RENDERED: MARCH 5, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-1377-WC

D.W. WILBURN, INC. APPELLANT

PETITION FOR REVIEW OF A DECISION

v. OF THE WORKERS’ COMPENSATION BOARD

ACTION NO. WC-17-01063

WADE MASSENGILL;

DAVIS BROTHERS ROOFING;

UNINSURED EMPLOYERS’ FUND;

and HON. MONICA RICE-SMITH,

ADMINISTRATIVE LAW JUDGE APPELLEES

AND NO. 2020-CA-1499-WX

WADE MASSENGILL CROSS-APPELLANT

CROSS-PETITION FOR REVIEW OF A DECISION

v. OF THE WORKERS’ COMPENSATION BOARD

ACTION NO. WC-17-01063
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D.W. WILBURN, INC.;

DAVIS BROTHERS ROOFING;

UNINSURED EMPLOYERS’ FUND;

and HON. MONICA RICE-SMITH,

ADMINISTRATIVE LAW JUDGE CROSS-APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: DIXON, KRAMER, AND LAMBERT, JUDGES.

KRAMER, JUDGE: An administrative law judge (“ALJ”) entered an order 

denying Wade Massengill’s claims for an enhancement of his workers’ 

compensation benefits pursuant to KRS1 342.165 against both his employer –

Davis Brothers Roofing (“Davis Brothers”) – and his alleged “up-the-ladder” 

employer, D.W. Wilburn, Inc. (“Wilburn”). Subsequently, the Workers’ 

Compensation Board (“Board”) vacated and remanded after determining the ALJ’s 

factfinding and legal analysis insufficiently addressed Massengill’s claims.

In Appeal No. 2020-CA-1377-WC, Wilburn contends the Board’s 

decision was erroneous for two reasons. First, Wilburn contends the Board 

directed the ALJ to resolve an issue Massengill never raised (i.e., whether a KRS 

342.165 enhancement to Massengill’s award could have been predicated upon a 

 

1 Kentucky Revised Statute.
-3-

violation, by Davis Brothers and Wilburn, of the “general duty” standard of 

workplace safety set forth in KRS 338.031(1)(a)). Second, Wilburn contends that 

the ALJ’s order was adequate and that no additional factfinding or legal analysis is

necessary. In addition, Wilburn asks this Court to “reinstate” the ALJ’s decision 

and determine that it was supported by substantial evidence. Upon review, we 

affirm the Board’s decision to vacate and remand. 

In Appeal No. 2020-CA-1499-WX, Massengill, like Wilburn, asks 

this Court to review the merits of the ALJ’s decision – specifically, to determine

whether the evidence compelled a judgment of enhanced benefits in his favor.

Upon review, we affirm.

Furthermore, Davis Brothers – in its dual roles as appellee and crossappellee – also asserts the Board erred and for the reasons asserted by Wilburn.

With that said, before addressing the substance of this matter, there 

are several procedural issues that must be discussed first – beginning with Davis 

Brothers’ fundamental misunderstanding of its roles as appellee and crossappellee. If Davis Brothers wished to contest, modify, or otherwise enlarge its 

rights affected by the Board’s decision, it was required to file a valid cross-appeal.

See, e.g., Farmers Nat’l Bank of Danville v. Moore, 282 Ky. 502, 139 S.W.2d 420, 

422 (1940); Lainhart v. Rural Doxol Gas Co., 376 S.W.2d 681, 682 (Ky. 1964); 
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CR2 76.25(9). But, it did not. And in the absence of a cross-appeal, an appellee is 

only entitled to argue that the lower tribunal reached the correct result for the 

reasons expressed in its judgment or for any other reasons that were appropriately 

brought to the lower tribunal’s attention. Carrico v. City of Owensboro, 511 

S.W.2d 677, 679 (Ky. 1974). Consequently, any contentions of error from Davis 

Brothers are unauthorized and will be disregarded.

Equally concerning are Wilburn’s and Massengill’s requests for this 

Court to review the merits of the ALJ’s order (i.e., whether substantial evidence 

either supported the ALJ’s order or compelled a contrary result). We have no 

authority to do so under the circumstances. Our appellate authority is limited to 

reviewing decisions of the Board. See KRS 342.290. Here, the Board vacated and 

remanded—meaning that it rendered no decision regarding the merits of the ALJ’s 

order. See Hampton v. Flav-O-Rich Dairies, 489 S.W.3d 230, 234 (Ky. 2016) 

(quoting Vacate, BLACK’S LAW DICTIONARY (10th ed. 2014)) (“[W]hen the Board 

vacates an ALJ’s opinion, it ‘nullif[ies] or cancel[s]; make[s] void; invalidate[s]’

that opinion.”). In the absence of any such decision, it is not our prerogative to 

review the merits. Rather, as our Supreme Court explained,

In the event the Court of Appeals agrees with the Board 

that the ALJ’s opinion is deficient, it is free to affirm the 

Board’s opinion. However, in the event that the Court of 

Appeals disagrees with the Board regarding the 

 

2 Kentucky Rule of Civil Procedure.
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sufficiency of the ALJ’s opinion, it must remand to the 

Board for consideration of the substantive issues raised 

by [the parties] before the Board.

Id. at 235.

Thus, we cannot entertain Wilburn’s or Massengill’s requests for a 

determination of whether substantial evidence supported the ALJ’s order. 

