The deposition of two state investigators, Tracy Stumbo
and Whorley Taylor, are also contained in the record.
...Tracy Stumbo ("Stumbo"), chief accident investigator for the Commonwealth of Kentucky Office of Mine Safety and Licensing, testified he was familiar with regulations concerning mine safety and control issues and was the chief investigator of the fatal accident.Stumbo
was questioned in detail concerning roof control plans in general.He
testified the roof control plan gives the design of the mine, including the width of the entries.It specifies the type of roof support to be installed, and safety precautions to accomplish control of the roof so there are no falls.The plan is submitted to his
office and a roof control inspector or specialist reviews it and may request changes.Stumbo
physically goes into the mine to check the roof to see if the plan is feasible.A copy of Dags Branch's roof control plan was attached to Stumbo's deposition as an exhibit.Stumbo
wrote two citations as a result of his
investigation of the fatal accident.
explained that since an extended cut was made, no one was allowed to go inby the next to last row of roof bolts.Stumbo
confirmed the roof control plan contained nothing about reflectors.Stumbo
testified that if it is known an extended cut is going to be taken, the mine foreman generally puts two marks on the rib where the continuous miner is to begin to cut.Concerning the placement of reflectors, Stumbo
testified that sometimes they are put on by the foreman before the miner makes its cut, and sometimes they are put on after the cut has been made and equipment moved out of the way. Stumbo
testified the cut had been completed prior to the roof fall, but the equipment had not yet been moved.Stumbo
explained the state does not have a recommendation of whether to put markers up prior to the cut or after the cut.
believed Eric had been handling the miner cable at the time of the accident because the cable was alongside his body.
testified that Dags Branch
could have hung the reflectors on the next to last row and it was a management call as to when to hang the reflectors.
explained that rocks usually do not start to fall from the end which has the roof bolts.
Also contained in the record is the state report prepared by Stumbo
dated August 23, 2004.The report lists two conditions or circumstances that may have contributed to the accident.
The approved plan states that ‘The continuous miner operator (remote control station) and other persons in the area shall not expose any portion of their body inby the second row of undisturbed permanent supports' A fatal accident occurred on June 17, 2004, when a Utility Man was positioned inby the second row of undisturbed permanent roof supports and received fatal crushing injuries from a fall of roof that originated in the unsupported cut and extended to the second row of roof bolts.' I am more persuaded by the testimony of Mr. Stumbo
and Mr. Taylor and therefore find that Mr. Chaney was positioned past the second row (next to last) row [sic] of roof bolts, which is in violation of the approved roof control plan when the roof fell, causing his fatal injuries.
...I am persuaded by the testimony of Mr. Stumbo that reflectors or warning markers serve as a warning of imminent danger that you may be going beyond roof support.
I am persuaded by the testimony of Mr. Stumbo
and Mr. Taylor that warning markers were not placed on the second (next to last) row of roof bolts at the time of the accident.
said that there was ample room to place the markers either prior to the miner making the cut or afterwards.He
said the state has no specific recommendation of when to hang the markers.He
considered this a management call.The federal officials did cite defendant for no markers.The report states: "A 104(d)1) citation No. 7404627, was issued to Dags Branch Coal Co., Inc.
for a violation of 30 CFR 75.208: a readily visible warning device or physical barrier to impeded [sic] the travel beyond permanent support was not installed at the end of permanent roof support at both approaches to the unsupported crosscut between the No. 6 and No. 7 entries on the 001-0MMU.A fatal accident occurred on June 17, 2004, when a utility man received crushing injuries from a fall of roof that originated in the unsupported area where no warning devices were installed.[']
We must specifically look at the defendant's not hanging warning markers prior to the cut being made by the continuous miner to see if this is intentional so as to warrant the 30% increase in compensation.Having considered the evidence in its entirety, I am more persuaded by the testimony of Mr. Stumbo
that it is strictly a management call of whether to hang the markers before or after the continuous miner cut.
...It does not matter that Tracy Stumbo, chief accident investigator for the Commonwealth of Kentucky, Office of Mine Safety and Licensing, testified he was familiar with regulations concerning mine safety and control issues and that the state does not have a recommendation of whether the warning devices are put in place prior to the cut or after the cut.