CORRECTED: MARCH 14, 2019 RENDERED: MARCH 14, 2019 TO BE PUBLISHED
2018-SC-000364-WC
DOUG TREVINO APPELLANT
ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2017-CA-000753-WC WORKERS’ COMPENSATION BOARD NO. 13-WC-60923
TRANSIT AUTHORITY OF RIVER CITY; APPELLEES HON. JEANIE OWEN MILLER, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
Douglas Wayne Trevino (Trevino) was injured while working as a bus
driver for Transit Authority of River City (TARC) in Jefferson County, Kentucky.
He initiated a claim for benefits pursuant to Kentucky Revised Statutes (KRS)
Chapter 342, the Workers’ Compensation chapter. After reviewing the relevant
evidence, an Administrative Law Judge (ALJ) denied Trevino’s claim. Trevino
filed a motion for reconsideration, which was also denied. He appealed to the
Workers’ Compensation Board (Board), which unanimously affirmed the ALJ’s determination. Trevino then appealed to the Court of Appeals, which
unanimously affirmed the Board’s decision. He now appeals to this Court.
I. BACKGROUND
While operating a TARC bus on November 9, 2013, Trevino was
assaulted by a passenger resulting in injuries to his face, teeth, as well as
causing post-traumatic stress disorder. Trevino filed his Form 101 on October
30, 2015. TARC responded by denying the claim pursuant to the special
defense provided in KRS 342.610(3).1 At the time Trevino’s claim was filed and
litigated, this provision stated:
[liability 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.
TARC specifically argued that Trevino was the aggressor in the altercation and
that he acted outside of the scope of his employment. TARC bases its position
on the on-board bus surveillance video.2 At the Benefits Review Conference
(BRC), both parties stipulated the video’s authenticity. After reviewing the
video multiple times, as well as considering Trevino’s live testimony, the ALJ
denied Trevino benefits pursuant to KRS 342.610(3). The ALJ specifically
determined the following:
1 KRS 342.610(3) was amended in 2018. As of July 14, 2018, this provision states: “[liability for compensation shall not apply to injury, occupational disease, or death to the employee if the employee willfully intended to injure or kill himself, herself, or another.”
2 This video is not included in the record on appeal.
2 I find the plaintiffs intentional action, leading up to the assault which injured him, was the proximate cause of the assault. In other words, Mr. Tervino’s [sic] actions of standing up and shoving the assailant (backwards down the bus steps) as well as the verbal argument with the assailant were definitely the precipitating factors leading to the violent response.
During his live testimony, Trevino stated that the assailant was unruly from
the moment he entered the bus. According to Trevino, the assailant was angry
that Trevino “passed him up”, presumably at an earlier stop. Trevino further
testified that the assailant was cursing at him and threatening violence and
eventually started punching Trevino.
In affirming the ALJ, the Board cited extensively to Trevino’s deposition
and live testimony wherein he described the assault. Ultimately the Board,
and the Court of Appeals, determined that there was substantial evidence
supporting the ALJ’s determination to deny benefits. In so holding, the
Court of Appeals rejected Trevino’s interpretation and application of KRS
342.610(3). Having reviewed the record and the law, we affirm the Court of
Appeals.
II. STANDARD OF REVIEW
The ALJ has the sole discretion to determine the quality, character,
and substance of the evidence and may reject any testimony and believe
or disbelieve various parts of the evidence regardless of whether it comes
from the same witness or the same party’s total proof. Paramount Foods,
Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). Trevino, as the
claimant, bore the burden of proving the elements of his claim. See
3 Gibbs v. Premier Scale Co./Indiana Scale Co., 50 S.W.3d 754, 763 (Ky. 2001).
On the allegations of error in which Trevino failed to convince the ALJ, Trevino
must establish on appeal that the evidence was so overwhelming as to compel
a favorable finding. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
The question we must answer is whether the ALJ’s findings were “so
unreasonable under the evidence that [they] must be viewed as erroneous as a
matter of law.” KRS 342.285; Ira A. Watson Dep’t. Store v. Hamilton, 34 S.W.3d
48, 52 (Ky. 2000).
III. ANALYSIS
A. THE ALJ DID NOT ERR IN DENYING BENEFITS
Trevino’s sole argument on appeal is that “the phrase ‘willful intent to
injure’ contained in KRS 342.610(3) does not preclude compensation in assault
cases in which the claimant was the aggressor.” In construing statutes, we
must give effect to the intent of the General Assembly. Maynes v.
Commonwealth 361 S.W.3d 922, 924 (Ky. 2012). “We derive that intent, if at
all possible, from the language the General Assembly chose, either as defined
by the General Assembly or as generally understood in the context of the
matter under consideration.” Id. (citing Osborne v. Commonwealth, 185 S.W.3d
645 (Ky. 2006)). Lastly, statutory construction is a matter of law which
requires de novo review by this Court. Hearn v. Commonwealth, 80 S.W.3d
432, 434 (Ky. 2002) (citing Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth of
Kentucky, Transp. Cabinet, 983 S.W.2d 488 (Ky. 1998)).
