IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JUNE 14, 2018 NOT TO BE PUBLISHED
Supreme ©uurf of ^Reufurk^ 2017-SC-000620-WC OATE^/e^ be FIRST CLASS SERVICES, INC. APPELLANT
ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2016-CA-001367 WORKERS’COMPENSATION BOARD NO. 12-WC-60799
GURAL W. HENSLEY; APPELLEES HON. OTTO D. WOLFF, IV, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Factual and Procedural Background
Appellee, Gural Hensley, was an over-the-road truck driver employed by
Appellant, First Class Services, Inc., a trucking company whose employees
haul trailers of hazmat, dry bulk, and liquid tank loads interstate. To ensure
product quality, tank trailers hauled by First Class employees must be
thoroughly cleaned after each delivery prior to the next product being loaded.
After a delivery, Hensley routinely brought his truck with the dirty trailer tank
to Derby City Tank Wash in Louisville, where he left the tank to be cleaned
before returning to Frankfort for another load. Because Hensley lived 30 to 40 miles away from the First Class terminal
in Lewisport, Kentucky, he was permitted to keep his truck and trailer at his
residence in English, Indiana. Hensley began and ended his routes from home.
On November 14, 2012, Hensley informed James Craig, his dispatcher,
and Randy Cutrell, Vice-President of First Class, that he was feeling ill during a
delivery route. On November 15, Hensley brought his dirty trailer tank to
Derby City Tank Wash after his delivery. He was scheduled to take the clean
tank back to Frankfort for a new load, then on to Oklahoma.
However, due to his illness, First Class determined that Hensley should
not finish his dispatch. Instead, another driver was sent with a different truck
to pick up the clean tank and take it to Frankfort for the new load. Hensley
was sent home in his truck with no trailer attached, which is known in the
industry as “bob-tailing.”
While “bob-tailing” home, Hensley’s truck went off the road in Crawford
County, Indiana and struck a tree. Hensley sustained multiple injuries and
filed a workers’ compensation claim on February 8, 2013.
Initially, the ALJ found in Hensley’s favor, finding, inter alia, that
Hensley’s travel to store his truck at home qualified for the “service or benefit
to the employer” exception. Hensley put less mileage on the truck and was
able to leave for dispatches earlier without driving the extra 30 to 40 miles to-
and-from the terminal in Lewisport. Because keeping the truck at his
residence was of “some benefit” to First Class, Hensley’s travel to and from
home with his truck was within the scope of his employment. However, the
2 ALJ did not find that Hensley qualified for the “traveling employee” exception.
Both parties appealed the ALJ’s decision.
On appeal, the Board affirmed the ALJ in part and reversed in part. The
Board found that, in addition to qualifying for the “service or benefit to
employer” exception, Hensley’s accident and consequential injuries were work-
related under the “traveling employee” exception. The Board stated that, as in
Gains Gentry Thoroughbreds/Fayette Farms v. Mandujano, 366 S.W.3d 456,
462-63 (Ky. 2012), Hensley’s injuries occurred during the “necessary and
inevitable” act of returning from the journey he undertook on behalf of his
employer. First Class appealed to the Kentucky Court of Appeals pursuant to
Section 111 of the Kentucky Constitution and KRS 342.290, which affirmed
the Board’s decision.
Analysis
Appellate review of Board rulings strictly concerns whether the Board’s
Final Order was: (1) based on a correct interpretation of the law, and (2)
reasonable under the evidence. Fortney v. Airtran Airways, Inc., 319 S.W.3d
325, 328 (Ky. 2010). Appellate courts will only disturb a Board decision that is
reasonable under the evidence “to address new or novel questions of statutory
construction, or to reconsider precedent when such appears necessary, or to
review a question of constitutional magnitude.” W. Baptist Hosp. v. Kelly, 827
S.W.2d 685, 688 (Ky. 1992).
“When the decision of the fact-finder favors the person with the burden
of proof, his only burden on appeal is to show that there was some evidence of
3 substance to support the finding, meaning evidence which would permit a fact
finder to reasonably find as it did.” Special Fund v. Francis, 708 S.W.2d 641,
643 (Ky. 1986) (emphasis added). “In order to reverse the finding of the Board,
the claimant, who has the burden of proof, must present evidence that is so
overwhelming as to compel a finding in his favor.” Howard D. Sturgill & Sons v.
Fairchild, 647 S.W.2d 796, 798 (Ky. 1983) (citing Old Republic Ins. Co. v.
McCarty, 599 S.W.2d 163 (Ky. 1980)).
