RELATES TO: KRS Chapter 338
NECESSITY, FUNCTION, AND CONFORMITY:
authorize the Kentucky Occupational Safety and Health Review Commission to hear
and rule on appeals from citations, notifications, and variances and promulgate
administrative regulations with respect to the procedural aspect of its
hearings. According to
13B.020(3)(e) 2a, these
occupational safety and health hearings are conducted under the authority of
rather than the hearing procedures in KRS Chapter 13B. This administrative
regulation establishes procedures for these hearings and their proper
(1) "Act" means the Occupational Safety and
Health Act of 1972, KRS Chapter 338.
(2) "Affected employee" or "employee" means
an employee of a cited employer who is exposed to the alleged hazard described
in the citation, as a result of the employee's assigned duties.
(3) "Authorized employee representative"
means a labor organization which has a collective bargaining relationship with
a cited employer and which represents affected employees.
(4) "Citation" means a written communication
issued by the commissioner to an employer pursuant to
(5) "Commission" means the Kentucky
Occupational Safety and Health Review Commission.
(6) "Commissioner" means the commissioner of
the Department of Workplace Standards, Labor Cabinet.
(7) "Day" means a calendar day.
(8) "Executive director" means the executive
director of the commission.
"Hearing officer" means a hearing officer appointed by the commission pursuant
(10) "Natural person" means an employer whose
business is organized as a proprietorship or an affected employee who is not
represented by a labor organization.
(11) "Proceeding" means any proceeding before
the commission or before a hearing officer.
(12) "Representative" means an attorney
authorized by a party or intervenor to represent him in a proceeding.
(13) "Working day" means all days except
Saturdays, Sundays, or federal or state holidays.
(1) Regular meetings of the commission shall
be held in its offices, Frankfort, Kentucky, on the first Tuesday of each month
at 10:00 a.m., unless changed to another date, place, or time by commission
(2) Special meetings shall
be held at the times and places as the call directs.
(3) The commission shall be considered as in
continuous session for the performance of administrative duties.
Assignment of Hearing;
(1) Pursuant to
338.081, cases coming before the commission
may be assigned to a hearing officer within the discretion of the commission
for a hearing and a finding of facts, conclusions of law, and recommended
order. Cases may be withdrawn by agreement, dismissed for cause, or otherwise
disposed of before hearing in the discretion and judgment of the commission.
Further, the commission may, upon its own motion or on motion of a party, if
granted, hold hearings as provided under
338.071, in which case provisions of this
administrative regulation relating to hearing officers and hearings shall apply
(2) A recommended
order or adjudication by the hearing officer or the initial order of the review
commission, if dismissed or disposed of as provided in subsection (1) of this
section or if the commission sits for a hearing, shall become the final order
of the commission under the provisions of
appealable to the Franklin Circuit Court forty (40) days from date of issue,
unless called for further review pursuant to Section 48 of this administrative
regulation. If reviewed by the commission, an order of the commission
determinative of issues before it shall become a final order as defined in
338.091(1) upon date of
(3) Prior to the assignment
of a case to a hearing officer, all papers shall be filed with the executive
director at the commission offices, #4 Millcreek Park, Frankfort, Kentucky
40601. Subsequent to the assignment of the case to a hearing officer, and
before the hearing officer issues a decision, all papers shall be filed with
the hearing officer at the address given in the notice informing of the
assignment. Subsequent to a decision of the hearing officer, all papers shall
be filed with the executive director.
(4) Unless otherwise ordered, all filing may
be accomplished by first-class mail.
(5) Filing is effective when
of Rules; Applicability of Kentucky Rules of Civil Procedure.
(1) The rules established by this
administrative regulation shall govern all proceedings before the commission
and its hearing officers.
the absence of a specific provision, procedure shall be in accordance with the
Kentucky Rules of Civil Procedure.
Words Denoting Number or Gender.
(1) Words importing the singular number may
extend and be applied to the plural and vice versa.
(2) Words importing masculine gender may be
applied to feminine and vice versa.
Computation of Time.
(1) In computing a period of time prescribed
or allowed in these rules, the day from which the designated period begins to
run shall not be included. The last day of the period so computed shall be
included unless it is a Saturday, Sunday, or federal or state holiday, in which
event the period runs until the end of the next day not a Saturday, Sunday, or
federal or state holiday. If the period of time prescribed or allowed is less
than seven (7) days, intermediate Saturdays, Sundays, and federal or state
holidays shall be excluded in the computation.
(2) If service of a pleading or document is
by mail pursuant to Section 3 of this administrative regulation, three (3) days
shall be added to the time allowed by these rules for the filing of a
7. Extensions of Time. Requests for extensions of time for the
filing of a pleading or document shall be received in advance of the date on
which the pleading or document is due to be filed.
Section 8. Record Address. The initial
pleading filed by a person shall contain the person's name, address, and
telephone number. A change in this information shall be communicated promptly
to the hearing officer or the commission, as the case may be, and to all other
parties and intervenors. A party or intervenor who fails to furnish the
information shall have waived the right to notice and service under these
(a) Except as provided in paragraph (b) of
this subsection, a copy of all pleadings or other documents shall be served by
the filing party or intervenor on every other party or intervenor at the time
of filing in accordance with this section. Every paper relating to discovery
required to be served on a party shall also be served on all parties and
in-tervenors in accordance with this section.
(b) The original complaint, or an amended
complaint if filed prior to service of the original complaint, shall be served
in accordance with Section 20(3) of this administrative regulation.
(2) Service upon a party or
intervenor who has appeared through an attorney shall be made only upon the
(3) Unless otherwise
ordered, service may be accomplished by postage pre-paid first class mail at
the last known address, by electronic transmission, or by personal delivery.
Service is effective when mailed (if by mail), at the time of receipt (if by
electronic transmission), or when personally delivered (if by personal
delivery). Documents sent by overnight delivery service shall be deemed
personal delivery. Service of documents by electronic transmission shall only
be permitted if all parties consent to that method of service in writing. The
certificate of service of the electronic transmission shall state that the
required consent has been given and the method of transmission.