Consequently, because the entirety of Massengill’s cross-petition asks this Court to 

review the evidence supporting the ALJ’s order – which we lack the statutory 

authority to do in the absence of prior review from the Board – we must affirm in 

that respect.

Finally, we note that in violation of CR 76.25(4)(a), neither Wilburn 

nor Massengill specifically designated the Board as an appellee. However, so long 

as the Board has been served – which occurred here – this is not a jurisdictional 

error. See Belsito v. U-Haul Co. of Kentucky, 313 S.W.3d 549 (Ky. 2010). 

With those preliminary matters now resolved, we proceed to the 

substance of this matter. The Board’s opinion accurately sets forth the relevant 

facts and procedural history, which we incorporate in relevant part as follows:

Massengill filed a Form 101 alleging he injured multiple 

body parts on June 15, 2015, when the boom lift he was 

working on tipped over. He and his co-worker, Brandon 

Cloud (“Cloud”), fell approximately forty feet. The fall 

caused fatal injuries to Cloud and serious injuries to 

Massengill. Massengill identified Davis Brothers and

Wilburn as Defendants. He noted Wilburn was the 

general contractor who had employed Davis Brothers. 
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Massengill indicated Davis Brothers is located in 

Tennessee, while Wilburn is located in Kentucky. The 

accident occurred in Frankfort, Kentucky. The 

Uninsured Employers’ Fund (“UEF”) was joined as a 

party since Davis Brothers did not have a Kentucky 

workers’ compensation policy in effect on June 15, 2015.

. . . .

Since the only issue on appeal [before the Board] regards 

the application of KRS 342.165(1), we will not 

summarize the medical evidence. We note Massengill 

timely filed a Form SVC alleging the following safety 

rules, regulations or statutes had been violated by the 

employer: “KRS 338.031(1)(a); 29 CFR[3]

1926.451(c)(2)(iv) employer did not utilize proper 

equipment; 29 CFR 1926.602(d).” Massengill alleged 

the “employer did not provide a safe work environment 

as they did not properly train their employees or utilize 

the appropriate equipment with the boom lift occupied by 

Plaintiff causing it to tip over and causing the Plaintiff 

serious injuries.”

Massengill filed the report, citations, and notification of 

penalty issued by the Kentucky Labor Cabinet, 

Occupational Safety and Health Program (“KOSH”). 

The report identified the establishment as Davis Brothers. 

It noted Wilburn was the general contractor for the 

Boone National Guard Center Construction Project, and 

it had hired Davis Brothers to perform roofing and siding 

work. On the day of the accident, Davis Brothers 

employees were using a rough terrain forklift (“RT 

forklift”) with a platform attached to the forks to install 

exterior insulation on a wall. The report indicates 

Wilburn rented the RT forklift and owned the platform. 

Donald Carr (“Carr”), foreman for Davis Brothers, 

operated the RT forklift, while Massengill and Cloud 

 

3 Code of Federal Regulations.
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were on the platform when the accident occurred. The 

report indicated the following events occurred verbatim:

. . . the employees on the platform motioned 

to the operator that they were ready to come 

down. The operator, [Carr], then got into 

the cab, turned on the machine, and tilted the 

machine’s frame (body) to the left, away 

from the work area. When this tilt occurred 

it also tilted the 40 foot boom and 4x16 ft. 

platform to the left away from the work 

area. . . . When this frame tilt occurred the 

operator stated that he lost handle of the 

lever that conducted the tilt and the frame 

continued to tilt to the left away from the 

building tipping the machine completely 

over. This machine has this frame tilt 

feature for rough terrain and for unlevel 

surfaces. When the frame was tilted to the 

left, while on flat level ground, the weight of 

the 40 ft. extended boom and the basket 

started to turn the machine completely over 

onto its left side slamming onto the concrete. 

This exposed two employees to a fall of 40+ 

feet to the concrete ground below killing one 

employee and hospitalizing the other.

The report noted the RT forklift operator’s manual, 

which was located inside the cab of the forklift, refers to 

AMSE/ANSI B56.6 1992 safety standards when lifting 

personnel. Those standards require platforms to be no 

wider than the overall width of the truck, in this instance 

4x10 feet. The platform involved in the accident, owned 

and supplied by Wilburn, was 4x16 feet. The report 

noted Terry Gregory (“Gregory”), Wilburn’s site 

superintendent, stated he received verbal assurance from 

Carr that he could operate the RT forklift. Davis 

Brothers could not provide the RT forklift training 

certification for Carr. Davis Brothers forwarded a copy 
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of a training card dated June 19, 2015, after the accident. 

The report noted the operator’s manual stated as follows:

Excessive tilting of the fork carriage or other 

attachments with an elevated load can cause 

instability. . . . Only trained and authorized 

persons should operate and service the 

machine . . . . Always level the machine 

before raising the boom. Never tilt frame 

with the boom raised. Machine may tip and 

cause serious personal injury and death . . . . 

LULL strongly recommends that you DO 

NOT use the rough terrain forklift as a 

personnel lift. It is designed for material 

handling only. If personnel MUST be lifted, 

lift only in accordance with ASME/ANSI 

B56.6 1992, Para. 5.15 and with properly 

designed work platform.

The report recommended issuing citations to both Davis 

Brothers and Wilburn. It also recommended issuing a 

citation to Wilburn as the controlling and creating 

employer. The report noted Wilburn was the general 

contractor that had sub-contracted the work to Davis 

Brothers. It noted Wilburn checked the quality of the 

work throughout the project, controlled the work being 

done, and conducted the clean up after the accident. 