4 Trevino cites Advanced Aluminum Co. v. Leslie for the proposition
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.” 869 S.W.2d 39, 40 (Ky.
1994) (citing Kentucky Jurisprudence Workers' Compensation., William S.
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CORRECTED: MARCH 14, 2019 RENDERED: MARCH 14, 2019 TO BE PUBLISHED
2018-SC-000364-WC
DOUG TREVINO APPELLANT
ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2017-CA-000753-WC WORKERS’ COMPENSATION BOARD NO. 13-WC-60923
TRANSIT AUTHORITY OF RIVER CITY; APPELLEES HON. JEANIE OWEN MILLER, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
Douglas Wayne Trevino (Trevino) was injured while working as a bus
driver for Transit Authority of River City (TARC) in Jefferson County, Kentucky.
He initiated a claim for benefits pursuant to Kentucky Revised Statutes (KRS)
Chapter 342, the Workers’ Compensation chapter. After reviewing the relevant
evidence, an Administrative Law Judge (ALJ) denied Trevino’s claim. Trevino
filed a motion for reconsideration, which was also denied. He appealed to the
Workers’ Compensation Board (Board), which unanimously affirmed the ALJ’s determination. Trevino then appealed to the Court of Appeals, which
unanimously affirmed the Board’s decision. He now appeals to this Court.
I. BACKGROUND
While operating a TARC bus on November 9, 2013, Trevino was
assaulted by a passenger resulting in injuries to his face, teeth, as well as
causing post-traumatic stress disorder. Trevino filed his Form 101 on October
30, 2015. TARC responded by denying the claim pursuant to the special
defense provided in KRS 342.610(3).1 At the time Trevino’s claim was filed and
litigated, this provision stated:
[liability 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.
TARC specifically argued that Trevino was the aggressor in the altercation and
that he acted outside of the scope of his employment. TARC bases its position
on the on-board bus surveillance video.2 At the Benefits Review Conference
(BRC), both parties stipulated the video’s authenticity. After reviewing the
video multiple times, as well as considering Trevino’s live testimony, the ALJ
denied Trevino benefits pursuant to KRS 342.610(3). The ALJ specifically
determined the following:
1 KRS 342.610(3) was amended in 2018. As of July 14, 2018, this provision states: “[liability for compensation shall not apply to injury, occupational disease, or death to the employee if the employee willfully intended to injure or kill himself, herself, or another.”
2 This video is not included in the record on appeal.
2 I find the plaintiffs intentional action, leading up to the assault which injured him, was the proximate cause of the assault. In other words, Mr. Tervino’s [sic] actions of standing up and shoving the assailant (backwards down the bus steps) as well as the verbal argument with the assailant were definitely the precipitating factors leading to the violent response.
During his live testimony, Trevino stated that the assailant was unruly from
the moment he entered the bus. According to Trevino, the assailant was angry
that Trevino “passed him up”, presumably at an earlier stop. Trevino further
testified that the assailant was cursing at him and threatening violence and
eventually started punching Trevino.
In affirming the ALJ, the Board cited extensively to Trevino’s deposition
and live testimony wherein he described the assault. Ultimately the Board,
and the Court of Appeals, determined that there was substantial evidence
supporting the ALJ’s determination to deny benefits. In so holding, the
Court of Appeals rejected Trevino’s interpretation and application of KRS
342.610(3). Having reviewed the record and the law, we affirm the Court of
Appeals.
II. STANDARD OF REVIEW
The ALJ has the sole discretion to determine the quality, character,
and substance of the evidence and may reject any testimony and believe
or disbelieve various parts of the evidence regardless of whether it comes
from the same witness or the same party’s total proof. Paramount Foods,
Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). Trevino, as the
claimant, bore the burden of proving the elements of his claim. See
3 Gibbs v. Premier Scale Co./Indiana Scale Co., 50 S.W.3d 754, 763 (Ky. 2001).
On the allegations of error in which Trevino failed to convince the ALJ, Trevino
must establish on appeal that the evidence was so overwhelming as to compel
a favorable finding. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
The question we must answer is whether the ALJ’s findings were “so
unreasonable under the evidence that [they] must be viewed as erroneous as a
matter of law.” KRS 342.285; Ira A. Watson Dep’t. Store v. Hamilton, 34 S.W.3d
48, 52 (Ky. 2000).
III. ANALYSIS
A. THE ALJ DID NOT ERR IN DENYING BENEFITS
Trevino’s sole argument on appeal is that “the phrase ‘willful intent to
injure’ contained in KRS 342.610(3) does not preclude compensation in assault
cases in which the claimant was the aggressor.” In construing statutes, we
must give effect to the intent of the General Assembly. Maynes v.
