Dee Whitaker Concrete v. Ellison

• Decision Date: 22 January 2021
• Docket Number: NO. 2020-CA-0639-WC,2020-CA-0639-WC
• Parties: DEE WHITAKER CONCRETE APPELLANT v. AUSTIN ELLISON; HONORABLE RICHARD E. NEAL, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
• Court: Kentucky Court of Appeals

DEE WHITAKER CONCRETE APPELLANT v. AUSTIN ELLISON; HONORABLE RICHARD E. NEAL,ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES

NO. 2020-CA-0639-WC

Commonwealth of Kentucky Court of Appeals

JANUARY 22, 2021

NOT TO BE PUBLISHED

PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD

ACTION NO. WC-17-66423

OPINION

AFFIRMING

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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES.

DIXON, JUDGE: Dee Whitaker Concrete petitions for review of the Workers' Compensation Board (Board) opinion entered on April 10, 2020, affirming the interlocutory opinion and order, as well as the opinion, award, and order entered on August 7, 2018, and December 9, 2019, respectively, by Administrative Law Judge (ALJ) Richard E. Neal. Following review of the record, briefs, and law, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Austin Ellison worked as a general laborer for Dee Whitaker Concrete. The work crew met each morning at the garage¹ owned by Forrest "Dee" Whitaker, owner of Dee Whitaker Concrete, to discuss assignments, load trucks, and carpool to the jobsite. On the morning of August 4, 2017, Ellison carpooled with Casey Whitaker—Dee's son—in Casey's truck. They completed all the work they could before it began to rain and decided to stop to eat lunch at a restaurant before returning to the garage. Ellison fell asleep soon after they left the jobsite. Unfortunately, they were involved in a motor vehicle accident (MVA) before reaching the restaurant. Ellison, who was not wearing a seatbelt, was ejected from the vehicle through its windshield. He was airlifted to University of Kentucky Chandler Medical Center.

On November 20, 2017, Ellison filed a Form 101, Application for Resolution of a Claim-Injury, alleging work-related injuries from the MVA described above. Dee Whitaker Concrete denied Ellison's claims, asserting theinjuries were not work-related under KRS² 342.650(7), since he was carpooling at the time of the accident. On August 7, 2018, the ALJ issued an interlocutory opinion and order finding the Act³ applicable to the claim because Ellison sustained injuries in the scope of his employment because he fell within the traveling employee and service to the employer exceptions to the "going and coming" rule. A benefit review conference was held on October 10, 2019, and on December 9, 2019, the ALJ rendered the opinion, award, and order awarding certain temporary total disability benefits, permanent partial disability benefits, and medical benefits to Ellison. No petition for reconsideration was filed. Instead, Dee Whitaker Concrete appealed the ALJ's orders to the Board, which affirmed the ALJ, and this appeal followed.

STANDARD OF REVIEW

The appropriate standard of review for workers' compensation claims was summarized in Bowerman v. Black Equipment Company, 297 S.W.3d 858, 866-67 (Ky. App. 2009).

Appellate review of any workers' compensation decision is limited to correction of the ALJ when the ALJ has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice. Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky.1992). Our standard of review differs in regard to appeals of an ALJ's decision concerning a question of law or a mixed question of law and fact vis-à-vis an ALJ's decision regarding a question of fact.

The first instance concerns questions of law or mixed questions of law and fact. As a reviewing court, we are bound neither by an ALJ's decisions on questions of law or an ALJ's interpretation and application of the law to the facts. In either case, our standard of review is de novo. Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001); Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998). . . .

The second instance concerns questions of fact. [Kentucky Revised Statutes (KRS)] 342.285 designates the ALJ as finder of fact, and has been construed to mean that the factfinder has the sole discretion to determine the quality, character, weight, credibility, and substance of the evidence, and to draw reasonable inferences from the evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985); [McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46, 47 (Ky. 1974)]. . . .

KRS 342.285 also establishes a "clearly erroneous" standard of review for appeals concerning factual findings rendered by an ALJ, and is determined based on reasonableness. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).

Id.

"GOING AND COMING" RULE

The "going and coming" rule pertaining to coverage under the Act is well-established. It has been defined by Kentucky's highest court, stating:

The general rule is that injuries sustained by workers when they are going to or returning from the place wherethey regularly perform the duties connected with their employment are not deemed to arise out of and in the course of the employment as the hazards ordinarily encountered in such journeys are not incident to the employer's business. See Kaycee Coal Co. v. Short, [450 S.W.2d 262 (Ky. 1970)].