Wilburn also owned and supplied the platform and rented 

the RT forklift involved in the accident.

A citation was issued, containing three items of violation. 

The first item stated the employer violated KRS 

338.031(1)(a), a serious violation, and proposed a 

$3,500.00 penalty. The citation stated as follows:

KRS 338.031(1)(a): the employer did not 

furnish to each of his employees

employment and a place of employment 

which was free from recognized hazards that 
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could cause or are likely to cause death or 

serious physical harm.

a. On 6/15/15 the exposing employer, 

[Davis Brothers], did not furnish to each of 

his employees, employment free from 

recognized hazards when a 4x16 foot 

(Arrow brand) man basket attachment was 

used on a rough terrain forklift to lift 

personnel up approximately forty (40) ft. 

This resulted in the machine tipping over 

killing one (1) employee and seriously 

injuring another employee.

* A feasible means of abatement is, but is 

not limited to, using a 48”x116” man basket 

attachment which complies with 

AMSE/ANSI B56.6 1992 8.25.1(b).

The second item stated the employer violated 29 CFR 

1926.451(c)(2)(iv), a serious violation, and proposed a 

$3,500.00 penalty. The citation stated as follows:

29 CFR 1926,451(c)(2)(iv): Front-end 

loaders and similar pieces of equipment 

were used to support scaffold platforms 

without being specifically designed by the 

manufacturer for such use.

a. On 6/15/15 as the exposing employer, 

[Davis Brothers], used a rough terrain 

forklift to support a man platform when the 

machine was not specifically designed to do 

so.

The third item stated the employer violated 29 CFR 

1926.602(d), a serious violation, and proposed a 

$3,500.00 penalty. The citation stated as follows:
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29 CFR 1926.602(d): The employer did not 

certify that each operator had been trained 

and evaluated as required by 1910.178(1) of 

this chapter:

a. On 6/15/15 as the exposing employer, 

[Davis Brothers] did not certify that the 

operator of the rough terrain forklift had 

been trained and evaluated as required by 29 

CFR 1910.178(1).

Wilburn filed the January 3, 2018 KOSH Review 

Commission “Decision and Order of this Review 

Commission.” According to the decision, Wilburn was 

cited for a serious violation of 29 CFR 1926.602(d) since 

it, as the controlling employer, did not assure that Davis 

Brothers had certified the operator of the RT forklift had 

been trained and evaluated as required by 29 CFR 

1910.178(1). Ultimately, the Review Commission 

downgraded the violation and declined to assess any 

penalty for that infraction. We note the above-referenced 

citation to Wilburn by KOSH was not filed as evidence.

Wilburn also filed the “in house” safety report by Ron 

Logsdon (“Logsdon”) of JV Resources Safety 

Management. The report notes an inspection occurred on 

June 15, 2015. It identified the following rule violations 

by Wilburn: Documented training had not been 

performed; First Aid cardholder was not on site; the 

weekly hazard assessment checklist was not on site; and 

a safety meeting was not held or documented.

Massengill testified by deposition on September 5, 2017 

and at the hearing held on November 26, 2018. 

Massengill, a resident of Kingsport, Tennessee, began 

working for Davis Brothers in 2004. He testified 

Wilburn hired Davis Brothers to install siding on the wall 

of a building at the National Guard Armory in Frankfort, 

Kentucky.
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On June 15, 2015, Massengill and Cloud were working 

on a man platform attached to a RT forklift that raised 

them up to hang insulation on a tall exterior wall. They 

were properly harnessed, and worked at the height of 

approximately forty feet. They were also wearing PPE 

and hardhats. Carr, a Davis Brothers Employee and 

Massengill’s supervisor, operated the RT forklift. 

Massengill and Cloud signaled to Carr that they were 

ready to come down. Carr tilted the RT forklift away 

from the building to avoid scratching it “and then it just 

fell over.” Massengill estimated he and Cloud were 

approximately 30 or 40 feet in the air when the RT 

forklift tipped over. Cloud suffered fatal injuries while 

Massengill was airlifted to UK Medical Center with 

serious injuries. Massengill remained off work until 

January 2016, when he returned to light duty work for 

Davis Brothers. Massengill’s treating physician released 

him to regular duty work without restriction in April or 

May 2016. Massengill continues to work for Davis 

Brothers as a roofer.

Massengill testified the equipment was already on site 

when he arrived on June 15, 2015, and the platform was 

already attached to the RT forklift. Massengill was not 

part of the decision making regarding equipment setup, 

and did not know who attached the platform to the RT 

forklift. Massengill testified Wilburn supplied all of the 

equipment, including the RT forklift and platform. Other 

lifts were on site on the day of the accident, but were 

already in use. Massengill did not know whether Carr 

received training from Wilburn. He was likewise 

unaware of Carr’s previous training, but had observed 

him operating forklifts in the past. Massengill does not 

believe Carr intentionally tried to harm him or cause the 

RT forklift to tip over. Massengill believes the platform 

was too big for the RT forklift, causing it to lose balance 

as Carr tilted it away from the building.

Gregory testified by deposition on June 4, 2018. Gregory 

has worked for Wilburn for thirty-two years, and was the 
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project superintendent at all relevant times. As project 

superintendent, he coordinates and schedules work and is 

responsible for “just general overview of safety and 

project flow.” Gregory testified he is generally 

responsible for safety, but “not in specifics.” Wilburn is 

a general contractor that constructs buildings and 

associated infrastructure.