Commonwealth 361 S.W.3d 922, 924 (Ky. 2012). “We derive that intent, if at
all possible, from the language the General Assembly chose, either as defined
by the General Assembly or as generally understood in the context of the
matter under consideration.” Id. (citing Osborne v. Commonwealth, 185 S.W.3d
645 (Ky. 2006)). Lastly, statutory construction is a matter of law which
requires de novo review by this Court. Hearn v. Commonwealth, 80 S.W.3d
432, 434 (Ky. 2002) (citing Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth of
Kentucky, Transp. Cabinet, 983 S.W.2d 488 (Ky. 1998)).
4 Trevino cites Advanced Aluminum Co. v. Leslie for the proposition
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.” 869 S.W.2d 39, 40 (Ky.
1994) (citing Kentucky Jurisprudence Workers' Compensation., William S.
Haynes, § 11:2 through § 11:5). Without the benefit of explanation or
elaboration, Trevino also claims that “case law establishes that
workplace assaults are compensable where they are traceable to an
incident of the employment, even when the employee is the aggressor.”
Hansen v. Frankfort Chair Co., 60 S.W.2d 349 (Ky. 1933) and Hall v.
Clark, 360 S.W.2d 140 (Ky. 1962).
We note that both Hansen and Hall were published prior to the
enactment of KRS 342.610(3) in 1972. And as for Leslie, that case does
not provide an exhaustive list of conduct that constitutes “willful
intention” under KRS 342.610(3), nor does it narrow such conduct to
only the most outrageous acts of violence. In fact, the ALJ appropriately
relied on Leslie when concluding that “I find that Mr. Trevino’s actions
were indeed intentional and deliberate and were designed to inflict harm
on this assailant.” As such, the ALJ expressly rejected Trevino’s self-
defense claim and instead determined that “it was [Trevino’s] actions that
caused the escalation.”
5 We decline to adopt Trevino’s strained interpretation of KRS 342.610(3).
The legislature’s intent here is clear: if a claimant’s aggressive or inflammatory
behavior proximately causes violence, thus resulting in injury to the claimant,
the claimant is not entitled to compensation under Kentucky’s Workers’
Compensation laws. See Livingood v. Transfreight, LLC, 467 S.W.3d 249, 258
(Ky. 2015) (“KRS Chapter 342 evinces a legislative intent that an employee
should not benefit from his own wrongdoing.”). To be clear, there may be other
but-for causes at issue. However, the key question here is whether the
claimant’s willful conduct was the proximate cause of his injury.3
As previously noted, the ALJ’s conclusion was based on her review of the
bus surveillance video as well as Trevino’s testimony. She clearly did not find
Trevino’s version of the events credible. This was echoed by the Board in its
opinion affirming the ALJ’s denial of benefits. It is well-established that “[t]he
reviewing court must not substitute its judgment for that of the finder of fact.”
Howard D. Sturgill & Sons v. Fairchild, 647 S.W.2d 796, 798 (Ky. 1983). We
conclude that the ALJ’s decision denying Trevino benefits pursuant to KRS
342.610(3) was supported by substantial evidence.
3 We note that the current version of KRS 342.610(3) omits the requirement that the employee’s injury “was proximately caused primarily by” the claimant’s willful conduct. We need not address the amended provision here, nor do we intend to provide an exclusive analysis of what specific types of conduct violate KRS 342.610(3) under either its current or former version.
6 IV. CONCLUSION
For the foregoing reasons, the opinion of the Court of Appeals is affirmed.
Minton, C.J.; Hughes, Keller, Lambert, VanMeter and Wright, JJ., sitting.
All concur.
COUNSEL FOR APPELLANT:
Phillipe W. Rich
COUNSEL FOR APPELLEE, TRANSIT AUTHORITY OF RIVER CITY:
Michelle Turner Derek Ryon Miles Turner Real & Button PLLC
COUNSEL FOR APPELLEE, JEANIE OWEN MILLER, ADMINISTRATIVE LAW JUDGE:
Jeanie Owen Miller
COUNSEL FOR APPELLEE, WORKERS’ COMPENSATION BOARD:
Dwight Taylor Lovan Executive Director - Department of Workers’ Claims
7 2018-SC-000364-WC
ON APPEAL FROM COURT OF APPEALS V. NO. 2017-CA-000753-WC WORKERS’ COMPENSATION BOARD NO. 13-WC-60923
TRANSIT AUTHORITY OF RIVER CITY; APPELLEES HON. JEANIE OWEN MILLER, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
ORDER
On the Court’s own Motion, this Court hereby corrects the Opinion of the
Court by Justice Keller Affirming, rendered March 14, 2019 in the above-styled
case, to show that Counsel for Appellee, Transit Authority of River City, is
Michelle Turner, Turner Keal 8b Button PLLC. Substitution of a new Opinion of
the Court by Justice Keller Affirming is attached hereto. Said correction does not affect the holding and is made only to reflect the proper name of counsel for
the Appellee on p. 7 of the Opinion.
ENTERED: March .2019.