No. 04-82165. Bogard Trucking and Excavating, Inc. v. Choate.

Case Date:December 28, 2007
Kentucky Workers Compensation 2007. No. 04-82165. Bogard Trucking and Excavating, Inc. v. Choate BOGARD TRUCKING and EXCAVATING, INC. PETITIONER VS. SHARON CHOATE, ADMINISTRATRIX OF THE ESTATE OF GLEN WAYNE' WILKINS, DECEASED AND AS LEGAL CUSTODIAN AND NEXT FRIEND OF SAVANAH GLEN WILKINS; JENNIFER WILKINS, AS MOTHER AND NEXT FRIEND OF ANNA MAE WILKINS; AND MELANIE RUTH WILKINS, WIDOW OF GLEN WAYNE WILKINS RESPONDENTSOPINION ENTERED: December 28, 2007CLAIM NO. 04-82165APPEAL FROM HON. JAMES KERR, ADMINISTRATIVE LAW JUDGEOPINION AFFIRMING * * * * * * BEFORE: GARDNER, Chairman, COWDEN and STIVERS, Members.STIVERS, Member. Bogard Trucking and Excavating, Inc. ("Bogard") appeals from an opinion and award by Hon. James Kerr, Administrative Law Judge ("ALJ") awarding benefits to Melanie Ruth Wilkins, as the widow of Glen Wayne Wilkins, Sharon Choate, as legal custodian and next friend of Savanah Glen Wilkins, and Jennifer Wilkins, as mother and next friend of Anna Mae Wilkins. Savanah Glen Wilkins and Anna Mae Wilkins are the children of the deceased, Glen Wayne Wilkins, (collectively "Wilkins"). Bogard also appeals the ALJ's enhancement of the award to Melanie Ruth Wilkins, Sharon Choate, as Administratrix of the Estate of Glen Wayne Wilkins and as legal custodian and next friend of Savanah Glen Wilkins and Jennifer Wilkins, as mother and next friend of Anna Mae Wilkins, by 30% pursuant to KRS 342.165(1) due to Bogard's intentional violation of a safety regulation. Bogard also appeals the order of the ALJ overruling its petition for reconsideration. On appeal, Bogard maintains: 1) the ALJ erred in the total amount he awarded to Melanie Wilkins and the dependent children pursuant to KRS 342.750; 2) Melanie Wilkins voluntarily abandoned her husband and therefore, pursuant to KRS 342.075, she was not entitled to the benefits awarded to her by the ALJ as the surviving spouse of Glen Wayne Wilkins and 3) the ALJ erred in finding Bogard intentionally failed to comply with safety statutes and regulations therefore enhancing the award by 30%. Glen Wayne Wilkins died on July 12, 2004 in the course of his employment with Bogard. The claim was filed by Sharon Choate, the mother of the deceased as Administratrix of the Estate of Glen Wayne Wilkins and Legal Custodian and Next Friend of Savanah Glen Wilkins, child of the decedent, Jennifer Wilkins, as Mother and Next Friend of Anna Mae Wilkins, child of the decedent, and Melanie Ruth Wilkins, Widow of the decedent. There is no dispute Savanah Wilkins and Anna Mae Wilkins are the children of Glen Wayne Wilkins, the deceased worker. At the time of his death, Glen Wayne Wilkins, was married to Melanie Ruth Wilkins. Glen Wayne Wilkins died as a result of a work-related injury on July 12, 2004. Further, there is no dispute as to the ALJ's determination that Glen Wayne Wilkins' average weekly wage was $527.80. The dispute turns on whether Melanie Wilkins had in fact voluntarily abandoned her husband and thus was not entitled to benefits and whether the ALJ erred in assessing a 30% penalty for a safety violation. There is also a dispute as to the amount of combined benefits the widow and the children of Glen Wayne Wilkins are entitled. Choate, as Administrator, took the deposition of Daniel Penney, who was working with Glen Wayne Wilkins on the date of the accident. Penney testified he did not know Glen Wayne Wilkins before July 12, 2004. He had seen Wilkins on the job but did not really know him. Penney's job was hauling gravel back and forth to jobs. He also drove a semi and all the equipment back and forth to jobs. Penney had been off work approximately two or three months before this accident. He had worked for Bogard approximately two or three months before being laid off for this two or three month period. July 12, 2004 was his first day back on the job. Penney testified he was working that day because either he went into "that 22 foot ditch or go home." He had called Bogard the night before and asked if there was any work and Bogard mentioned the ditch. Penney showed up for work the next day at 7:00 a.m. The trench was approximately 22 feet deep but he was unsure as to its width. Penney thinks it was at least 3 to 4 feet wide. He said you could barely turn your shoulders around in the trench. There was a trench box in the trench. The trench was approximately 58 feet long and ran north to south. The trench boxes were stacked on top of each other which meant the boxes were approximately 16 feet tall and 15 feet long. They had a ladder which they used to get in the trench and it was 24 feet. He remembers that because there were only two rungs left to push above the ground. He had not worked below ground before