Carnes v. Tremco Mfg. Co., No. 1999-SC-0536-WC.

• Decision Date: 26 October 2000
• Docket Number: No. 1999-SC-0536-WC.
• Citation: 30 S.W.3d 172
• Parties: Betty CARNES (Deceased); Phillip Carnes, Widower, Appellant, v. TREMCO MANUFACTURING COMPANY; Irene Steen, Administrative Law Judge; and Workers' Compensation Board, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 172

30 S.W.3d 172

Betty CARNES (Deceased); Phillip Carnes, Widower, Appellant, v. TREMCO MANUFACTURING COMPANY; Irene Steen, Administrative Law Judge; and Workers' Compensation Board, Appellees.

No. 1999-SC-0536-WC.

Supreme Court of Kentucky.

October 26, 2000.

John E. Anderson, Cole, Cole, Anderson & Nagle, PSC, Barbourville, for Appellant.

W. Barry Lewis, Lewis and Lewis Law Offices, Hazard, for Appellee Tremco Manufacturing Company.

OPINION OF THE COURT

This workers' compensation appeal concerns whether a finding that a worker's death did not arise from her employment was erroneous as a matter of law.

It is undisputed that Betty Carnes and Delmar Partin were co-workers and that they had engaged in an extramarital relationship which Carnes eventually ended. Approximately two to three months later, on September 26, 1993, Carnes was murdered by Partin while in the workplace. See Partin v. Commonwealth, Ky., 918 S.W.2d 219 (1996). Carnes' widower filed this claim on behalf of himself and their minor children. The parties agree that Partin was motivated by anger because Carnes had ended the relationship.

Carnes normally worked in the swiggle department, making an insulating tape used in thermal pane windows; however, she sometimes worked overtime on weekends as an assistant in the quality assurance lab. Partin worked in the lab. His duties required him to go to the swiggle department periodically to pick up samples for testing. Partin's personnel file contained a request that he not be asked to work on Sundays due to his religious convictions.

The swiggle department supervisor testified that in the three-month period prior to Carnes' death, he had seen her and Partin sitting at a table together during breaks and talking while she was working on the line. Several times, at Carnes' request, he had asked Partin to leave the department when he stayed longer than was necessary in order to talk with her. He explained that Carnes had said she did not want to talk to Partin and had asked him to stay away. He also testified that he had requested Partin's supervisor to keep him out of the department if he had no business there. On the Friday before her death Carnes had indicated that she was scheduled for overtime in the lab on the weekend but did not want it publicized. He testified that he had known Partin for 15-17 years and had no reason to believe that Partin was a danger to the deceased.

Robert Cornett worked near Carnes and had observed her and Partin when Partin came to the department. He testified that in the weeks immediately preceding her death, the deceased began to act nervous in Partin's presence and had told him she was afraid of Partin because she was ending their relationship. He also testified that she did not want Partin to know her work schedule.

Barbara Mason, another co-worker, testified that Partin spent an inordinate amount of time with Carnes when he came to the swiggle department. Carnes had told her she was afraid of Partin, and she thought he had been harassing Carnes at home and at work. She testified that Carnes did not put her time card in the rack so that Partin would not know her work schedule. Carnes knew that Partin did not work in the lab on Sundays.

Carnes was murdered on a Sunday while working in the lab. The plant was not operating at full strength; however, her supervisor indicated that approximately 10 to 12 other people would have been working at the time. There was evidence that the plant was not open to the public and that, like outsiders, off-duty workers would be questioned concerning why they were at the plant and would be asked to leave if they had no business there. The watchman/janitor who was on duty on September 26, 1993, testified that Partin came to the plant that morning carrying a small paper bag and told him that he was bringing a book to Herbie Smith.

The supervisor of the lab testified that Partin had asked several times to be scheduled to work with Carnes on Saturday, September 25, 1993; however, he did not schedule Carnes for that day. Instead, he had scheduled Games to work with Herbie Smith on Sunday, the 26th. He testified that Smith's work would have required him to be out of the lab for periods of 5-30 minutes to obtain samples. He testified that he had received a complaint that some of his men spent too much time in the swiggle department, that he had no reason to believe that Partin was dangerous before the murder, and that he was not aware that Carnes wanted help in avoiding Partin.

The human resources manager testified that Partin had never been written up for spending excessive time in the swiggle department. She testified that the company had a policy concerning harassment. She was unaware that Partin had harassed Carnes and noted that he had never been reprimanded for doing so. Carnes had told her she was being harassed outside of work but was uncertain of the identity of the perpetrator and did not indicate that it was Partin. Carnes had indicated that she did not want to be scheduled to work with Partin but did not say why. The manager testified that she had no reason to believe that Partin was dangerous before the murder and that, in September, 1993, there was no company policy concerning the presence of off-duty employees at the plant.

Dr. Granacher, who is board certified in forensic psychiatry, reviewed the record in both the criminal and workers' compensation cases. His opinion was that Partin's motive was unrelated to work but rather was his rejection by Carnes. He did not think that the workplace facilitated the murder or that there was anything the employer could reasonably have done to prevent it. There was no prior evidence that Partin was dangerous.

Dr. Feldmann, a board certified forensic psychiatrist who studies workplace violence, also reviewed the records. He concluded that Partin's intense interest in Carnes and Carnes' indications that she was fearful of Partin evidenced a risk that Partin would eventually become violent after being rejected. He testified that the motive for the murder was Carnes' rejection of Partin. He testified concerning actions an employer could take to decrease the likelihood of workplace violence.

Detective Adams, a state police detective who testified concerning the murder investigation, indicated that although the attack occurred in an open area of the lab, the area was obscured from view. He testified that Carnes had contacted the state police in an attempt to learn who had harassed her outside the workplace but later asked them to drop the matter.¹ He indicated that at the time Carnes was murdered the company had no policy concerning workplace violence, knew little about dealing with workplace violence, and had probably done the best it could. He discussed various precautions an employer could take to help reduce the likelihood of workplace violence. Another state policeman testified that there is a very high fatality rate in stalking situations.

The Administrative Law Judge (ALJ) who considered the matter concluded that Games' murder did not arise out of the employment and dismissed the claim....