Olsten-Kimberly Quality Care v. Parr

• Decision Date: 19 March 1998
• Docket Number: OLSTEN-KIMBERLY,No. 97-SC-688-WC,97-SC-688-WC
• Citation: 965 S.W.2d 155
• Parties: QUALITY CARE, Appellant, v. Charlita PARR; Hon. W. Bruce Cowden, Jr., Administrative Law Judge; and Workers' Compensation Board, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 155

965 S.W.2d 155

OLSTEN-KIMBERLY QUALITY CARE, Appellant, v. Charlita PARR; Hon. W. Bruce Cowden, Jr., Administrative Law Judge; and Workers' Compensation Board, Appellees.

No. 97-SC-688-WC.

Supreme Court of Kentucky.

March 19, 1998.

David L. Murphy, Scott C. Wilhoit, Clark, Ward & Cave, Louisville, for Appellant.

Thomas H. Hughes, Becker Law Office, Louisville, for Appellee/Parr.

OPINION OF THE COURT

This matter is before the Court as an appeal by the employer from an opinion of the Court of Appeals reversing the decision of the Workers' Compensation Board (Board). The Board's opinion upheld the Administrative Law Judge's (ALJ's) dismissal on the grounds that claimant's injury was not compensable as it was barred by the "going and coming" rule.

The issue presented in this appeal concerns the "service to the employer" exception to the "going and coming" rule.

Claimant was hired to act as a certified nursing assistant for the employer which provided home health care services. Her responsibilities included bathing, dressing, manicuring, and exercising patients. Claimant received her weekly assignments by telephoning the employer and receiving the names and addresses of the patients, as well as information regarding the services to be performed and the time frame in which they were to be completed. Therefore, she did not report to, or work from, the employer's physical office.

After claimant completed her job responsibilities with respect to the patient, she was required to complete paperwork and to return such to the employer either by mail or hand delivery. The employer maintained that it was company policy for its workers to complete the paperwork at the patients' homes. Claimant submitted that her routine included completing the paperwork after returning to her home and, thereafter, mailing the paperwork to the employer's office.

Regarding transportation, claimant was responsible for providing her own means of conveyance to and from the patients' homes as the employer did not furnish such to its workers as part of the employment relationship. However, workers were compensated for mileage incurred when providing services to nonprivate patients (services covered by governmental agencies such as Medicare or Medicaid); whereas, they were not compensated for mileage incurred when providing services to private patients (services paid by the patients' insurance company or by the patients themselves). Moreover, the testimony was that if claimant was unfamiliar with the route to be taken in order to easily get to and from the patients' homes, the employer provided her with a course to follow.

After performing services for a private patient on August 3, 1993, claimant was involved in an automobile accident which occasioned serious injuries and rendered her permanently quadriplegic. Claimant testified that she departed from the patient's home without completing the required paperwork, intending to complete such when she returned to her home. Resultantly, claimant filed an application for benefits. Ultimately, the parties stipulated that she was permanently and totally occupationally disabled, but disagreed as to whether the incident occurred in the course and scope of the subject employment.

The ALJ found that claimant had failed to establish that she was providing an identifiable service for the employer at the time of the incident by returning to her home to complete paperwork, and that she had failed to prove that her home had become part of the employer's premises. Therefore, applying the going and coming rule of noncompensability, the ALJ dismissed the claim.

Claimant appealed to the Board which, in a two-to-one decision, held that there was no compelling evidence to contradict the ALJ's rulings that (1) claimant was not returning to a home office on the date in question and (2) the actions of claimant at that time were not of benefit to the employer. Specifically, the Board stated:

Since no other purpose or errand has been shown, and since there is no evidence, such as payment for mileage or travel time, that Olsten considered Parr to be employed and at work during the time she was driving therefore, it was reasonable for the ALJ to conclude that the going and coming rule applied and that none of the exceptions took Parr's situation out of it.

Claimant appealed to the Court of Appeals which subsequently reversed the Board's opinion and remanded the claim for further findings. Specifically, the Court of Appeals noted that (1) there was no fixed job-site, (2) travel was an inherent requirement of the employment, (3) claimant would not have been in a place of danger but for the employment, and (4) the travel to and from the patients' home was of direct benefit to the employer's goals. Hence, the Court of Appeals determined that claimant's injury was sustained within the course and scope of her employment. In addition, the Court of Appeals noted that since it determined that the going and coming rule does not apply to the case herein, it was unnecessary to address the argument of whether claimant's home was a de facto office.

The employer now appeals to this Court and argues that the Court of Appeals exceeded its authority by substituting its judgment, regarding a question of fact, for that of the ALJ which had been affirmed by the Board. Moreover, the employer asserts that the evidence of record did not compel the conclusion that this case fit within any of the so-called exceptions to the going and coming rule. Namely, the employer...