A compensable “injury” under the Workers’ Compensation Act must have
resulted from a work-related occurrence “arising out of and in the course of
employment . . . .” KRS 342.0011(2). The going and coming rule states that,
“[w]here an employee is traveling between his home and the place of
employment and is not performing some special service or benefit for his
employer, his injuries are not sustained in the course of his employment.”
Fairchild, 647 S.W.2d at 797 (citing Brown v. Owsley, 564 S.W.2d 843 (Ky.
1978)). “The rationale supporting the rule is that perils encountered during
travel to and from work are no different from those encountered by the general
public and, thus, are neither occupational nor industrial hazards for which the
employer is liable.” Fortney, 319 S.W.3d at 328 (internal citations omitted).
However, this Court has addressed several exceptions to the going and
coming rule, including the “service or benefit to the employer” exception, see id.
at 329-30, and the “traveling employee” doctrine. See Mandujano, 366 S.W.3d
at 462. Although only one exception to the going and coming rule is needed,
the following analysis demonstrates that both are satisfied in the case at bar.
4 A. Traveling Employee Exception
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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JUNE 14, 2018 NOT TO BE PUBLISHED
Supreme ©uurf of ^Reufurk^ 2017-SC-000620-WC OATE^/e^ be FIRST CLASS SERVICES, INC. APPELLANT
ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2016-CA-001367 WORKERS’COMPENSATION BOARD NO. 12-WC-60799
GURAL W. HENSLEY; APPELLEES HON. OTTO D. WOLFF, IV, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Factual and Procedural Background
Appellee, Gural Hensley, was an over-the-road truck driver employed by
Appellant, First Class Services, Inc., a trucking company whose employees
haul trailers of hazmat, dry bulk, and liquid tank loads interstate. To ensure
product quality, tank trailers hauled by First Class employees must be
thoroughly cleaned after each delivery prior to the next product being loaded.
After a delivery, Hensley routinely brought his truck with the dirty trailer tank
to Derby City Tank Wash in Louisville, where he left the tank to be cleaned
before returning to Frankfort for another load. Because Hensley lived 30 to 40 miles away from the First Class terminal
in Lewisport, Kentucky, he was permitted to keep his truck and trailer at his
residence in English, Indiana. Hensley began and ended his routes from home.
On November 14, 2012, Hensley informed James Craig, his dispatcher,
and Randy Cutrell, Vice-President of First Class, that he was feeling ill during a
delivery route. On November 15, Hensley brought his dirty trailer tank to
Derby City Tank Wash after his delivery. He was scheduled to take the clean
tank back to Frankfort for a new load, then on to Oklahoma.
However, due to his illness, First Class determined that Hensley should
not finish his dispatch. Instead, another driver was sent with a different truck
to pick up the clean tank and take it to Frankfort for the new load. Hensley
was sent home in his truck with no trailer attached, which is known in the
industry as “bob-tailing.”
While “bob-tailing” home, Hensley’s truck went off the road in Crawford
County, Indiana and struck a tree. Hensley sustained multiple injuries and
filed a workers’ compensation claim on February 8, 2013.
Initially, the ALJ found in Hensley’s favor, finding, inter alia, that
Hensley’s travel to store his truck at home qualified for the “service or benefit
to the employer” exception. Hensley put less mileage on the truck and was
able to leave for dispatches earlier without driving the extra 30 to 40 miles to-
and-from the terminal in Lewisport. Because keeping the truck at his
residence was of “some benefit” to First Class, Hensley’s travel to and from
home with his truck was within the scope of his employment. However, the
2 ALJ did not find that Hensley qualified for the “traveling employee” exception.
Both parties appealed the ALJ’s decision.
On appeal, the Board affirmed the ALJ in part and reversed in part. The
Board found that, in addition to qualifying for the “service or benefit to
employer” exception, Hensley’s accident and consequential injuries were work-
related under the “traveling employee” exception. The Board stated that, as in
Gains Gentry Thoroughbreds/Fayette Farms v. Mandujano, 366 S.W.3d 456,
462-63 (Ky. 2012), Hensley’s injuries occurred during the “necessary and
inevitable” act of returning from the journey he undertook on behalf of his
employer. First Class appealed to the Kentucky Court of Appeals pursuant to
Section 111 of the Kentucky Constitution and KRS 342.290, which affirmed
the Board’s decision.
Analysis
Appellate review of Board rulings strictly concerns whether the Board’s
Final Order was: (1) based on a correct interpretation of the law, and (2)
reasonable under the evidence. Fortney v. Airtran Airways, Inc., 319 S.W.3d
325, 328 (Ky. 2010). Appellate courts will only disturb a Board decision that is
reasonable under the evidence “to address new or novel questions of statutory
construction, or to reconsider precedent when such appears necessary, or to
review a question of constitutional magnitude.” W. Baptist Hosp. v. Kelly, 827
S.W.2d 685, 688 (Ky. 1992).