(4) Proof of service shall be accomplished by
a written statement of service which states the date and manner of service. The
statement shall be filed with the pleading or document.
(5) If service is accomplished by posting,
proof of posting shall be filed not later than the first working day following
(6) Service and notice
to employees represented by an authorized employee representative shall be
accomplished by serving the authorized employee representative in the manner
prescribed in subsection (3) of this section. If the authorized employee
representative has appeared in a proceeding on behalf of the employees it
represents, service shall be made upon the attorney for the authorized employee
If there are
affected employees who are not represented by an authorized employee
representative, the employer shall immediately upon receipt of notice of
contest or request for extension or modification of the abatement period post,
where the citation is required to be posted by
, Section 1(1), a copy of the notice of contest
and a notice informing the affected employees of their right to party status
and of the availability of all pleadings for inspection and copying at
reasonable times. A notice in the following form shall comply with this
(Name of employer)
Your employer has been cited by the Commissioner of the
Department of Workplace Standards for violation of the Occupational Safety and
Health Act of 1972. The citation has been contested and will be the subject of
a hearing before the Occupational Safety and Health Review Commission. Affected
employees are entitled to participate in this hearing as parties under terms
and conditions established by the Occupational Safety and Health Review
Commission in its rules of procedure. Notice of intent to participate shall be
sent to: Kentucky Occupational Safety and Health Review Commission #4 Millcreek
Park Frankfort, Kentucky 40601
All papers relevant to this matter may be inspected at: (Place
shall be reasonably convenient to employees, preferably at or near work
(8) If appropriate,
the second sentence of the notice required by subsection (7) of this section
shall be deleted and the following sentence shall be substituted: The
reasonableness of the period prescribed by the Commissioner of the Department
of Workplace Standards for abatement of the violation has been contested and
will be the subject of a hearing before the Occupational Safety and Health
authorized employee representative, if any, shall be served with the notice
required by subsections (7) and (8) of this section and with a copy of the
notice of contest.
(10) A copy of
the notice of the hearing to be held before the hearing officer shall be served
by the employer on affected employees who are not represented by an authorized
employee representative by posting a copy of the notice of the hearing at or
near the place where the citation is required to be posted by subsection (7) of
(11) A copy of the
notice of the hearing to be held before the hearing officer shall be served by
the employer on the authorized employee representative or affected employees in
the manner prescribed in subsection (3) of this section, if the employer has
not been informed that the authorized employee representative has entered an
appearance as of the date the notice is received by the employer.
(12) If a notice of contest is filed by an
affected employee or an authorized employee representative, a copy of the
notice of contest and response filed in support shall be provided to the
employer for posting in the manner prescribed in subsection (7) of this
(13) An authorized
employee representative who files a notice of contest shall serve any other
authorized employee representative whose members are affected
(14) If posting is
required by this section, posting shall be maintained until the commencement of
the hearing or until earlier disposition.
Section 10. Consolidation. Cases may be
consolidated on the motion of a party, on the hearing officer's own motion, or
on the commission's own motion if there are common parties, common questions of
law or fact, or both, or in other circumstances as justice and the
administration of the Act require.
11. Severance. Upon its own motion, or upon motion of a party or
intervenor, the commission or the hearing officer may, for good cause, order a
proceeding severed with respect to some or all issues or parties.
Protection of Trade Secrets and
Other Confidential Information.
application by any person, in a proceeding where trade secrets or other matters
may be divulged, the confidentiality of which is protected by law, the hearing
officer shall issue orders as may be appropriate to protect the confidentiality
of those matters.
appeal from an adverse ruling under this section shall be granted as a matter
Employer or Employee Contests.
(1) If a notice
of contest is filed by an employer contesting a citation or notification issued
an employee or an authorized employee representative may elect party status by
a request for intervention at any time before commencement of the hearing or,
if no hearing is held, before notice of an executed settlement agreement has
been served according to Section 51(3) of this administrative
(2) If a notice of
contest is filed by an employee or by an authorized employee representative
contesting a citation or notification issued pursuant to
the employer may elect party status at any time before commencement of the
hearing or, if no hearing is held, before notice of an executed settlement
agreement has been served according to Section 51(3) of this administrative
(1) A petition for leave to
intervene may be filed at any stage of a proceeding before commencement of the
hearing, or if there is a settlement or dismissal, before issuance of a
(2) The petition
shall state the interest of the petitioner in the proceeding and show that
participation of the petitioner will assist in the determination of the issues
in question and that the intervention will not unnecessarily delay the
(3) The commission or
the hearing officer may grant a petition for intervention to the extent and
upon those terms as the commission or the hearing officer shall
(4) The caption of all
cases where intervention is allowed shall reflect the intervention by adding,
to the caption after the name of the respondent, the name of the intervenor
followed by the designation intervenor.
Representatives of Parties and
(1) Except for natural persons
who may represent themselves, a party or intervenor shall appear through an
(2) A representative of a
party or intervenor shall control all matters respecting the interest of the
party or intervenor in the proceeding.
(3) Affected employees who are represented by
an authorized employee representative may appear only through an attorney for
the authorized employee representative.
(4) Affected employees who are not
represented by an authorized employee representative may elect party status by
filing a request for intervention.
(5) Withdrawal of appearance of a
representative may be effected by filing a written notice of withdrawal and by
serving a copy of the notice on all parties and intervenors.
(1) An employer, employee or authorized
employee representative who receives notification of an adverse ruling to an
application for a variance made pursuant to
338.153 may, within fifteen (15) working days
of issuance of the ruling, file a notice of contest with the commissioner. The
commissioner shall transmit the notice, together with the complete record in
the matter as compiled before the commissioner, to the commission within seven
(7) days of receipt, under authority of
(2) The commission may on its own order or on
motion of a party, if granted, consider the matter on the record or may require
further hearing or filings of information in the matter.