Wilburn was hired to construct a helicopter maintenance 

facility for the Kentucky Army National Guard in 

Frankfort, Kentucky in 2013 or 2014. Wilburn had 

previously hired a contractor to install metal wall panel 

systems. However, that contractor abandoned the job 

prior to its completion. Wilburn then hired Davis 

Brothers to complete the job. Wilburn agreed to supply 

the equipment and Davis Brothers agreed to supply the 

labor to complete the job. Gregory testified Wilburn 

supplied the RT forklift, man platform, a man platform 

lift, an aerial platform lift, and an all-terrain platform lift 

to Davis Brothers. Gregory was on site, but did not 

witness the accident.

Gregory instructed subcontractors on what jobs were 

required, and provided a timeframe for completion. He 

did not instruct subcontractors on how to perform their 

specific job duties. Gregory testified Davis Brothers told 

him what equipment it needed. Gregory did not direct 

Davis Brothers to use specific equipment. Gregory 

visited the site throughout the day to ensure the work was 

progressing.

In the first couple of weeks on the job, Davis Brothers 

used a snorkel lift or an aerial platform to perform work 

at heights. Davis Brothers then requested the RT forklift 

and the man platform involved in the accident, which 

Wilburn rented from Equipment Sales and Rental. 

Wilburn also provided the man platform, which it owned. 

A Wilburn employee selected the man platform from its 

warehouse, and delivered it to the jobsite for Davis 
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Brothers to use. Carr advised he was certified to operate 

the RT forklift, and Gregory did not provide any training.

Carr and Gregory discussed the use of the man platform 

on the RT forklift prior to the accident. They discussed 

who would operate the lift, and to ensure appropriate 

usage of tie-offs. Gregory stated he did not direct or 

instruct Davis Brothers how or when to use the man 

platform. Gregory stated he gave only one instruction as 

it relates to the man platform. He stated, “one 

requirement that I know of on that man basket is that the 

employees have to be tied off in it and it has to be tied to 

the mast (of the forklift), and they were adhering to that.” 

Gregory stated no one from Davis Brothers raised any 

concern over the platform, and no one refused to use it.

A “notice” sticker from the RT forklift was attached as 

an exhibit. It read in part, “This machine is not equipped 

to lift personnel. Never use this machine as a work 

platform.” The “Operators and Safety manual” for the 

RT forklift was also attached as an exhibit. Gregory 

testified that although he is familiar with the RT forklift, 

he is not familiar with the manual. Gregory stated he is 

aware that the RT forklift needs to be operated by a 

trained and authorized person. Gregory confirmed he 

received a verbal assurance from Carr that he was 

certified to operate the forklift, but “I didn’t follow up 

and ask him for a training certificate, no.”

Gregory testified he was not aware of the regulation 

requiring the man platform to be no wider than the 

overall width of the truck, in this instance 4x10. He 

testified as follows regarding the safety of the man 

platform:

Q: But you would agree that based on what 

the operator’s manual says, it wasn’t 

appropriate for this machine.
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A: According to this operator’s manual and, 

I guess, OSHA’s statement, no, it wasn’t 

appropriate.

Q: And you all made no effort prior to 

bringing that basket to the job site to 

determine whether it was appropriate or not.

A: No, we did not compare – I did not 

compare the basket to the machine. I 

assume that that basket, being a fabricated 

basket, the type that you’d buy or rent, that 

it was adequate.

Gregory emphasized that Wilburn had appealed the 

citations issued by KOSH, and that it did not pay any 

penalties.

Gregory testified Wilburn hired JV Resources to perform 

on-site walk-throughs once or twice a month to identify 

safety violations. Logsdon of JV Resources had been at 

the job site the morning of the accident and did not report 

any safety violations. Gregory did not know whether 

Logsdon had observed Carr operating the RT forklift 

with personnel in the man platform. Logsdon returned to 

the jobsite subsequent to the accident to conduct an 

investigation.

Carr testified by deposition on April 27, 2018. Wilburn 

also filed Carr’s January 6, 2017 deposition from the 

companion claim of Brandon Cloud v. Davis Brothers, 

Claim # 2016-000978. Carr worked for Davis Brothers 

as the job superintendent/project manager at the time of 

the June 15, 2015 accident. Carr has operated RT or off 

road forklifts a few hundred times in his forty-year 

construction career. Carr received on-the-job and formal 

training in the operation of forklifts prior to the accident. 

Carr received a license to operate off road forklifts in 

2000. He testified that the license does not expire. 

Neither Davis Brothers nor Wilburn provided on-site 
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training to operate the RT forklift involved in the 

accident. Carr stated he was certified to operate the RT 

forklift on June 15, 2015, and he had previously operated 

such equipment. In the deposition taken in the 

companion claim, Carr testified he is unable to provide a 

training certificate demonstrating he was certified to 

operate the RT forklift prior to June 15, 2015, explaining 

he had lost his wallet containing all of his cards and 

certifications. He also stated that the employer that 

trained him was no longer in business.