“When the decision of the fact-finder favors the person with the burden
of proof, his only burden on appeal is to show that there was some evidence of
3 substance to support the finding, meaning evidence which would permit a fact
finder to reasonably find as it did.” Special Fund v. Francis, 708 S.W.2d 641,
643 (Ky. 1986) (emphasis added). “In order to reverse the finding of the Board,
the claimant, who has the burden of proof, must present evidence that is so
overwhelming as to compel a finding in his favor.” Howard D. Sturgill & Sons v.
Fairchild, 647 S.W.2d 796, 798 (Ky. 1983) (citing Old Republic Ins. Co. v.
McCarty, 599 S.W.2d 163 (Ky. 1980)).
A compensable “injury” under the Workers’ Compensation Act must have
resulted from a work-related occurrence “arising out of and in the course of
employment . . . .” KRS 342.0011(2). The going and coming rule states that,
“[w]here an employee is traveling between his home and the place of
employment and is not performing some special service or benefit for his
employer, his injuries are not sustained in the course of his employment.”
Fairchild, 647 S.W.2d at 797 (citing Brown v. Owsley, 564 S.W.2d 843 (Ky.
1978)). “The rationale supporting the rule is that perils encountered during
travel to and from work are no different from those encountered by the general
public and, thus, are neither occupational nor industrial hazards for which the
employer is liable.” Fortney, 319 S.W.3d at 328 (internal citations omitted).
However, this Court has addressed several exceptions to the going and
coming rule, including the “service or benefit to the employer” exception, see id.
at 329-30, and the “traveling employee” doctrine. See Mandujano, 366 S.W.3d
at 462. Although only one exception to the going and coming rule is needed,
the following analysis demonstrates that both are satisfied in the case at bar.
4 A. Traveling Employee Exception
“[T]he traveling employee doctrine considers an injury that occurs while
the employee is in travel status to be work-related unless the worker was
engaged in a significant departure from the purpose of the trip.” Id. Travel
status applies to “[ejmployees whose work entails travel away from the
employer’s premises.” Black v. Tichenor, 396 S.W.2d 794, 797 (Ky. 1965).
Accordingly, traveling employees perform within the scope of their employment
“continuously during the trip, except when a distinct departure on a personal
errand is shown.” Id.
Here, the Board held that Hensley’s return trip to his residence was a
“necessary and inevitable” act of completing his travel, undertaken as a First
Class employee. The Board found that “[s]ometimes [Hensley] brought a trailer
home with him, and sometimes he did not.” Further, the Board stated that “a
mere deviation from his usual employment due to an illness [does] not negate
the fact Hensley was still working until he returned home.” So, it was not a
distinct departure from his duties to be driving the truck home without a
trailer. Thus, the Board concluded that Hensley’s accident fell within the
traveling employee exception.
B. Some Service or Benefit to the Employer Exception
“The rule excluding injuries that occur off the employer's premises,
during travel between work and home, does not apply if the journey is part of
the service for which the worker is employed or otherwise benefits the
employer.” Fortney, 319 S.W.3d at 329. Hence, driving and other forms of
5 movement required to complete an employee’s duties are covered if they
provide some benefit or service to the employer.
Here, the ALJ’s recommendation and the Board’s final order both
described Hensley’s storage of his truck and trailer at his residence as being of
“some benefit” to First Class. Among the benefits listed were that less mileage
was put on the truck and it allowed Hensley to spend more time on the road.
C. Applying the Exceptions
Substantial evidence supports the Board’s findings that Hensley’s
storage of the company truck at his home was of benefit to First Class, and
that Hensley was a traveling employee. Therefore, the reviewing court was
bound by the record. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418,
419 (Ky. 1985). Accordingly, the Court of Appeals properly deferred to the
Board’s findings, which were based upon evidence of substance, as to the
applicability of those two exceptions. Finding no legal error, the Court of
Appeals appropriately affirmed the Board’s Final Order.
Conclusion
For the reasons stated herein, we hereby affirm the decision of the Court
of Appeals.
All sitting. All concur.
6 COUNSEL FOR APPELLANT:
Richard Christion Hutson WHITLOW, ROBERTS, HOUSTON 85 STRAUB, PLLC
COUNSEL FOR APPELLEE:
Paul Allen Brizendine BRIZENDINE LAW OFFICE, LLC