(3) All pertinent provisions relating to
contests of citations, if applicable, shall apply.
Request for Extension or
Modification of Abatement.
(1) A party
adversely affected by a ruling of the commissioner on an application for
extension or modification of an abatement period may file an appeal from the
notification with the commissioner, if an appeal is filed within fifteen (15)
working days from receipt of the notice. The appeal shall be limited to the
commissioner's ruling affecting the party's application for extension or
modification of the abatement period.
(2) The commissioner shall transmit the
appeal to the commission within seven (7) days after its receipt, together with
all pertinent and relevant records considered by the commissioner in making the
(3) The commissioner shall
file a response to the appeal within ten (10) days of receipt of notice of the
(4) The commission may on
its own order or on motion of a party, if granted, consider the matter on the
record or may require further hearing, pleading, or information in the
(1) Except as provided in this section,
there are no specific requirements as to the form of any pleading. A pleading
is simply required to contain a caption sufficient to identify the parties in
accordance with Section 19 of this administrative regulation which shall
include the commission's docket number and a clear and plain statement of the
relief that is sought, together with the grounds for the requested
(2) Pleadings and other
documents (other than exhibits) shall be typewritten, double spaced.
(3) Pleadings shall be signed by the party
filing or by the party's representative. Signing constitutes a representation
that the signer has read the document or pleading; that to the best of the
signer's knowledge, information, and belief, the statements made therein are
true, and that it is not interposed for delay.
(4) The commission may refuse for filing any
pleading or document which does not comply with the requirements of subsections
(1), (2), and (3) of this section.
(5) All pleadings shall be filed in duplicate
unless otherwise indicated.
pleading shall be assumed to be correct as submitted unless a reply or denial
is received within ten (10) days of receipt of the pleading.
(1) Cases initiated by a notice of contest
shall be titled: Commissioner of the Department of Workplace Standards,
Complainant v. (Name of Contestant), Respondent.
(2) Cases initiated from an adverse ruling of
the commissioner of the Department of Workplace Standards relative to a
variance or by a request for extension or modification of the abatement period
shall be titled: (Name of Petitioner), Petitioner v. Commissioner of the
Department of Workplace Standards, Respondent.
(3) The titles listed in subsections (1) and
(2) of this section shall appear at the left upper portion of the initial page
of any pleading or document (other than exhibits) filed.
(4) The initial page of any pleading or
document (other than exhibits) shall show, at the upper right of the page
opposite the title, the docket number assigned by the commission.
Notices of Contest of
(1) Any employer, employee or
authorized employee representative may contest any citation issued pursuant to
(2) If a notice of contest is received by the
commissioner, the original and one (1) copy of the notification of contest
shall be transmitted to the commission together with copies of all relevant
documents, within seven (7) days of receipt of notice by the
(a) The commissioner shall file a complaint
with the commission no later than twenty (20) days after receiving the notice
The complaint shall
set forth all alleged violations and proposed penalties which are contested,
stating with particularity:
1. The basis for
2. The time,
location, place, and circumstances of each alleged violation; and
3. The considerations upon which the period
for abatement and the proposed penalty on each alleged violation is
(c) If the
commissioner seeks in the complaint to amend the citation or proposed penalty,
the commissioner shall state the reasons for amendment and shall state with
particularity the change sought.
The commissioner shall ensure that a copy
of the complaint is personally served on the employer as required by this
1. An employer who is an individual
within the Commonwealth. Service shall be made upon the individual within the
Commonwealth, other than an unmarried infant or person of unsound mind, by
delivering a copy of the complaint to the person or, if acceptance is refused,
by offering personal delivery to the person, or by delivering a copy of the
complaint to an agent authorized by appointment or by law to receive service of
process for the individual.
employer who is an infant or person of unsound mind. Service shall be made upon
an unmarried infant or a person of unsound mind by serving the person's
resident guardian or committee if there is one known to the commissioner or, if
none, by serving either the person's father or mother within the Commonwealth
or, if none; by serving the person within the Commonwealth having control of
the individual. If there are no persons, application shall be made to the
appropriate court to appoint a practicing attorney as guardian ad litem who
shall be served.
3. An employer
which is a partnership or unincorporated association. Service shall be made
upon a partnership or unincorporated association subject to suit under a common
name by serving a partner or managing agent of the partnership, or an officer
or managing agent of the association, or an agent authorized by appointment or
by law to receive service on its behalf.
4. An employer which is a corporation.
Service shall be made upon a corporation by serving an officer or managing
agent, or any other agent authorized by appointment or by law to receive
service on its behalf.
employer which is the Commonwealth or a state agency. Service shall be made
upon the Commonwealth or a state agency by serving the attorney general or an
assistant attorney general.
employer which is a county, city, public board, or other similar body. Service
shall be made upon a county by serving the county judge or, if he is absent
from the county, the county attorney. Service shall be made upon a city by
serving its chief executive officer or official attorney. Service on a public
board or other similar body, except state agencies, shall be made by serving a
7. An employer which is an
individual out of this state. Service may be made upon an individual out of
this Commonwealth, other than an unmarried infant, a person of unsound mind or
a prisoner, by certified mail or by personal delivery by someone who is over
eighteen (18) years of age as prescribed in paragraph (e) of this
8. A nonresident
employer. Service may be made upon a nonresident individual who transacts
business through an office or agency in this Commonwealth, or a resident
individual who transacts business through an office or agency in any action
growing out of or connected with the business of an office or agency, by
serving the person in charge.
Manner of service. The commissioner shall
arrange for an authorized person to perform personal delivery or serve the
complaint through certified or registered mail.
1. Personal Delivery. The commissioner shall
arrange for an authorized person to perform service. Proof of service shall be
by affidavit of the person making the service stating the time, place, and the
individual who accepted or refused a copy of the complaint on behalf of the
2. Certified or
Registered Mail. The commissioner shall send a copy of the complaint to the
employer by United States certified or registered mail, return receipt
requested with instructions to the delivering postal employee to deliver to the
addressee and show the address where delivered and the date of delivery. The
return receipt shall be proof of the time, place, and manner of service by
registered or certified mail.