Wilburn subcontracted with Davis Brothers to complete 

work on the building that had been abandoned by a prior 

subcontractor. Carr stated Gregory, the job site 

superintendent for Wilburn, instructed and directed what 

needed to be done. Wilburn provided Davis Brothers 

with equipment, including the RT forklift and man 

platform. At the January 2017 deposition, Carr indicated 

the RT forklift was already on site when Davis Brothers 

was hired. Davis Brothers had been at the jobsite for 

approximately three weeks prior to the accident. On June 

15, 2015, Davis Brothers was installing exterior wall 

panels using the RT forklift, operated by Carr. He lifted 

Massengill and Cloud in the man platform to install the 

panels. Carr testified as follows regarding how the 

accident happened: “I went and moved the forks with the 

man bucket in it, and we went to move them away from 

the wall to lower the guys down to the ground, and the 

lift just bounced, slid back and forth, whether it was wind 

or whatever, and it over weighted the machine and 

flipped the machine over.” Carr stated as follows 

regarding the man platform:

Q: And just to be clear, who instructed you 

to lift the – lift Mr. Cloud and Mr. 

Massengill up with the basket?

A: That’s what the equipment they give us 

to work, operate with.
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Q: Did anybody give you direction to lift 

Mr. Massengill and Mr. Cloud up using that 

man basket?

A: Yeah. The superintendent on the job 

site.

Q: The superintendent that was a D.W. 

Wilburn employee?

A: Correct.

Q: Do you believe you violated any safety 

rule or regulation on June the 15th, 2015?

A: No.

Q: Did you intentionally cause harm to 

anyone that day?

A: No.

. . . .

A: I asked Terry to bring me a man basket, 

and that’s what was delivered to me for 

doing that.

Q: You’re saying that D.W. Wilburn – you 

asked for a basket that was appropriate for 

that machine, but D.W. Wilburn brought 

that basket?

A: Correct.

Q: Are you aware based on your training 

that an oversized basket can cause the 

machine to come off balance and make it 

easier to tip over?
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A: Yes.

Carr explained that although he was trained to utilize a 

personnel carrier authorized by the equipment 

manufacturer, the sizing of the basket was never part of 

his safety training. He believed the platform Wilburn 

provided was safe and the appropriate size. He also 

stated he operated the RT forklift safely. Carr stated he 

looked at the operator’s manual before operating the RT 

forklift, but did not measure the platform before using it 

to lift personnel. Carr was aware the operator’s manual 

strongly recommended the RT forklift not be used as a 

personnel lift, but testified that all other on-site lifts 

designed to lift personnel were already in use on June 15, 

2015. Carr was aware that the operator’s manual 

instructs the operator not to tilt the machine with the 

boom raised. Assuming the operator’s manual instructs 

the platform is not to exceed 4x10 and he was using a 

man platform measuring 4x16, Carr agreed the platform 

was oversized. However, Carr did not agree with the 

KOSH report as to what caused the RT forklift to tip 

over. He noted a third party safety company had been 

present earlier in the day and it did not write up Davis 

Brothers for any safety violations.

The ALJ rendered an opinion May 13, 2019, finding 

Massengill entitled to income and medical benefits for 

which “the Defendants” are liable. The ALJ also 

determined Massengill failed to prove KRS 342.165(1) is 

applicable. Massengill filed a Petition for 

Reconsideration requesting multiple additional findings 

of fact addressing whether Davis Brothers and Wilburn 

violated a number of safety regulations. The ALJ 

overruled this petition on June 12, 2019. Massengill 

appealed.

In an opinion dated December 20, 2019, this Board 

determined the May 2019 opinion and June 2019 order 

were not final and appealable. The Board noted the ALJ 

failed to determined whether Davis Brothers bore the 
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initial liability for the award of income and medical 

benefits, whether Wilburn is an up-the-ladder contractor 

bearing the responsibility for income and medical 

benefits if not paid by Davis Brothers, and UEF liability. 

The Board concluded the May 2019 opinion and June 

2019 order were interlocutory, dismissed Massengill’s 

appeal, and remanded to the ALJ.

In the March 11, 2020 remand opinion, the ALJ 

determined Massengill is entitled to PPD benefits based 

upon the 29% impairment rating. The ALJ stated as 

follows, verbatim, regarding KRS 342.165:

. . . .

The purpose of KRS 342.165 is to reduce 

the frequency of industrial accidents by 

penalizing those who intentionally fail to 

comply with known safety regulations. 

Application of KRS 342.165 does not 

automatically flow from a showing of a 

violation of a specific safety regulation 

followed by a compensable injury. Burton 

v. Foster Wheeler Corp., 72 S.W.3d 925 

(KY 2002). The application of the safety 

penalty requires proof of two elements. 

First, the record must contain evidence of 

the existence of a violation of a specific 

safety provision, whether state or federal. 

Second, there must be evidence of “intent” 

to violate a specific safety provision. Intent 

to violate a regulation may be inferred from 

an employer’s failure to comply because 

employers are presumed to know what state 

and federal regulations require. Chaney v. 

Dags Branch Coal Co., 244 S.W.3d 95 (KY 

2008).

“Intentional failure” must be more than 

simple negligence. Penalties pursuant to 
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KRS 342.165(1) are punitive in nature, and 

require a level of conduct by a party 

equivalent to malfeasance, rather than 

misfeasance or nonfeasance. Terry v. AFG 

Industries, WCB Opinion No. 00-94292 

(January 2, 2003). The party must have an 

immediate cognizance that the conduct 

causing the injury is in contravention to the 

policy or regulation. Barmet of Kentucky [, 

Inc.] v. Sallee, 605 S.W.2d 29 (KY APP 

1980).

The ALJ finds Massengill failed to satisfy 

his burden of proving entitlement to the 

application of KRS 342.165. The ALJ is not 

convinced Davis Brothers nor D.W. Wilburn 

consciously disregarded or willfully failed to 

comply with any safety regulations or 

provisions. The evidence does not establish 

Gregory or Carr knowingly violated any 

safety regulations.

