Safety Violation Upheld By Kentucky Court Where Injured Electrical Worker Not Wearing PPE And Tensioner Truck Not Grounded
The reconductoring process involves stringing new power lines alongside existing energized lines to avoid a power disruption. During this process at a site in Meade County, Kentucky in 2009, while a worker was turning the winch on a tensioner mounted in a truck to increase the tension in a power line, the worker, who was not wearing any insulating personal protective equipment (PPE), touched the power line and suffered electrical burns so severe that his right arm required amputation. Kentucky OSHA investigated the incident and issued a citation to the employer for a serious safety violation, which the employer appealed to Kentucky OSHA’s review commission, then to the circuit court, and then to the state’s Court of Appeals, which affirmed the citation on Friday.
The court had to consider the effect of 29 C.F.R. § 1926.955(c)(3), which provides, “Where there is a possibility of the conductor accidentally contacting an energized circuit or receiving a dangerous induced voltage buildup, to further protect the employee from the hazards of the conductor, the conductor being installed or removed shall be grounded or provisions made to insulate or isolate the employee.” The employer claimed the citations were based on an erroneous interpretation that the regulation suggested grounding (i.e., diverting the electrical current to the earth by means of a wire or other conductor) as the preferred method, and that in fact the regulation permitted an employer to either ground the conductor or insulate its employees or isolate its employees from the hazard. The court agreed that the regulation does not indicate a preference for grounding, but explained that regardless of which method the regulation prefers, the Kentucky review commission properly recognized that the regulation could be satisfied so long as the employer either grounds the equipment, insulates employees, or isolates them from the hazard.
The court then found substantial evidence in the record to support the commission’s findings that the employer violated this safety standard. Specifically, even though the employer had extensive and “commendable” safety and training policies, it lacked a well-established internal policy for grounding tensioner trucks and failed to have a specific policy requiring employees to wear PPE when approaching a tensioner truck, and the evidence supported the finding that the tensioner truck was not grounded during the incident. Regarding insulation, the court found substantial evidence indicating that there was no work rule requiring employees to wear PPE while working on the ground or while working near the tensioner. Having found no such work rule, the court agreed with the review commission in rejecting the employer’s employee misconduct affirmative defense, which contended that the violation of safety rules was a product of unforeseeable employee misconduct.