Service of the complaint is effective upon receipt by the employer. The
commissioner shall file proof of service with the commission promptly after
service, and, in any event, within the time during which the employer shall
respond to the complaint.
(a) Within fifteen (15) days after service of
the complaint, the party against whom the complaint was issued shall file an
answer with the commission.
answer shall contain a short and plain statement denying those allegations in
the complaint which the party intends to contest. Any allegation not denied is
(c) Failure to file an
answer may constitute a default and dismissal of the employer's notice of
contest pursuant to Section 23 of this administrative regulation. Prior to the
dismissal of a notice of contest for failing to file an answer, the commission
shall enter an order requiring the employer to show cause as to why the
commission should not declare the employer to be in default. The commission
shall serve its order pursuant to Section 9 of this administrative regulation.
The order shall provide at least seven (7) days from the date of service for
the employer to respond. The commission may dismiss the notice of contest if
the employer fails to comply with the show cause.
Section 21. Statement of Position.
At any time prior to the commencement of the hearing before the hearing
officer, a person entitled to appear as a party, or a person who has been
granted leave to intervene, may file a statement of position with respect to
any or all issues to be heard.
22. Response to Motions. A party or intervenor upon whom a motion
is served shall have ten (10) days from service of the motion to file a
Section 23. Failure to
File. Failure to file any pleading pursuant to these rules when due may, in the
discretion of the commission or the hearing officer, constitute a waiver of
right to further participation in the proceedings.
Section 24. Withdrawal of Notice of Contest.
At any stage of a proceeding, a party may withdraw his or her notice of
contest, subject to the approval of the commission.
(1) At any time before a hearing, the
commission or the hearing officer, on their own motion or on motion of a party,
may direct the parties or their representatives to exchange information or to
participate in a prehearing conference for the purpose of considering matters
which will tend to simplify the issues or expedite the proceedings.
(2) The commission or the hearing officer may
issue a prehearing order which includes the agreements reached by the parties.
The order shall be served on all parties and shall be a part of the
General Provisions Concerning Discovery; Methods; Service of Discovery Papers;
Scope of Discovery; Protective Orders; Sanctions; Supplementation of Responses.
(1) In conformity with this section, any
party may, without leave of the commission or hearing officer, obtain discovery
through requests for admissions, interrogatories, and requests for production
or inspection as set forth in Section 27 of this administrative regulation.
Discovery shall not be available through depositions under Section 28 of this
administrative regulation without leave of the commission or hearing
(2) Every paper relating
to discovery required to be served on a party shall be served on all parties
pursuant to Section 9 of this administrative regulation. Requests for
production or inspection, requests for admission and responses, interrogatories
and answers, and discovery depositions shall be served upon other counsel or
parties, but shall not be filed with the commission or hearing officer. If the
interrogatories, requests, answers, responses, or depositions are to be used at
the hearing or are necessary to a prehearing motion that might result in a
final order on any claim, the portions used shall be filed with the hearing
officer or commission at the outset of the hearing or at the filing of the
motion if their use can be reasonably anticipated.
(3) The information or response sought
through discovery may concern any matter that is not privileged and is relevant
to the subject matter involved in the pending case. It shall not be a ground
for objection that the information or response sought will be inadmissible at
the hearing, if the information or response appears reasonably calculated to
lead to the discovery of admissible evidence, regardless of which party has the
burden of proof.
Upon motion by
a party or by the person from whom discovery is sought, and for good cause
shown, the hearing officer or commission may make any order which justice
requires to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including one or more of the following:
(a) That the discovery not be had;
(b) That the discovery may be had only on
specified terms and conditions, including a designation of the time or
(c) That the discovery may
be had only by a method of discovery other than that selected by the party
(d) That certain
matters not be inquired into, or that the scope of the discovery be limited to
(e) That discovery
be conducted with no one present except persons designated by the commission or
(f) That a
deposition after being sealed be opened only by order of the commission or
(g) That a trade
secret or other confidential research, development, or commercial information
not be disclosed or be disclosed only in a designated way; or
(h) That the parties simultaneously file
specified documents or information enclosed in sealed envelopes to be opened as
directed by the commission or hearing officer.
A party may apply for an order compelling
discovery if another party refuses or obstructs discovery. An evasive or
incomplete answer shall be treated as failure to answer. If a hearing officer
enters an order compelling discovery and there is failure to comply with that
order, the hearing officer or commission may enter appropriate orders that are
just, including the following sanctions:
An order that designated facts shall be taken to be established for purposes of
the case in accordance with the claim of the party obtaining that
(b) An order refusing to
permit the disobedient party to support or oppose designated claims or
defenses, or prohibiting it from introducing matters in evidence;
(c) An order striking out pleadings or any of
its parts, or staying further proceedings until the order is obeyed;
(d) An order dismissing the
proceeding or any of its parts, or rendering an order by default against the
party who has responded to a request for discovery with a response that was
complete when made shall not have to supplement the response to include
information acquired later, except as established by this subsection.
A party shall seasonably supplement the
response with respect to any questions directly addressed to:
1. The identity and locations of persons
having knowledge of discoverable matters; and
2. The identity of each person expected to be
called as an expert witness at the hearing, the subject matter on which the
person is expected to testify, and the substance of the person's
shall seasonably amend a prior response if the party obtains information upon
the basis of which:
1. The party knows that
the response was incorrect when made; or
2. The party knows that the response though
correct when made is no longer true and under the circumstances, a failure to
amend the response is in substance a knowing concealment.
(c) A duty to supplement responses may be
imposed by order of the commission or hearing officer, agreement of the
parties, or at any time prior to the hearing through a new request for
supplementation of prior responses.
Requests for Admissions,
Interrogatories, Production of Documents and Things.
Requests for Admissions.