Carr did not believe he violated any safety 

rule or regulation on June 15, 2015. Carr 

had numerous forklift trainings and 

certifications. He testified the information 

regarding specific acceptable basket size for 

personnel was never covered in any of his 

safety trainings. Carr testified D.W. 

Wilburn sent him an OSHA approved basket

because it had the door and caging. Further, 

Carr testified the third-party safety person 

had been to the job site and found no issues 

with the lift or basket.

Gregory believed he provided a safe basket 

for the Lull lift. He testified Davis Brothers 

requested the Lull lift and basket. He 

explained there is an exception that allows 

for using the Lull lift for lifting personnel. 
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Gregory testified he was not aware of the 

regulation about the maximum acceptable 

size of the man basket allowed by the 

manufacturer. He thought he had provided 

an appropriate and safe basket for the lift. 

He testified he assumed it being a fabricated 

basket that you buy or rent, that it was 

adequate. He explained D.W. Wilburn had a 

third-party safety company, JV Resources, 

inspect the premises on a regular monthly 

basis. Like Carr, Gregory advised JV 

Resources found no safety issues with the 

basket and lift prior to the accident.

Based on the foregoing, the ALJ finds there 

is no evidence that either Davis Brothers or 

D.W. Wilburn knowingly or willfully failed 

to comply with any safety regulations or 

procedures.

The ALJ next determined Wilburn is an up-the-ladder 

employer and is liable for Massengill’s income and 

medical benefits stemming from the June 15, 2015 

accident. The ALJ awarded TTD benefits, PPD benefits, 

and medical benefits and found the defendants are 

entitled to a credit for the benefits received by Massengill 

from his Tennessee claim.

(Internal footnotes omitted.)

On appeal before the Board, Massengill argued the evidence of record 

compelled the imposition of the KRS 342.165(1) safety penalty enhancement to his 

award. In that regard, he emphasized the KOSH citations that were issued to both 

Davis Brothers and Wilburn. He also pointed to the various sections of the 

operator’s manual, discussed above, that warned against using the RT forklift as a 
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personnel lift. In that vein, he noted the manual stated the RT forklift was not to be 

used as a personnel lift unless there was no other practical option and that if it was 

so used, the personnel platform was required to comply with the design 

requirements. 

Massengill noted KOSH concluded that according to the applicable 

standard, the largest acceptable platform for the RT forklift was 4x10 feet; that 

Wilburn supplied a 4x16-foot man platform; and that KOSH had concluded the 

oversized platform contributed to instability and the risk of tilting. Massengill 

argued Wilburn selected and supplied the RT forklift and man platform. He noted 

Gregory admitted, during his deposition testimony, that the 4x16-foot man 

platform was not appropriate. Massengill also noted that while Gregory stated he 

had believed the 4x16-foot man platform was safe, Gregory had never ensured or 

investigated whether his belief was correct prior to the accident. 

Massengill also implied Wilburn had been in a hurry to complete the 

construction job and had rushed Davis Brothers. He also pointed to Carr’s 

testimony and asserted there was a substantial question of fact as to whether Carr 

had even been certified to operate the RT forklift at the time of the accident. 

Massengill also noted that although Wilburn had successfully appealed its 

companion KOSH citation, there was no evidence it had challenged any of 

KOSH’s findings against it underlying those citations.
-22-

As indicated, however, Massengill also asserted the ALJ’s analysis 

and factfinding insufficiently disclosed the basis of the ALJ’s decision and 

effectively thwarted intelligent review. Specifically, he argued it flowed from the 

ALJ’s misunderstanding of the applicable standard for determining whether an 

employer acted “intentionally” for purposes of applying the KRS 342.165(1) 

benefit enhancement.

And, as indicated, the Board found Massengill’s latter point 

dispositive. The Board explained:

KRS 342.165(1) provides as follows:

If an accident is caused in any degree by the 

intentional failure of the employer to comply 

with any specific statute or lawful 

administrative regulation made thereunder, 

communicated to the employer and relative 

to installation or maintenance of safety 

appliances or methods, the compensation for 

which the employer would otherwise have 

been liable under this chapter shall be 

increased thirty percent (30%) in the amount 

of each payment.

The purpose of KRS 342.165 is to reduce the frequency 

of industrial accidents by penalizing those who 

intentionally failed to comply with known safety 

regulations. Apex Mining v. Blankenship, 918 S.W.2d 

225 (Ky. 1996). The burden is on the claimant to 

demonstrate an employer’s intentional violation of a 

safety statute or regulation. Cabinet for Workforce 

Development v. Cummins, 950 S.W.2d 834 (Ky. 1997). 

The application of the safety penalty requires proof of 

two elements. Apex Mining v. Blankenship, supra. 
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First, the record must contain evidence of the existence 

of a violation of a specific safety provision, whether state 

or federal. Secondly, evidence of “intent” to violate a 

specific safety provision must also be present. Enhanced 

benefits do not automatically flow from a showing of a 

violation of a specific safety regulation followed by a 

compensable injury. Burton v. Foster Wheeler Corp., 72 

S.W.3d 925 (Ky. 2002). The worker has the burden to 

demonstrate the employer intentionally failed to comply 

with a specific statute or lawful regulation. Intent to 

violate a regulation can be inferred from an employer’s 

failure to comply with a specific statute or regulation 

because employers are presumed to know what state and 

federal regulations require. The Kentucky Supreme 

Court in Chaney v. Dags Branch Coal Co., 244 S.W.3d at 

101 (Ky. 2008), stated as follows:

Absent unusual circumstances such as those 

found in Gibbs Automatic Moulding Co. v. 

