NICKELL, JUDGE: Doug Trevino seeks review of a decision of the Workers' Compensation Board ("Board"), affirming an Administrative Law Judge's ("ALJ") denial of a claim for income and medical benefits. Trevino does not attack the ALJ's findings of fact. He challenges only the interpretation of the special defense contained in KRS1 342.610(3)2 which reads:
[l]iability for compensation shall not apply where injury, occupational disease, or death to the employee was proximately caused primarily by voluntary intoxication as defined in KRS 501.010, or by his or her willful intention to injure or kill himself, herself, or another.
Discerning no error, we affirm.
Trevino was employed as a bus driver by Transit Authority of River City (TARC) in Jefferson County, Kentucky. He claimed he was disabled by work-related injuries sustained on November 9, 2013, when a passenger assaulted him causing injuries to his face and teeth, as well as post-traumatic stress disorder. TARC, in its Notice of Claim Denial or Acceptance and Special Answer (Form 111), denied the claim citing KRS 342.610(3) and arguing Trevino was the aggressor and acted outside the scope of his employment as a bus driver. In support of its position, TARC submitted an on-board surveillance video of the altercation. At the Benefits Review Conference ("BRC"), the parties stipulated the video's authenticity.
Trevino testified at the BRC, acknowledging he had seen the video.
A: I've seen it.
Q: Is it substantially as you-
A. I think it's right dead [sic] to what I've described. It don't [sic] show me going up there and grabbing him like this and throwing him, no. It was on the shoulder like this, and out the door. I didn't try to punch or anything, I seen [sic] the guy had his fists up, so I knew I had to do something. I'm not a dummy. I know that, the lower level force is try to get him off the bus, and that's what I did, because I've got to think of the passengers' safety too, not just mine. I had some old people on the bus. I didn't want them getting hurt.
. . .
Q: You said you have seen the video?
A: Yes.
Q: Would that video show you saying anything that was perhaps less than polite to the passenger?
A: Just hollering at him saying, you know, you've got to be quiet and you've got to get off the bus.
Q: Would that video perhaps show that he was a little more calm and collected that [sic] you're indicating here today?
A: I don't think it will, no.
After reviewing the video several times, the ALJ concluded Trevino intentionally instigated the assault, was the proximate cause of the assault, and was, therefore, ineligible to receive benefits by operation of KRS 342.610(3). In an opinion rendered November 28, 2016, the ALJ wrote in relevant part,
Mr. Tervino's [sic] actions of standing up and shoving the assailant (backwards down the bus steps) as well asthe verbal argument with the assailant were definitely the precipitating factors leading to the violent response.
Thereafter, the ALJ wrote:
[Trevino] testified that he was only responding to the assailant's threatening behavior. However, as I viewed the video and audio, several factors were not as Mr. Trevino had described in his Hearing testimony. First he testified that the assailant did not pay the bus fare. The assailant clearly offers his bus pass and Mr. Trevino waives it off. Mr. Trevino is heard arguing with the assailant. The assailant goes to a seat and is seen putting his bus pass in his pants pocket, while "jawing" with Mr. Trevino. Mr. Trevino testified that the assailant stood up and approached him in a threatening manner (with his fists balled up). The assailant appears to have his hands in his pockets as he rises from his seat to walk to the front of the bus. Mr. Trevino has stopped the bus and essentially tells the assailant that he is going to have "Metro" take him off the bus. The assailant is standing up front continuing to verbally argue with Mr. Trevino - but does not appear to be upset. Some of the passengers complain that they are going to be late. Indeed one passenger exits the bus in what appears to be frustration that the bus is not moving on. Mr. Trevino continues to tell the assailant he is going to have him taken off the bus. The assailant tells Mr. Trevino that he is going to wait to tell them how Mr. Trevino is not doing his job. Mr. Trevino tells the assailant that he cannot come on the bus cussing. They exchange "f--- you" with each other. The assailant tells Mr. Trevino that he has just 5 blocks to go and that he has a flat tire and cannot ride his bike as suggested by Mr. Trevino. Then the assailant turns and appears to start toward the door. He turns as Mr. Trevino says something else to him, and then the assailant basically tells Mr. Trevino to step outside the bus if he thinks he can "whip him". [sic] Mr. Trevino rises from his seat and shoves the assailant backwards down the stairs. Clearly, Mr. Trevino was the physical aggressor. The assailant, pushes back up the stairs and punches Mr. Trevino three or four times with brutal force. A female passenger attempts to stop the attack by yelling at theassailant to "chill out". [sic] The assailant then leaves the bus. Then Mr. Trevino says something about it being on the tape.