(a) At any time after the filing of
responsive pleadings, a party may request of any other party written requests
for admissions, for the purposes of the pending action only, of the genuineness
and authenticity of any document described in or attached to the requests, or
of the truth of any specified matter of facts to be made under oath. Each
matter of which an admission is requested shall be stated separately. The
number of requested admissions shall not exceed twenty-five (25), including
subparts, without an order of the commission or hearing officer. The party
seeking more than twenty-five (25) requested admissions, including subparts,
shall have the burden of persuasion to establish that the complexity of the
case or the number of citation items necessitates a greater number of requested
requested shall be stated separately. The matter shall be admitted unless,
within thirty (30) days after service of the request or within a shorter or
longer time as the commission or the hearing officer may prescribe, the party
to whom the request is directed serves upon the party requesting the admission
a written response specifically:
or denying the matter involved in whole or in part;
2. Asserting that it cannot be truthfully
admitted or denied and stating in detail the reasons why this is so;
3. Stating an objection,
explaining in detail the reason for the objection. The response shall be made
under oath or affirmation and signed by the party or the party's
matter admitted under this subsection shall be conclusively established unless
the commission or hearing officer on motion permits withdrawal or amendment of
the admission. The commission or hearing officer may permit withdrawal or
amendment if doing so will subserve the presentation of the merits of the case
and the party who obtained the admission fails to satisfy the commission or
hearing officer that withdrawal or amendment will prejudice that party in
presenting his or her case or defense on the merits.
At any time after the filing of
responsive pleadings, a party may serve interrogatories upon any other party.
The number of interrogatories shall not exceed twenty-five (25) questions,
including subparts, without an order of the commission or hearing officer. The
party seeking to serve more than twenty-five (25) questions, including
subparts, shall have the burden of persuasion to establish that the complexity
of the case or the number of citation items necessitates a greater number of
interrogatories. The following shall not be included in the maximum allowed:
1. Interrogatories requesting the name and
address of the person answering;
The names and addresses of the witnesses; and
3. Whether the person answering is willing to
supplement his or her answers if information subsequently becomes
interrogatory shall be answered separately and fully in writing under oath or
affirmation, unless it is objected to. If objected to, the reasons for
objection shall be stated instead of an answer. The answers shall be signed by
the person making them and the objections by the party or the party's counsel.
The party upon whom the interrogatories have been served shall serve a copy of
answers or objections upon all parties within thirty (30) days after service of
the interrogatories. The hearing officer may allow a shorter or longer
(c) An interrogatory shall
not necessarily be objectionable merely because an answer to the interrogatory
involves an opinion or contention that relates to fact or the application of
law to fact.
Production of documents and things.
time after the filing of responsive pleadings, a party may serve on any other
party a request to:
1. Produce or permit the
party making the request, or a person acting on his or her behalf, to inspect
and copy any designated documents, or to inspect and copy, test, or sample any
tangible things which are in the possession, custody, or control of the party
upon whom the request is served; or
2. Permit entry upon the designated land or
other property in the possession or control of the party upon whom the request
is served for the purpose of inspection and measuring, surveying,
photographing, testing, or sampling the property or any designated object or
operations on the property.
(b) The request shall state items to be
inspected either by individual item or category, and describe each item and
category with reasonable particularity. The request shall specify a reasonable
time, place, and manner of making the inspection and performing related acts.
The party upon whom the request is made shall serve a written response within
thirty (30) days after the service of the request. The hearing officer may
allow a shorter or longer time. The response shall state, with respect to each
item or category, that inspection and related activities will be permitted as
requested, unless the request is objected to. If objected to, the reasons for
objection shall be stated.
(1) Except by special order of the commission
or the hearing officer, discovery depositions of parties, intervenors, or
witnesses shall not be allowed.
A party wishing to take a discovery deposition shall file a written application
with the commission or hearing officer and shall serve the application on all
other parties and interve-nors not less than fourteen (14) days prior to the
time when it is desired to take the discovery deposition. The application shall
state the reasons why the deposition should be taken and shall contain:
(a) The name and address of the
(b) The scope of
questioning expected to be asked of the deponent;
(c) The time and place proposed for the
taking of the deposition; and
The name and address of the officer before whom it is desired that the
deposition be taken.
If the commission or the hearing officer grants an application for the conduct
of discovery depositions, the order shall state appropriate scope and time
limits for the discovery.
(a) Except as provided in paragraph (b) of
this subsection, the procedure for taking the deposition shall be governed by
Section 40(3) of this administrative regulation.
(b) A discovery deposition transcript shall
not be delivered to the executive director as required by Section 40(3) of this
officer before whom the deposition is taken shall meet the requirements of
Section 40(2) of this administrative regulation.
Issuance of Subpoenas;
Petitions to Revoke or Modify Subpoenas; Right to Inspect or Copy Data.
(1) A member of the commission shall, on the
application of a party directed to the commission, forthwith issue subpoenas
requiring the attendance and testimony of witnesses and the production of any
evidence, including relevant books, records, correspondence or documents in the
witness's possession or under the witness's control. Applications for
subpoenas, if filed subsequent to the assignment of the case to a hearing
officer, may be filed with the hearing officer. A hearing officer shall grant
the application on behalf of any member of the commission. Applications for
subpoenas may be made ex parte. The subpoena shall show on its face the name
and address of the party at whose request the subpoena was issued.
(2) A person served with a subpoena, whether
ad testificandum or duces tecum, shall within five (5) days after the date of
service of the subpoena upon him move in writing to revoke or modify the
subpoena if he does not intend to comply. Motions to revoke or modify shall be
served on the party at whose request the subpoena was issued. The hearing
officer or the commission, as the case may be, shall revoke or modify the
subpoena if, in its opinion the evidence whose production is required does not
relate to any matter under investigation or in question in the proceedings or
the subpoena does not describe with sufficient particularity the evidence whose
production is required, or if for any other reason sufficient in law the
subpoena is otherwise invalid. The hearing officer or the commission, as the
case may be, shall make a simple statement of procedural or other grounds for
the ruling on the motion to revoke or modify. The motion to revoke or modify,
any answer filed in response, and the ruling on the motion shall become a part
of the record.
compelled to submit data or evidence at a public proceeding may retain or, on
payments of lawfully prescribed costs, procure copies of transcripts of the
data or evidence submitted by them.