Receveur Const. Co./Realm, Inc. v. Rogers, 958 S.W.2d 18, 20 (Ky. 1997). However, this rule—like many others—is not without exceptions, two of which the ALJ found applicable.

Here, the accident occurred after Ellison left the jobsite with the work crew but before they reached the restaurant on the way back to Whitaker's garage. The ALJ found, and the Board affirmed, that Ellison fell within the traveling employee and service to the employer exceptions to the "going and coming" rule. We agree, for the reasons discussed below.

TRAVELING EMPLOYEE EXCEPTION

The traveling employee exception to the "going and coming" rule is well-settled. Kentucky's highest court at the time observed the following concerning this exception:

It is quite a different thing to go to and from a work site away from the regular place of employment, than it is to go to and from one's home to one's usual place of employment; it is the latter which generally comes within the so-called 'going and coming rule' absolving employers from Workmen's Compensation liability. The former comes within the principle stated in Larson, Workmen's Compensation Law, Vol. 1, Sec. 25.00: 'Employees whose work entails travel away from theemployer's premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable.' [Turner Day & Woolworth Handle Co. v. Pennington, 250 Ky. 433, 63 S.W.2d 490 (Ky. 1933); Standard Oil Co. v. Witt, 283 Ky. 327, 141 S.W.2d 271 (Ky. 1940).]

Although traffic perils are ones to which all travelers are exposed, the particular exposure of Tichenor in the case at bar was caused by the requirements of his employment and was implicit in the understanding his employer had with him at the time he was hired. [Palmer v. Main, 209 Ky. 226, 272 S.W. 736 (Ky. 1925); Hinkle v. Allen Codell Co., 298 Ky. 102, 182 S.W.2d 20 (Ky. 1944).] In the recent case of [Corken v. Corken Steel Prod.'s, Inc., 385 S.W.2d 949 (Ky. 1964)], where a traveling salesman was killed on a public street by a demented stranger, we approved an award of compensation, and said:

'We accept the view that causal connection is sufficient if the exposure results from the employment. * * * Corken's employment was the reason for his presence at what turned out to be a place of danger, and except for his presence there he would not have been killed.'

Black v. Tichenor, 396 S.W.2d 794, 796-97 (Ky. 1965).

In its interlocutory order, the ALJ found Ellison's work required travel away from Dee Whitaker Concrete's premises—the garage where employees met each day to carpool to various jobsites. Just as in Tichenor, it was implicit in the understanding between Ellison and Dee Whitaker Concrete that travel would berequired. It was during this work-required travel that Ellison was placed in danger; thus, his injury was work-related and covered by the Act. The ALJ also correctly determined that the intent of the employees to stop at a restaurant on the way back to the garage did not constitute a distinct departure sufficient to defeat the traveling employee exception to the "going and coming" rule.

Dee Whitaker Concrete contends the traveling employee exception does not apply herein because "that status applies only to employees whose work entails travel away from their usual place of employment." However, in Olsten-Kimberly Quality Care v. Parr, 965 S.W.2d 155, 157 (Ky. 1998), the court observed:

Even more appropriate to the case at bar is the idea that "[w]hen travel is a requirement of employment and is implicit in the understanding between the employee and the employer at the time the employment contract was entered into, then injuries which occur going to or coming from a work place will generally be held to be work-related and compensable, except when a distinct departure or deviation on a personal errand is shown." William S. Haynes, Kentucky Jurisprudence, Workers' Compensation, § 10-3 (revised 1990). Also see [Tichenor, 396 S.W.2d 794, and Handy v. Kentucky State Highway Dep't, 335 S.W.2d 560 (Ky. 1960)].

Here, it is undisputed that travel was a requirement of Ellison's employment as the crew daily performed work away from Whitaker's garage. We agree with the ALJ's reliance on and application of Parr to the claim herein. We also note thatany failure of the Board to specifically affirm the ALJ on this issue is of no consequence as it affirmed the ALJ's orders in toto.

SERVICE TO THE EMPLOYER EXCEPTION

Kentucky's highest court described the service to the employer exception, simply stating:

transitory activities of employees are covered if they are providing some service to the employer[.] See Standard Gravure Corp. v. Grabhorn, [702 S.W.2d 49 (Ky. App. 1985)]; Spurgeon v.

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