Hornback v. Hardin Memorial Hospital, 2012 -SC-000195-WC:  In determining whether an employer violated the “general duties” provision of KRS 338.031, the four part test of Lexington-Fayette Urban County Government v. Offutt, 11 S.W.3d 598 (Ky. App. 200) must be applied.

In Hornback, a decision to be published, the claimant, while working as custodian for the employer hospital, became trapped in a stalled elevator. The employer’s safety staff failed in their attempt to rescue the claimant and, as a result, she fell several stories down the elevator shaft causing serious injuries.  She filed for workers’ compensation benefits and requested enhancement of benefits by 30% per KRS 342.165(1) (safety violation enhancement provision) and KRS 338.031 (general duties provision of Kentucky’s Occupational Safety and Health Act).

The ALJ, applying Offutt, found (1) the condition or activity in the workplace presented a hazard to employees; (2) the employer or employer’s industry recognized the hazard; (3) the hazard was likely to cause death or serious physical harm and (4) feasible means existed to eliminate or materially reduce the hazard.

The Workers’ Compensation Board affirmed the ALJ, but the Court of Appeals reversed, holding that the record did not support the conclusion that the employer violated the Offutt test, specifically, the first two factors.  The Court of Appeals found that the “condition or activity” as contemplated by Offutt does not include the one-time malfunctioning of an elevator, and becoming stuck in an elevator is not a hazard associated with employment in a hospital.

The Supreme Court reversed the Court of Appeals and conducted its own analysis per the Offutt criteria finding that all four factors had been met.

COMMENT:  The Court of Appeals was probably right.  A one-time malfunctioning of an elevator and a good Samaritan, although failed, attempt at a rescue by fellow employees is not “a condition or activity” as contemplated by Offutt, and becoming stuck in an elevator is probably not a hazard associated with employment in a hospital. The Supreme Court’s determination runs the risk of converting all negligent behavior to intentional behavior subject to the punitive goals of KRS 342.165(1).

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