U.S. Bank Home Mortg. v. Schrecker

• Decision Date: 18 December 2014
• Docket Number: 2012–SC–000665–WC
• Citation: 455 S.W.3d 382
• Parties: U.S. Bank Home Mortgage, Appellant v. Andrea Schrecker; Honorable J. Landon Overfield, Administrative Law Judge; and Workers' Compensation Board, Appellees
• Court: United States State Supreme Court — District of Kentucky

455 S.W.3d 382

U.S. Bank Home Mortgage, Appellant

v.Andrea Schrecker; Honorable J. Landon Overfield, Administrative Law Judge; and Workers' Compensation Board, Appellees

2012–SC–000665–WC

Supreme Court of Kentucky.

RENDERED: DECEMBER 18, 2014

Rehearing Denied April 2, 2015

COUNSEL FOR APPELLANT: James Gordon Fogle, Louisville, Stephanie Dawn Ross, Lexington, Fogle Keller Purdy, PLLC, Sherri Lynn Keller, Ferreri & Fogle, PLLC

COUNSEL FOR APPELLEE: Thomas M. Rhoads, Rhoads & Rhoads, P.S.C., Madisonville

Opinion

OPINION OF THE COURT BY JUSTICE KELLER

The Administrative Law Judge (the ALJ) found that Andrea Schrecker's (Schrecker) injury is work-related and compensable. The Workers' Compensation Board (the Board) and the Court of Appeals affirmed. Having reviewed the record and the arguments of the parties, we reverse.

I. FACTS.

Schrecker worked in the payment processing department at U.S. Bank Home Mortgage (U.S. Bank). The U.S. Bank facility is located on Frederica Street in Owensboro, Kentucky. Frederica Street is a busy four-lane road with a traffic island dividing the northbound and southbound lanes. As a full-time U.S. Bank employee, Schrecker was entitled to a one hour unpaid lunch-break and two fifteen-minute paid breaks per day. US Bank did not have an onsite cafeteria, but it did have a lunchroom and vending machine that were available for employees' use. During their breaks, employees were permitted to leave the premises, and they often did, going to fast food restaurants that are across Frederica Street from U.S. Bank.

On December 31, 2007, one of Schrecker's co-employees was absent; therefore, Schrecker decided to work through her lunch-break. At approximately 1:30 p.m., Schrecker signed out for her paid afternoon break, with the intention of getting something to eat from the Taco Bell across Frederica Street from U.S. Bank and returning to work. Based on Schrecker's testimony and the police report that was entered into evidence, Schrecker was crossing Frederica Street at a point between two intersections where there was no cross-walk. The driver in the outside northbound lane stopped and waved for Schrecker to cross. The driver in the inside northbound lane did not see Schrecker and, when she crossed into that lane, struck her. Schrecker was treated for her injuries at the scene and returned to work. She continued to work at U.S. Bank until June 2008, when she was terminated.¹

The dissent emphasizes several times that Schrecker was under “employer-generated time pressure” because she had skipped her lunch break and had “to quickly grab food from a fast food restaurant across the street.” While it is true that Schrecker did not take her lunch break when she usually did, there is nothing in the record indicating that she could not have taken her lunch break at 1:30 p.m. In fact, the evidence established that employees had no set lunch time and that a supervisor, Jennifer Roberts, had previously advised Schrecker that she was always entitled to a lunch break. Furthermore, Schrecker testified that three to five days a week she took the three minute trip across the street to get something to eat during her afternoon break. Therefore, the dissent's emphasis on an “employer-generated time pressure” is not supported by the record.

Following the injury, Schrecker complained of pain in her mid and low back, chest, right shoulder, left knee, and left calf. She also complained of headaches, depression, memory loss, difficulty concentrating, and sleep disturbance related to a traumatic brain injury suffered when her head struck the car's windshield. As a result of that injury, Schrecker has had difficulty working and functioning as she did in the past. The parties filed a significant amount of evidence regarding Schrecker's mental and physical conditions. We do not summarize that evidence because our holding only involves whether Schrecker's injury occurred in the course and scope of her employment.

Based on the evidence and our Opinion in Meredith v. Jefferson County Property Valuation Administrator, 19 S.W.3d 106 (Ky.2000), the ALJ concluded that Schrecker's injury occurred while she was within the course and scope of her employment. He then awarded Schrecker medical expense benefits and income benefits based on a fifteen percent impairment rating. US Bank filed a petition for reconsideration, which the ALJ summarily denied.