(4) Upon the failure of any person to comply
with a subpoena issued upon the request of a party, the party seeking to
enforce the challenged subpoena shall initiate proceedings in the Franklin
Circuit Court or appropriate circuit court to enforce the subpoena if, in its
judgment enforcement would be consistent with law and with policies of the
(1) Notice of the time, place, and
nature of a hearing shall be given to the parties and intervenors at least ten
(10) days in advance of the hearing, except as otherwise provided in Section 52
of this administrative regulation.
(2) Copy of notice of hearing shall be served
by the employer on affected employees or the affected employees' representative
as provided in Section 9(9) and (10) of this administrative regulation, if no
information has been received by the employer as to the employee intervention
in the case before the commission. Notice of hearing shall be given by the
commission to any party or intervenor.
(3) The hearing officer shall secure or cause
to be secured a location for the hearing and secure a reporter for the taking
of proof at any hearing.
Postponement of Hearing.
Postponement of a hearing ordinarily shall not be allowed.
(2) Except in the case of an extreme
emergency or in unusual circumstances, a request shall not be considered unless
received in writing at least three (3) days in advance of the time set for the
(3) Postponement of
hearing not in excess of thirty (30) days may be granted in the discretion of
the hearing officer. One (1) additional postponement not in excess of thirty
(30) days may be granted by the hearing officer in extreme emergency or under
unusual circumstances. An additional postponement shall not be granted without
Failure to Appear.
Subject to the provisions of subsection (3) of this section, the failure of a
party to appear at a hearing shall be a waiver of all rights except the rights
to be served with a copy of the decision of the hearing officer and to request
commission review pursuant to Section 48 of this administrative
(2) Requests for
reinstatement shall be made, in the absence of extraordinary circumstances,
within five (5) days after the scheduled hearing date.
(3) The commission or the hearing officer
upon a showing of good cause may excuse the failure to appear. If excused, the
hearing shall be rescheduled.
33. Payment of Witness Fees and Mileage; Fees of Persons Taking
Depositions. Witness fees and mileage shall be paid by the party at whose
instance the witness appears, and the person taking a deposition shall be paid
by the party at whose instance the deposition is taken.
Section 34. Reporter's Fees. Reporter's fees
shall be borne by the commission, except as provided in Section 33 of this
35. Transcript of Testimony. Hearings shall be transcribed
verbatim. A copy of the transcript of testimony taken at the hearing, duly
certified by the reporter, shall be filed with the hearing officer before whom
the matter was heard. The hearing officer shall promptly serve notice upon each
of the parties and intervenors of the filing. Participants desiring copies of
transcripts may obtain them from the official reporter after paying the
and Powers of Hearing Officers. The hearing officer shall conduct a fair and
impartial hearing to assure that the facts are fully elicited and to adjudicate
all issues and avoid delay. The hearing officer shall have authority with
respect to cases assigned to him, between the time he is designated and the
time he issues his decision, subject to this administrative regulation, to:
(1) Administer oaths and
(2) Issue authorized
(3) Rule upon petitions
to revoke subpoenas;
(4) Rule upon
offers of proof and receive relevant evidence;
(5) Take or cause depositions to be taken if
the needs of justice would be served;
(6) Regulate the course of the hearing and,
if appropriate or necessary, exclude persons or counsel from the hearing for
contemptuous conduct and strike all related testimony of witnesses refusing to
answer any proper questions;
Hold conferences for the settlement or simplification of the issues;
(8) Dispose of procedural requests or similar
matters including motions referred to the hearing officer by the commission and
motions to amend pleadings; to dismiss complaints or portions of them; and to
order hearings reopened or, upon motion, consolidated prior to issuance of his
(9) Call and examine
witnesses and to introduce into the record documentary or other
(10) Request the parties
at any time during the hearing to state their respective positions concerning
any issue in the case or theory in support of their positions;
(11) Adjourn the hearing as the needs of
justice and good administration require; and
(12) Take any other action necessary and
authorized by this administrative regulation.
Disqualification of Hearing
(1) A hearing officer may withdraw
from a proceeding if disqualification is warranted.
(2) A party may request the hearing officer
at any time, following his designation and before the filing of his decision,
to withdraw on grounds of personal bias or disqualification by filing with him
promptly upon the discovery of the alleged facts an affidavit setting forth in
detail the matters alleged to constitute grounds for
(3) If, in the
opinion of the hearing officer the affidavit referred to in subsection (2) of
this section is filed with due diligence and is sufficient on its face, the
hearing officer shall forthwith disqualify himself and withdraw from the
(4) If the hearing
officer does not disqualify himself and withdraw from the proceedings, he shall
so rule upon the record, stating the grounds for his ruling, and shall proceed
with the hearing; or, if the hearing has closed, he shall proceed with the
issuance of his decision in accordance with Section 47 of this administrative
Examination of Witnesses. Witnesses shall be examined orally under oath.
Opposing parties shall have the right to cross-examine any witness whose
testimony is introduced by an adverse party.
Section 39. Affidavits. An affidavit may be
admitted as evidence in lieu of oral testimony if the matters contained in the
affidavit are otherwise admissible and the parties agree to its
in Lieu of Oral Testimony; Application; Procedures; Form; Rulings.
application to take the deposition of a witness in lieu of oral testimony shall
be in writing and shall state the reasons a deposition should be taken. The
application shall contain:
1. The name and
address of the witness;
matters the witness is expected to testify about;
3. The time and place proposed for the taking
of the deposition; and
4. The name
and address of the officer before whom it is desired that the deposition be
taken. The officer shall meet the requirements of subsection (2) of this
application shall be filed with the commission or the hearing officer, as the
case may be, and shall be served on all other parties and intervenors not less
than seven (7) days (when the deposition is to be taken elsewhere) prior to the
time when it is desired that the deposition be taken.