Bullock, 438 S.W.2d 793 (Ky. 1969), an 

employer is presumed to know what specific 

state and federal statutes and regulations 

concerning workplace safety require. Thus, 

its intent is inferred from the failure to 

comply with a specific statute or regulation. 

If the violation “in any degree” causes a 

work-related accident, KRS 342.165(1) 

applies. AIG/AIU Insurance Co. v. South 

Akers Mining Co., LLC, 192 S.W.3d 687 

(Ky. 2006), explains that KRS 342.165(1) is 

not penal in nature, although the party that 

pays more or receives less may well view it 

as such. Instead, KRS 342.165(1) gives 

employers and workers a financial incentive 

to follow safety rules without thwarting the 

purposes of the Act by removing them from 

its coverage. It serves to compensate the 

party that receives more or pays less for 

being subjected to the effects of the 
-24-

opponent’s “intentional failure” to comply 

with a safety statute or regulation.

Violation of the “general duty” clause set out in KRS 

338.031(1)(a) may well constitute grounds for 

assessment of a safety penalty in the absence of a specific 

regulation or statute addressing the matter. Apex Mining 

v. Blankenship, supra; Brusman v. Newport Steel Corp., 

17 S.W.3d 514 (Ky. 2000). KRS 338.031(1)(a) requires 

the employer “to furnish to each of his employees 

employment and a place of employment which are free 

from recognized hazards that are causing or likely to 

cause death or serious physical harm” to employees. The 

Kentucky Court of Appeals in Lexington-Fayette Urban 

County Government v. Offutt, 11 S.W.3d 598 (Ky. App. 

2000), applied a four-part test to determine whether a 

violation of KRS 338.031 had occurred. This test 

established a violation of a general duty clause occurs 

when “(1) [a] condition or activity in the workplace 

presented a hazard to employees; (2) [t]he cited employer 

or employer’s industry recognized the hazard; (3) [t]he 

hazard was likely to cause death or serious physical 

harm; and (4) [a] feasible means existed to eliminate or 

materially reduce the hazard.” Id. at 599.

A violation of the “general duty” clause set out in KRS 

338.031(1)(a) can satisfy the requirement set out in KRS 

342.165 that a “specific statute” was intentionally 

ignored. Not all violations of KRS 338.031(1)(a) 

automatically rise to a violation egregious enough to 

justify granting an enhancement under KRS 342.165. 

Cabinet for Workforce Development v. Cummins, 950 

S.W.2d at 836. See Apex Mining v. Blankenship, supra. 

In order for a violation of the general-duty provision to 

warrant enhancement pursuant to KRS 342.165(1), the 

employer must be found to have intentionally disregarded 

a safety hazard that even a lay person would obviously 

recognize as likely to cause death or serious physical 

harm. Hornback v. Hardin Memorial Hospital, 411 

S.W.3d 220, 226 (Ky. 2013).
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The ALJ must provide a sufficient basis to support his or 

her determination. Cornett v. Corbin Materials, Inc., 807 

S.W.2d 56 (Ky. 1991). Parties are entitled to findings 

sufficient to inform them of the basis for the ALJ’s 

decision to allow for meaningful review. Kentland 

Elkhorn Coal Corp. v. Yates, 743 S.W.2d 47 (Ky. App. 

1988); Shields v. Pittsburgh and Midway Coal Mining 

Co., [634 S.W.2d 440 (Ky. App. 1982)]. This Board is 

cognizant of the fact an ALJ is not required to engage in 

a detailed discussion of the facts or set forth the minute 

details of his or her reasoning in reaching a particular

result. The only requirement is the decision must 

adequately set forth the basic facts upon which the 

ultimate conclusion was drawn so the parties are 

reasonably apprised of the basis of the decision. Big 

Sandy Community Action Program v. Chaffins, 502 

S.W.2d 526 (Ky. 1973).

We determine the ALJ did not provide a sufficient 

analysis addressing the applicability of KRS 342.165(1). 

We first note the ALJ did not specify which alleged 

safety violations she considered in her analysis. 

Likewise, the Board is unable to determine whether the 

ALJ considered the KOSH report and citation, as well as 

the operator’s manual, in making her determination. 

Massengill alleged both specific safety regulations, 

consisting of 29 CFR 1926.451(c)(2)(iv) and 29 CFR 

1926.602(d), as well as the general duty clause contained 

in KRS 338.031(1)(a) in his Form SVC, which is 

consistent with the KOSH citations. Massengill 

additionally relied upon several provisions contained in 

the operator’s manual and the notice document attached 

to the RT forklift. Since Massengill raised violations of 

specific safety provisions and the general duty provision, 

the ALJ was required to perform analyses pursuant to 

Chaney v. Dags Branch Coal Co., supra, and LexingtonFayette Urban County Government v. Offutt, supra. 

Therefore, on remand, the ALJ is directed to specify 

which safety rule or regulation she is considering in her 

KRS 342.165(1) analysis, and to perform a complete 
-26-

analysis pursuant to Chaney v. Dags Branch Coal Co., 

supra, and Lexington-Fayette Urban County Government 

v. Offutt, supra, considering all of the evidence of record. 

