## Facts

- Quentin Keith Little worked for Hawkeye Construction Company (Hawkeye) as a truck driver on a construction and reclamation job site.
- On August 30, 2002, Little was driving a loaded truck on a raised haul road when the truck left the roadway, rolled down a steep embankment (about 800 feet), and Little died.
- Federal mine-safety regulations required a berm on the outer edge of a raised roadway that was high enough to restrain the haulage vehicles using the road. (See 30 C.F.R. § 77.1605(k) and related definitions in 30 C.F.R. § 77.2(d).)
- Evidence showed the berm at the location where the truck left the road had worn down and was not high enough to restrain the trucks operating there.
- Hawkeye was aware of the berm’s low condition. Hawkeye asserted an excavator was working to repair the berm but had not reached the section where the accident occurred.
- Despite that knowledge, Hawkeye continued to allow trucks to haul on the road that day; testimony indicated the workday felt “rushed” and workers felt pressure to keep trucks moving.
- The Mine Safety and Health Administration (MSHA) investigated and issued a citation stating the berm along the affected stretch (about fifty feet) ranged from 0 to 20 inches high, while the axle height of the largest truck using the road was about 34 inches. MSHA concluded the berm condition contributed to the accident.
- Jayna Little, Little’s widow, sought workers’ compensation death benefits on behalf of their child, Kristen Little.
- The Administrative Law Judge (ALJ) found no evidence of mechanical failure in Little’s truck, found the truck’s height limited Little’s ability to see the road edge ahead of him, and found Hawkeye continued operations knowing the berm was inadequate.
- The ALJ awarded benefits and applied KRS 342.165(1), increasing payments by 30% based on Hawkeye’s intentional failure to comply with the berm safety regulation.
- The Kentucky Workers’ Compensation Board affirmed, concluding there was sufficient evidence that Hawkeye knew the berm was inadequate yet continued trucking operations, supporting an inference of intentional noncompliance.
- Hawkeye appealed to the Kentucky Court of Appeals, challenging whether substantial evidence supported the ALJ’s finding of “intentional” failure to comply.

## Issues

1. Whether substantial evidence supported the ALJ’s finding that Hawkeye’s failure to comply with the haul-road berm regulation was “intentional” under KRS 342.165(1).
2. Whether substantial evidence supported the finding that the regulatory violation contributed, in any degree, to Little’s fatal accident so that the 30% increase under KRS 342.165(1) applied.

## Decision

- The Kentucky Court of Appeals affirmed the Workers’ Compensation Board’s decision upholding the ALJ’s award.
- The court held the record contained substantial evidence supporting the ALJ’s findings that the berm did not meet the applicable safety requirement and that the condition contributed to the accident.
- The court also held substantial evidence supported the inference that Hawkeye’s noncompliance was intentional because Hawkeye knew the berm was inadequate but continued to run trucks on that haul road.

## Legal Principles

- KRS 342.165(1) requires a 30% increase in workers’ compensation payments when an accident is caused “in any degree” by an employer’s intentional failure to comply with a specific safety statute or lawful administrative regulation that is communicated to the employer and relates to safety appliances or methods.
- For haul roads at mine-related sites, federal regulations require a berm on the outer edge of a raised roadway of sufficient height to restrain the haulage vehicles using the road. (30 C.F.R. § 77.1605(k); 30 C.F.R. § 77.2(d).)
- “Intentional failure” under KRS 342.165(1) can be proven by showing the employer knew of the safety defect and continued operations despite that knowledge; a purpose to cause injury is not required.
- In Kentucky workers’ compensation cases, the ALJ is the fact-finder. The Board reviews for substantial evidence, and the Court of Appeals’ review is limited to whether the Board misconstrued controlling law or clearly erred in applying the substantial-evidence standard; the court does not reweigh evidence.

## Conclusion

The Court of Appeals upheld the 30% KRS 342.165(1) increase because substantial evidence supported the ALJ’s findings that Hawkeye knew the haul-road berm was too low to restrain its trucks, continued trucking operations anyway, and that the berm condition contributed to Quentin Little’s fatal rollover.


Hawkeye Construction Co. v. Little ex rel. Little, 151 S.W.3d 360 (2004)