and that the claimant’s conduct is willful if he intentionally does the forbidden act and it is not necessary for respondents to prove that the claimant had the rule “in mind” and determined to break it.
The Panel also noted that the “most frequent ground for rejecting imposition of a penalty . . . for violation of a safety rule is the lack of enforcement of the rule or policy by an employer with knowledge of and acquiescence in its violation.” The Panel found that the ALJ’s determination was supported by the record, as there was ample evidence that the employer insufficiently enforced its own safety rule and acquiesced in employee noncompliance.
Further, the Panel noted that there was also substantial evidence in the records that the very rule upon which the employer was trying to rely was “given varying interpretations by supervisory staff” of the employer.
Amos Burd v. Builder Services Group, Inc. d/b/a Mato, W.C. No. 5-058-572 (July 9, 2019)
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