US Bank then appealed to the Board. The Board noted that the only issue before it was whether Schrecker's injury occurred within the course and scope of her employment. It then reviewed passages from Larson's Workers' Compensation Law (2011), 9A Couch on Insurance 3d (2011), and 82 Am.Jur.2d Workers' Compensation regarding the “personal comfort doctrine.” Based on its review, the Board concluded that the ALJ did not err in finding that Schrecker's injury occurred in the course and scope of her employment.

US Bank appealed to the Court of Appeals, which affirmed the Board. The Court of Appeals, also citing to Larson's and Couch, affirmed the Board, noting that Schrecker was injured while on a paid break seeking refreshment and that U.S. Bank condoned employees crossing the street during such breaks. US Bank appealed from that opinion, again arguing that Schrecker's injury occurred outside the course and scope of her employment.

II. STANDARD OF REVIEW.

When reviewing an ALJ's decision, this Court will reverse only if the ALJ overlooked or misconstrued controlling law or so flagrantly erred in evaluating the evidence that it has caused gross injustice. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687–88 (Ky.1992). On appellate review, the ALJ's findings of fact are entitled to considerable deference and will not be set aside unless the evidence compels a contrary finding. Bullock v. Peabody Coal Co., 882 S.W.2d 676 (Ky.1994). However, we review the ALJ's application of the law de novo. See Finley v. DBM Techs., 217 S.W.3d 261, 264 (Ky.App.2007).

III. ANALYSIS.

As previously indicated, the issue herein is whether Schrecker was in the course and scope of her employment when injured. US Bank argues that Schrecker was not because: (1) she was not on U.S. Banks operating premises when the injury occurred; (2) she had temporarily abandoned her job; and (3) she lost any protection she may have had by virtue of the personal comfort doctrine when she took an unreasonable route to get from U.S. Bank to Taco Bell. Schrecker argues that she was within the course and scope of her employment because: (1) she was on a paid break; (2) U.S. Bank benefitted generally from the increased employee morale the breaks provided and specifically benefitted from Schrecker working through her lunch break that day; (3) U.S. Bank permitted employees to leave the premises and to cross Frederica Street to seek refreshments on their breaks; (4) employees regularly crossed the street seeking refreshments during their breaks; and (5) there is no evidence that Schrecker had any motive other than personal comfort for crossing the street.

In support of its argument, U.S. Bank cites to Baskin v. Community Towel Service, 466 S.W.2d 456 (Ky.1971). In Baskin, Mr. Baskin and a co-employee were injured while returning to work after taking an unpaid lunch break. We held that their claims were not compensable because, as employees with a fixed time and place of work, they were outside the course of employment while off the Community Towel Service's premises during lunch. Baskin is distinguishable because Shrecker was on a paid, not an unpaid break. Furthermore, in Meredith v. Jefferson County Property Valuation Administrator, 19 S.W.3d 106 (Ky.2000) we recognized that “the doctrine of comfort and convenience” could extend beyond the boundaries of an employer's premises. Id. at 108.

In Meredith, Mr. Meredith worked as a field representative for the Kentucky Revenue Cabinet. His job required him to travel to local banks to inventory the contents of safety deposit boxes for estate tax purposes. On the date of his injury, Mr. Meredith went to his office, picked up his appointment schedule, and drove to his first appointment. He arrived early and, because he could not get into the bank, he went to a nearby McDonald's. While walking with his tray from the counter to a table, Mr. Meredith fell and suffered a serious back injury. We note that there is nothing in either our opinion or the Court of Appeals's opinion in Meredith which indicates why Mr. Meredith fell or if Mr. Meredith encountered any abnormally hazardous conditions at McDonald's.

In finding Mr. Meredith's claim compensable, we noted that injuries “sustained during a personal mission ... [generally occur] outside the course of employment; however, under certain circumstances, an injury resulting from acts by a worker which minister to his personal comfort while at work may be considered related to work pursuant to the doctrine of comfort and convenience.” Id. at 108. We noted that a number of factors must be considered in applying that doctrine, including: whether an employee's abandonment of his job was intended to be only temporary; whether an employee's departure from his job was “so unreasonable that it cannot be considered an incident of the employment;” whether the nature of the job includes periods of “enforced hiatus” such as waiting for appointments; and whether the employer prohibits the employee from taking a coffee break during those periods. Taking those factors into consideration, we held that Mr. Meredith was within the course and scope of his employment when he was injured. Id. at 108–10. While instructive, Meredith is not dispositive because Mr. Meredith, unlike Schrecker, did not have a fixed place of employment.

As the Board stated, there is no case law directly on point in Kentucky. Therefore, like the Board and the Court of Appeals, we turn to other sources for guidance. With regard to employees with fixed places of employment, Professor Larson states as follows:

Now that the coffee

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