and he had no previous safety meetings or safety instructions on that date concerning his work in a trench. He said there was a safety meeting after Wilkins was killed. Penney testified they were in mud up to their waist all day long. Once they were in the trench box other employees starting handing the sewer pipe down into the trench so that it could be laid in the trench. They laid the pipe inside the trench box. Penney believes the pipe they laid was approximately the same length as the trench box. That day, he believes the trench box was moved approximately 4 to 5 times in the course of laying the pipe. As they were moving the trench box and going along the trench line Wilkins kept telling Penney there was something wrong because the sides kept caving in on them. From Penney's testimony it appears the dirt from the walls kept falling and hitting the side of the trench box. It also appears that as they would lay the pipe the trench box would then be moved with Penney and Wilkins in the trench box. Then another pipe would be handed down to them inside the trench box so that they could lay the new section of pipe. After they had laid the pipe and moved the trench box the other employees were pushing gravel in on the area where they had already laid the pipe. Penney testified they were out of the trench box at times in order to hook up pipes that went straight up and down, to get their tools they had left behind and to move the ladder. Bruce Parker was the foreman running the job for Bogard. Parker was aware they had been out of the trench box at times while they were in the trench because he was on site and would have had to have seen them. Penney testified Parker was above them looking down on them. When they reached the area where the 10 x 10 manhole was to be placed at the end of the trench he and Wilkins then had to set the manhole. They had worked about 10 hours when they got to the area where the manhole was to be put in. Both men were tired. Bruce Parker did not want to quit. He wanted Penney and Wilkins to keep on going. Penney testified as follows regarding putting in the manhole:
Well, it was either take another hour, 30 minutes, whatever it took to go across the other side of the field and get that box to set in that manhole so we could set the manhole itself, or just do it without it. They opted to do without it.
He then identified they as Bruce and Glen. Penney said Glen was not happy about setting in the manhole without the trench box. He knows of Glen's unhappiness because Glen told him he was not happy that this was going to occur. He testified that he and Glen exited the trench box in order to "take grade" which means to determine the level of the ground at the bottom of the trench. They needed to take the level of the ground because they were going to have to dig down some in order to set the manhole. Penney said as he was leaning down he felt dirt hit the back of his legs and by the time he rose up and turned around Glen was gone. What had occurred was one wall of the trench had caved in on Wilkins burying him alive. Penney testified that a box was specifically made to fit the area around the manhole. It was not in use and was available for use. It was his testimony that Glen Wilkins was specifically told by Bruce Parker to check the grade which required him to leave the trench box. Penney testified he left the trench box with Glen Wilkins. Penney testified Wilkins had noticed that when they first started that morning the sand in the wall was probably a foot or two in height but by the time they got to the other manhole at the south end the sand was approximately 8 feet tall. Penney testified as follows regarding what needed to be done when they take the grade:
A. We had a shovel that was turned upside down with two marks on it.
Q. Okay.
A. And what it is, it's a laser that runs through the pipe, and you set a target that comes through the pipe, a target come - -- a laser comes through the pipe -
Q. Right.
A. -- and is marked, and you go by that mark.
Q. Could he have done that from inside the trench box, where the trench box was located?
A. You can't - -no. You -- I mean, if the other trench box -- the manhole trench box was set there, yes.
Q. Right. But he could not have done it from the trench box you - all were in?
A. No.
Q. And it's your testimony Bruce Parker told him to take the grade?
A. Yep.
Penney testified they were not able to move the trench box by hand. They would take a chain and hook it to a track hoe and pull it along the trench line with the workers in it. He also testified no one pulled the trench box any closer to the manhole for Glen Wilkins to take the grade. There was a trench box which could fit in the area around the manhole...

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