If the ALJ determines Davis Brothers intentionally 

violated a specific safety statute or regulation, the ALJ is 

further directed to address whether the up-the-ladder 

employer, Wilburn, bears responsibility for the increased 

award. 

These appeals followed the Board’s decision. Regarding Wilburn’s 

appeal, the arguments Wilburn properly raised before this Court are, as discussed, 

twofold. First, Wilburn contends the Board effectively directed the ALJ to resolve 

an issue Massengill never raised (i.e., whether a KRS 342.165 enhancement to 

Massengill’s award could have been predicated upon a violation, by Davis 

Brothers and Wilburn, of the “general duty” standard of workplace safety set forth 

in KRS 338.031(1)(a)). Second, Wilburn contends that the ALJ’s order was 

adequate and that no additional factfinding or legal analysis is necessary.

Wilburn’s first argument is specious. To be sure, the ALJ’s benefit 

review conference order of November 13, 2018, merely indicates the issue 

Massengill raised was a “KRS 342.165 violation . . . plaintiff alleging separate 

violations against DW Wilburn and Davis Brothers.” But as the Board noted, 

Massengill asserted a violation of KRS 338.031(1)(a) in his Form SVC at the start 

of this litigation. In virtually all his pleadings during those proceedings, 

Massengill referenced the KOSH citations discussed above, and the KOSH 

citations discussed violations of KRS 338.031(1)(a). Most saliently, on page 
-27-

twelve of his brief before the ALJ – after citing and summarizing the contents of 

the KOSH citations and after asserting that Wilburn should be held responsible (as 

his up-the-ladder employer) for any of Davis Brothers’ safety violations –

Massengill argued:

[W]hen an operator is cited with specific safety 

violations, then his knowledge of the applicable laws is 

presumed and a safety penalty is mandated. Chaney v. 

Dags Branch Coal Co., 244 S.W.3d 95 (Ky. 2008). In 

addition to the specific OSHA violations, it is clear that 

Davis Brothers failed to provide Massengill or Brandon 

Cloud with a safe workplace as required under KRS 

338.031(1)(a).

(Emphasis added.)

In other words, Massengill did ask the ALJ to address this issue. That 

much was apparent.

Similarly, we agree with and adopt the Board’s assessment that the 

ALJ’s decision was inadequate. Massengill alleged three specific violations, none 

of which the ALJ specifically addressed. Moreover, in her order, the ALJ stated 

she based her decision regarding KRS 342.165 upon the notion that “there is no 

evidence that either Davis Brothers or D.W. Wilburn knowingly or willfully failed 

to comply with any safety regulations or procedures.” (Emphasis added.) 

Yet as the Board pointed out, some evidence of intent did exist, or at 

least may have. For example, if either of the specific safety regulations (i.e., 29 

CFR 1926.451(c)(2)(iv) and 29 CFR 1926.602(d)) were violated, intent would be 
-28-

presumed “[a]bsent unusual circumstances such as those found in Gibbs Automatic 

Moulding Co. v. Bullock, 438 S.W.2d 793 (Ky. 1969)[.]” See Chaney, 244 S.W.3d 

at 101. Here, absent any determination from the ALJ regarding whether those 

regulations were violated,4it is impossible to review whether that presumption 

applied or if so, whether it may have been vitiated by the requisite “unusual 

circumstances.” 

Likewise, for purposes of determining whether Wilburn and Davis 

Brothers violated the “general duty” standard of KRS 338.031(1)(a), the ALJ was 

required to determine whether the employer “intentionally disregarded a safety 

hazard that even a lay person would obviously recognize as likely to cause death or 

serious physical harm.” See Hornback, 411 S.W.3d at 226. As the Board 

indicated, the RT forklift’s operator’s manual provided some evidence in that 

respect, as did the “notice” sticker from the RT forklift which stated “This machine 

is not equipped to lift personnel. Never use this machine as a work platform.”

In Western Baptist Hospital v. Kelly, 827 S.W.2d 685 (Ky. 1992), the 

Kentucky Supreme Court described the role of the Court of Appeals in reviewing 

decisions of the Board: “The function of further review of the [Board] in the Court 

of Appeals is to correct the Board only where the [] Court perceives the Board has 

 

4 The fact that the employer settled or otherwise resolved a KOSH citation without admitting a 

violation is immaterial. In the context of a workers’ compensation claim, it is the responsibility 

of the ALJ to determine whether a violation of a statute or administrative regulation has 

occurred. See Brusman v. Newport Steel Corp., 17 S.W.3d 514, 520 (Ky. 2000).
-29-

overlooked or misconstrued controlling statutes or precedent, or committed an 

error in assessing the evidence so flagrant as to cause gross injustice.” Id. at 687-

88. Here, because the ALJ’s opinion is either factually incorrect or legally 

incorrect, the Board had no alternative but to vacate and remand for further 

findings and analysis, as it did. Hence, the Board did not err. For the reasons 

discussed, we AFFIRM with respect to both of these appeals.

ALL CONCUR.

BRIEF FOR APPELLANT/CROSSAPPELLEE D.W. WILBURN:

Douglas A. U’Sellis

Louisville, Kentucky

BRIEF FOR APPELLEE/CROSSAPPELLANT WADE 

MASSENGILL:

C. Phillip Wheeler, Jr.

Pikeville, Kentucky

BRIEF FOR APPELLEE/CROSSAPPELLEE DAVIS BROTHERS 

ROOFING:

Kimberly K. van der Heiden

Carlisle, Kentucky