(c) If good cause has been shown, the
commission or the hearing officer shall make and serve on the parties and
intervenors an order which specifies the name of the witness whose deposition
is to be taken and the time, place, and designation of the officer before whom
the witness is to testify. The officer may or may not be the officer specified
in the application.
The deposition may be taken before an officer authorized to administer oaths by
the laws of Kentucky or of the place where the examination is held. If the
examination is held in a foreign country, it may be taken before a secretary of
embassy or legation, consul general, consul, vice consul, or consular agent of
the United States.
(3) At the time
and place specified in the order, the officer designated to take the deposition
shall permit the witness to be examined and cross-examined under oath by all
parties appearing, and the testimony of the witness shall be reduced to
typewriting by the officer or under his direction. All objections to questions
or evidence shall be waived, unless made at the examination. The officer shall
not have power to rule upon any objection, but he shall note them upon the
deposition. The testimony shall be subscribed by the witness in the presence of
the officer who shall attach his certificate stating that the witness was duly
sworn by him; that the deposition is a true record of the testimony and
exhibits given by the witness; and that the officer is not of counsel or
attorney to any of the parties nor interested in the proceeding. If the
deposition is not signed by the witness because he is ill, dead, cannot be
found, refuses to sign it, or will be unavailable to sign the typed deposition
and it is so stated by agreement, the fact shall be included in the certificate
of the officer and the deposition may be used as fully as though signed. The
officer shall immediately deliver an original of the transcript, together with
his certificate, in person or by certified mail to the Executive Director,
Kentucky Occupational Safety and Health Review Commission, #4 Millcreek Park,
Frankfort, Kentucky 40601.
hearing officer shall rule upon the admissibility of the deposition or any part
(5) Errors or irregularities
in compliance with the provisions of this section shall be waived unless a
motion to suppress the deposition or some part of it is made with reasonable
promptness after the defect is, or with due diligence might have been,
(6) If the parties so
stipulate in writing, depositions may be taken before any person at any time or
place, upon any notice and in any manner, and when so taken may be used as
(1) All exhibits
offered in evidence shall be numbered and marked with a designation identifying
the party or intervenor by whom the exhibit is offered.
(2) In the absence of objection by another
party or intervenor, exhibits shall be admitted into evidence as a part of the
record, unless excluded by the hearing officer pursuant to Section 42 of this
Unless the hearing officer finds it impractical, a copy of each exhibit shall
be given to the other parties and intervenors.
(4) All exhibits offered but denied admission
into evidence shall be identified as in subsection (1) of this section and
shall be placed in a separate file designated for rejected exhibits.
Section 42. Rules of Evidence.
Hearings before the commission and its hearing officers insofar as practicable
shall be governed by the Kentucky Rules of Evidence.
Burden of Proof.
(1) In all proceedings commenced by the
filing of a notice of contest, the burden of proof shall rest with the
(2) In proceedings
commenced by a request for extension or modification of the abatement period,
the burden of establishing the necessity for the extension or modification
shall rest with the petitioner.
In all proceedings commenced by appealing from an adverse ruling on a variance
application, the burden of proving the inequity of the ruling of the
commissioner of the Department of Workplace Standards shall rest on the
(1) An objection
with respect to the conduct of the hearing, including an objection to the
introduction of evidence or a ruling of the hearing officer, may be stated
orally or in writing, accompanied by a short statement of the grounds for the
objection, and shall be included in the record. An objection shall not be
waived by further participation in the hearing.
(2) If evidence is excluded from the record,
the party offering the evidence may make an offer of proof, which shall be
included in the record of the proceeding.
Interlocutory Appeals; Special;
as of Right.
(1) Rulings by the hearing
officer shall not be appealed directly to the commission except by its special
(2) Request to the
commission for special permission to appeal from a ruling shall be filed in
writing within five (5) days following receipt of the ruling and shall state
briefly the grounds relied on.
Interlocutory appeal from a ruling of the hearing officer shall be allowed as
of right if the hearing officer certifies that:
(a) The ruling involves an important question
of law concerning which there is substantial ground for difference of opinion;
(b) An immediate appeal from
the ruling will materially expedite the proceedings. An appeal shall also be
allowed in the circumstances set forth in Section 12 of this administrative
the filing of a petition for interlocutory appeal nor the granting thereof as
provided in subsections (2) and (3) of this section shall stay the proceedings
before the hearing officer unless a stay is specifically ordered by the
Filing of Briefs and Proposed Findings with the Hearing Officer; Oral Argument
at the Hearing.
(1) Any party shall be
entitled, upon request, to a reasonable period at the close of the hearing for
oral argument, which shall be included in the stenographic report of the
hearing. Any party shall be entitled, upon request made before the close of the
hearing, to file a brief, proposed findings of fact and conclusions of law, or
both, with the hearing officer. The hearing officer may fix a reasonable period
of time for the filing, but the initial period shall not exceed thirty (30)
days from the receipt by the party of the transcript of the hearing or the date
the hearing officer designates by order of his receipt. The complainant shall
have fifteen (15) days to file, the respondent ten (10) days and the
complainant five (5) days for reply, unless a shorter period is agreed on by
all parties. Intervenors shall have until the 25th
day of the thirty (30) day period in which to file briefs.
(2) A brief shall be filed within the time
fixed and the hearing officer or the commission may refuse to consider any
brief filed after the deadline. Application for extension of time to file
briefs shall be made to the hearing officer or commission before whom the
hearing was held.
(3) Briefs shall
be accompanied with notice showing service upon all other parties; in addition
to the original filed, three (3) copies of each document shall be furnished to
Decisions of Hearing Officers.
