Vittitow v. Central Maloney, Inc.

11 S.W.3d 12, 69 Ark. App. 176, 2000 Ark. App. LEXIS 82
CourtCourt of Appeals of Arkansas
DecidedFebruary 23, 2000
DocketCA 99-882
StatusPublished
Cited by3 cases

This text of 11 S.W.3d 12 (Vittitow v. Central Maloney, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vittitow v. Central Maloney, Inc., 11 S.W.3d 12, 69 Ark. App. 176, 2000 Ark. App. LEXIS 82 (Ark. Ct. App. 2000).

Opinion

Sam BIRD, Judge.

Appellant Carolyn Vittitow suffered an admittedly compensable back and shoulder injury on February 4, 1997, while she was working for appellee, Central Malo-ney. Vittitow’s injury occurred when she was emptying five-gallon buckets of water at Central Maloney’s Pine Bluff facility. At a hearing before an administrative law judge, Vittitow testified that Central Maloney’s roof had numerous leaks, and when it rained, water would leak into the building. Central Maloney positioned buckets under the leaks to catch the water, but the buckets would overflow, causing the walkways and aisles to be slippery. Vittitow slipped and fell while emptying the buckets.

Central Maloney stipulated that the injury was compensable, all appropriate disability and medical benefits were paid to Vittitow, and she returned to her regular work at Central Maloney. Relying on Ark. Code Ann. § 11-9-503 (Repl. 1993), Vittitow filed a claim contending that her injury was the result of Central Maloney’s violations of safety rules or regulations, that she was entitled to any and all benefits that may come to her as a result of the alleged safety violation, and that she was entitled to an attorney’s fee.

The law judge ruled that Vittitow had proven that a safety violation had occurred and, pursuant to Ark. Code Ann. § 11 — 9— 409 (Repl. 1993), referred Central Maloney to the Workers’ Health and Safety Division of the Workers’ Compensation Commission and awarded an attorney’s fee of $500. Central Maloney appealed to the full Commission, which vacated the law judge’s decision and dismissed the case.

The Commission held that under Act 796 of 1993, the Workers’ Health and Safety Division (hereinafter “Division”), and not an injured worker, is the proper party to investigate and institute legal action against an employer for an alleged safety violation.

Arkansas Code Annotated section 11-9-409 establishes the Division and promulgates its responsibilities, including coordinating information relating to job safety; organizing educational material as it pertains to job safety; promoting a means by which employers and employees are educated with regard to workplace safety; and maintaining a job safety information system, which shall include a comprehensive data base incorporating information relating to each reported injury. Subsection (c) states:

(c) Extra-Hazardous Employer Program. (1)(A) In cooperation with and with the assistance of the Department of Labor and the State Insurance Department, the division shall develop a program, including injury frequency, to identify extra-hazardous employers. The term “extra-hazardous employer” includes an employer whose injury frequencies substantially exceed those that may reasonably be expected in that employer’s business or industry, an employer whose experience modifier is identified by the commission as too high, and such other employers as may, following a public hearing, be identified as extra-hazardous.
(B) The division shall notify each identified extra-hazardous employer or the carrier for the employer that the employer has been identified as an extra-hazardous employer.
(2)(A) An employer who receives notification under subdivision (c)(1)(B) of this section must obtain a safety consultation within thirty (30) days from the Department of Labor, the employer’s insurance carrier, or another professional source approved by the division for that purpose.
(B) The safety consultant shall file a written report with the division and the employer setting out any hazardous conditions or practices identified by the safety consultation.
(3) The employer and the consultant shall formulate a specific accident prevention plan which addresses the hazards identified by the consultant. The employer shall comply with the accident prevention plan.
(4) The division may investigate accidents occurring at the work sites of an employer for whom a plan has been formulated under subdivision (c) (3) of this section, and the division may otherwise monitor the implementation of the accident prevention plan as it finds necessary.
(5) (A) Six (6) months after the formulation of an accident prevention plan prescribed by subdivision (c)(3) of this section, the division shall conduct a follow-up inspection of the employer’s premises. The division may require the participation of the safety consultant who performed the initial consultation and formulated the safety plan.
(B) If the division determines that the employer has complied with the terms of the accident prevention plan or has implemented other acceptable corrective measures, the division shall so certify.
(C) An employer who the division determines has failed or refused to implement the accident prevention plan or other suitable hazard abatement measures is subject to civil penalties as follows:
(i) The commission may assess a civil penalty against an employer who fails or refuses to implement the accident prevention plan or other suitable hazard abatement procedures in an amount up to one thousand dollars ($1,000) per day of violation payable to the Death and Permanent Total Disability Trust Fund;
(ii) Further, the commission may petition the Chancery Court of Pulaski County, or of the county where the business is located, for an order enjoining the employer from engaging in further employment until such time as the employer implements the prevention plan or abatement measure described above and/or makes payment of all civil penalties.
(6) If, at the time of the inspection required under subdivision (c)(5)(A) of this section, the employer continues to exceed the injury frequencies that may reasonably be expected in that employer’s business or industry, the division shall continue to monitor the safety conditions at the work site and may formulate additional safety plans reasonably calculated to abate hazards. The employer shall comply with such plans and may be subject to additional penalties for failure to implement the plan or plans.
(7) An employer may request a hearing before the Full Commission to contest findings made by the division under this section.
(8) The identification as an extra-hazardous employer under this section is not admissible in any judicial proceeding unless the commission has determined that the employer is not in compliance with this section and that determination has not been reversed or superseded at the time of the event giving rise to the judicial proceeding.

Prior to Act 796, Ark. Code Ann. § 11-9-503 (Repl. 1987) read:

Where established by clear and convincing evidence that an injury or death is caused in substantial part by the failure of an employer to comply with any Arkansas statute or official regulation pertaining to the health and safety of employees, compensation provided for by § 11-9-501 (a)-(d) shall be increased by twenty-five percent (25%).

In making its decision, the Commission noted, however, that Ark. Code Ann.

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Bluebook (online)
11 S.W.3d 12, 69 Ark. App. 176, 2000 Ark. App. LEXIS 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vittitow-v-central-maloney-inc-arkctapp-2000.