There is no doubt that Mr. Trevino received a beating that would leave him with significant injuries. However, the initial threshold question is whether Mr. Trevino's injuries were proximately caused primarily by his willful intention to injure another. (KRS 342.610(3) [sic]. In Advance Aluminum Co. v. Leslie, 869 S.W.2d 39, 40 (Ky. 1994), the Court explained that "KRS 342.610(3) encompasses situations including horseplay, intoxication, or other employee conduct shown to have been an intentional, deliberate action with a reckless disregard of the consequences either to himself or to another." I find that Mr. Trevino's actions were indeed intentional and deliberate and were designed to inflict harm on this assailant. His ultimate goal may have been to get the assailant off the bus, but his attempt at framing this episode as essentially "self-defense" belies the obvious events leading up to his assault. It was [Trevino's] actions that caused the escalation.
For those reasons, I find that Mr. Trevino's claim for benefits per KRS 342. [sic] et. seq. are barred as a result of Mr. Trevino's intentional, deliberate action with a reckless disregard of the consequences either to himself or to another.
Trevino petitioned the ALJ to reconsider the denial of benefits. The ALJ denied the petition on January 3, 2017, with the following explanation:
[Trevino's] argument on Petition for Reconsideration is that [his] "primary purpose was to protect the safety of the other passengers and remove a perceived threat from the bus." Additionally [Trevino] cites to a case wherein the plaintiff was allowed compensation even though the plaintiff was the aggressor. Hansen v. Frankfort Chair Co., 60 S.W.2d 349 (Ky. 1933)[.]
[Trevino's] argument must fail for two reasons. First, the undersigned found that Mr. Trevino's actions were theproximate cause of the assault. In reviewing the entire video footage, it does not appear the passengers on the bus were threatened by the assailant's behavior - at least until the assailant began his assault on Mr. Trevino. I find there is no error in the factual finding that Mr. Trevino's actions were the proximate cause of the assault.
Secondly, [Trevino] cites a case that pre-dates the statutory defense that is the basis of the undersigned's finding in this case. No doubt there are a [sic] numerous cases that would hold [Trevino's] initial aggression would not bar his compensable benefits under the workers [sic] compensation act. See Hall v. Clark, 360 S.W.2d 140 (Ky. 1962). Indeed, the courts in the past have awarded benefits to the plaintiff when the plaintiff's actions were, without a doubt, the proximate cause of the assault. The courts reasoned in the majority of those cases that the workers [sic] compensation system was a "no fault" system and "but for" the plaintiff being in the work situation and within the scope of his employment that led to the assault, he would not have been injured.
However, all of those cases pre-date the statutory defense outlined in the undersigned's Opinion. Clearly, the legislative action specifically worded in KRS 342.610(3) (as amended in 1972, 1996) must take precedence over the case law that reaches a different conclusion.
On April 7, 2017, in a twenty-five page opinion, the Board affirmed the ALJ's denial of benefits. The Board devoted much of its opinion to quoting Trevino's deposition in which he gave his perspective of the attack in great detail. The Board also quoted liberally from Trevino's testimony during the BRC, and set out both of the ALJ's opinions.
Relying—at least in part—on Hansen (1933), and Hall (1962), both of which preceded legislative amendments to KRS 342.610(3) in 1972 and 1996,Trevino now urges us to reverse the Board, contending "the phrase 'willful intention to injure' . . . was never intended to preclude compensation in cases such as the instant claim." Trevino argues to hold otherwise "is contrary to 80 years of established case law which holds that workplace assaults are compensable." Based on the record, the briefs and the law, we affirm.
To deny benefits under KRS 342.610(3), the ALJ must find the employee "proximately caused [the injury claimed] primarily . . . by his or her willful intention to injure or kill himself, herself, or another." The ALJ so found in the original opinion denying the claim...