(1) The decision of the hearing officer shall
include findings of fact, conclusions of law, and a recommended order disposing
of all issues before the hearing officer.
(2) The hearing officer shall sign the
decision and forward to the executive director. The executive director shall
then date and issue the decision, sending a copy to all parties of record and
to each commission member. Upon issuance of the recommended order, jurisdiction
shall rest solely in the commission, and all motions, petitions, and other
pleadings filed subsequent to its issuance shall be addressed to the
(3) The recommended
order of the hearing officer may be called for further review by any commission
member or by the commission as a whole at any time within a forty (40) day
period. If the recommended order is not ordered for further review, it shall
become the final order of the commission forty (40) days after date of
issuance. If a recommended order is called for review by a commission member or
the commission on its own order, parties shall be advised in order that briefs
may be submitted if desired. The commission shall set the briefing
Discretionary Review; Petition.
(1) A party
aggrieved by the decision of a hearing officer may submit a petition for
petition shall be received by the commission at its offices in Frankfort,
Kentucky on or before the 25th day following receipt by the commission of the
hearing officer's decision.
petition shall contain a concise statement of each portion of the decision and
order to which exception is taken and may be accompanied by a brief of points
and authorities relied upon. The original and three (3) copies shall be filed
with the commission.
in opposition to petitions for discretionary review may be filed at any time
during the review period, if received by the commission on or before the 35th
day from date of issuance of the recommended order. The statement shall contain
a concise statement on each portion of the petition for discretionary review to
which it is addressed.
commission while reviewing a case may request briefs on any point, and shall
set the time for filing.
original and three (3) copies of all briefs or statements provided for under
this section and Section 47 of this administrative regulation shall be
furnished for use of the commission.
(7) Failure to act on any petition for
discretionary review in the review period shall be a denial of the
Stay of Final Order.
(1) A party aggrieved by
a final order of the commission may, while the matter is within the
jurisdiction of the commission, file a motion for a stay.
(2) The motion shall state the reasons a stay
is sought and the length of the stay requested.
(3) The commission may order a stay for the
period requested or for a longer or shorter period as it finds
Oral Argument Before the Commission.
argument before the commission ordinarily shall not be allowed.
(2) If the commission desires to hear oral
argument with respect to any matter, it shall advise all parties to the
proceeding of the date, hour, place, time allotted, and scope of argument at
least ten (10) days prior to the date set.
Settlement or Dismissals.
(1) Settlement is encouraged at any stage of
the proceedings if a settlement is consistent with the provisions and
objectives of the Act.
Settlement agreements submitted by the parties shall be accompanied by an
appropriate proposed order. The settlement agreement shall detail the basis for
settlement, either by order or a stipulated agreement properly signed by all
(3) If parties to
settlement agree upon a proposal, it shall be served upon represented and
unrepresented affected employees in the manner set forth in Section 9 of this
administrative regulation. Proof of service shall accompany the proposed
settlement when submitted to the commission or the hearing officer showing the
notice to employees or authorized employee representative ten (10) days before
submission to the hearing officer or the commission.
(4) In an action on a citation on motion of
either party for dismissal, the motion shall state the reason for dismissal and
show posting for ten (10) days as required for settlement agreements by
subsection (3) of this section. If dismissal is moved by the respondent,
respondent shall also show abatement of cited violation and payment of any
penalty, if applicable.
Upon application of a party or intervenor, or upon a commissioner's own motion,
a commission member may order an expedited proceeding.
(2) If an expedited proceeding is ordered,
the executive director shall notify all parties and intervenors.
(3) The hearing officer assigned in an
expedited proceeding shall make necessary rulings, with respect to time for
filing of pleadings and with respect to all other matters, without reference to
times required by this administrative regulation, shall order daily transcripts
of the hearing, and shall do all other things necessary to complete the
proceeding in the minimum time consistent with fairness.
Section 53. Standards of Conduct. Persons
appearing in a proceeding shall conform to the standards of ethical conduct
required in the courts of the Commonwealth of Kentucky.
Ex Parte Communication.
(1) There shall not be ex parte
communication, with respect to the merits of any case not concluded, between
the commission, including a member, officer, employee, or agent of the
commission who is employed in the decisional process, and a party or
(2) If an ex parte
communication occurs, the commission or the hearing officer may make orders or
take action as fairness requires. Upon notice and hearing, the commission may
take disciplinary action as is appropriate in the circumstances against any
person who knowingly and willfully makes or solicits the making of a prohibited
ex parte communication.
55. Restrictions as to Participation by Investigative or
Prosecuting Officers. In a proceeding noticed pursuant to this administrative
regulation, the commissioner shall not participate or advise with respect to
the report of the hearing officer or the commission decision.
Inspection and Reproduction of
(1) Subject to the provisions of
law restricting public disclosure of information, a person may, at the offices
of the commission, inspect and copy any document filed in a
(2) Costs shall be
borne by the requesting person.
Restrictions with Respect to
(1) A former employee of the
commission or the commissioner (including a member of the commission or the
executive director) shall not appear before the commission as an attorney for a
party in a proceeding or other matter, formal or informal, in which the former
employee participated personally and substantially during the period of
(2) A former employee
of the commission or the commissioner (including a member of the commission or
the executive director) shall not appear before the commission as an attorney
for a party in a proceeding or other matter, formal or informal, for which the
former employee was personally responsible during the period of employment,
unless one (1) year has elapsed since the termination of the
Amendments to Rules. The commission may at any time upon its own motion or
initiative, or upon written suggestion of an interested person stating
reasonable grounds in support, amend or revoke any of the rules contained in
this administrative regulation, in compliance with KRS Chapter 13A.
Section 59. Special Circumstances, Waiver of
Rules. In special circumstances not contemplated by this administrative
regulation, or for good cause shown, the commission may, upon application by a
party or intervenor, or on its own motion, after three (3) days notice to all
parties and intervenors, waive any rule or issue orders as justice or the
administration of the Act Requires.
60. Penalties. All penalties assessed by the commission are