TCA affirms findings of Occupational Safety and Health Review Commission and TOSHA findings in Death of Powerline Repairman

DILLARD SMITH CONSTRUCTION COMPANY v. COMMISSIONER OF LABOR AND WORKFORCE DEVELOPMENT (Tenn. Ct. App. July 7, 2009)

This appeal arises from a petition seeking judicial review of an administrative order. The Tennessee Department of Labor, Division of Occupational Safety and Health (TOSHA) cited Dillard Smith Construction Company for violating six safety regulations that related to the fatality of a Dillard Smith apprentice-lineman. The TOSHA Review Commission affirmed all six violations. The Chancery Court subsequently affirmed the Review Commission's findings as to five of the six violations but reversed one, concluding that the record did not support the finding that Dillard Smith failed to conduct a job briefing. Both parties appealed the Chancellor's rulings. The Commissioner contends that the Chancellor erred in reversing the finding that Dillard Smith failed to conduct the required job briefing. Dillard Smith contends that the Chancellor erred in affirming the other five violations -- that it failed to check conditions related to safety, its employee came into contact with an energized part, the cut-off switch was not opened, the line was not tested, and the line was not grounded.

We have concluded that the record contains substantial and material evidence to support the Review Commission's finding that Dillard Smith violated the TOSHA regulation that required a job briefing before beginning the first job of the day; therefore, we reverse the Chancellor's ruling that it did not. We have also concluded that the record contains substantial and material evidence to support the Review Commission's findings that Dillard Smith was also in violation of the other five TOSHA regulations for which it was cited. Therefore, we reverse in part and affirm in part.

This opinion can be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/smithconstruction_121609.pdf