OPINION
COMBS, JUDGE:
Hall Contracting of Kentucky, Inc., petitions for review, of an opinion of the Workers’ Compensation Board which reversed the order of the Administrative Law Judge (ALJ). Following an evidentiary hearing, the ALJ concluded that the claim of James Huff against Hall Contracting .was not compensable since Huff was engaging in horseplay and thus he was acting outside the scope of his employment when he was injured. On appeal, the Board determined that, .the ALJ had erred by concluding that Huffs injury was the result of horseplay. The Board remanded for entry of,a decision that would resolve all of the remaining contested issues. Finding- no reversible error, we affirm.
Huff began- working' as a heavy equipment operator for Hall Contracting in 2007. On the morning of August 26, 2011, Huff and his coworker, Keith White, were assigned to work at an Qwensboro construction site. They were assigned to relocate utility poles that had been laid upon the ground. White was acting as a “spotter” as he walked next to the forklift that Huff was operating. While searching for dunnage boards to stack the poles on, White found an object that he could not identify near some pallets on the ground. The object was round and dark in color. It was the size of a tennis ball, and it had a deep crevice.
In his deposition, Huff testified that White handed him the object, and he looked it over for any identifying markings. As Huff reached to retrieve a cigarette lighter from his pocket, White moved away in anticipation of an explosion. Huff ignited a flame, and the object immediately exploded in his hand. Huff was severely injured and was transported by helicopter to Jewish Hospital in Louisville. Because of his alleged violation of the company’s safety policy, Huff was terminated by Hall Contracting.
In September 2011, Huff was advised that his claim for workers’ compensation benefits had been denied. He was released to full duty work on May 23, 2012, and he filed an application for resolution of his claim on August 19,2013.
Following an evidentiary hearing, the ALJ concluded that Huffs claim was not compensable. He believed that Huffs descriptions of the conditions and events preceding the explosion were not credible and that he’had failed to sustain his burden of proving the work-related nature óf his injury. The "ALJ held that Huff had ventured outside the course and scope of his employment -when he ignited his lighter “to amuse” himself and White with what he believed was a smoke bomb. The ALJ believed-that Huff was engaged in “horseplay” at the time of his injury, and he ordered the claim dismissed.
Huff filed a petition for reconsideration contending that the ALJ had erred by concluding that he was engaged in- horse[813]*813play at the time of the explosion. On the contrary, Huff argued that he was acting wholly within the course and scope of his employment when he tried to identify an object brought to his attention by a coworker by illuminating it with his cigarette lighter. Nonetheless, the ALJ denied the petition.
On appeal, a majority of the Workers’ Compensation Board panel concluded as a matter of law that Huff had not been engaged in horseplay at the time of his injury because he had not ventured from the course and scope of his employment when he tried to identify the object collected by White. The majority observed as follows:
The testimony of White and Huff establishes] Huff was not attempting or planning to engage in any type of mischief or playful conduct when he ignited his lighter causing the spherical object to explode. Clearly, Huff exercised poor judgment after receiving the spherical object. However, the testimony of White and Huff establishes] they had a duty to determine whether the object was dangerous and if so, to ensure it did not impose [sic] .a threat to anyone’s safety. As noted by Huff, he and White could not discard the item as they must deal ivith anything they found.
•⅜ ⅜ ⅜ ⅜
The fact Huff held the object in his hand when he ignited his lighter without the intent to engage in a subsequent inappropriate act/ does not constitute horseplay. The evidence does not establish Huff intended -to engage in a sportive or whimsical act which would- affect White or any portion of the job site. [Emphasis added.] .
The applicable standard of review by the Board differs depending upon whether questions of fact or law are presented for its consideration. As the claimant, Huff -had the burden of proving each of the' essential elements of his claim. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App. 1984). As the fact-finder, the ALJ had the latitude and the prerogative to judge the credibility of the testimony and to choose which evidence to believe. Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977). However, the ALJ’s' application of the law to the facts as he finds them is subject to' the Board’s plenary review. A & A Mechanical, Inc., v. Thermal Equipment Sales,' Inc., 998 S.W.2d 505 (Ky.App. 1999). Upon our review of the Board’s decision, we may reverse only where the Board has overlooked or misconstrued controlling law or has so flagrantly erred in evaluating the evidence that it has caused gross injustice. Western Baptist Hosp. v. Kelly, 827 S.W.2d 685 (Ky. 1992).
Hall Contracting contends that the Board erred as a matter of law by substituting its judgment for that of the ALJ. It contends that the evidence indicates either that Huff was aware of the nature of the object and intended to ignite it for sport or that Huff acted with an unreasonable lack of concern for his own safety by holding his cigarette lighter next to it. Hall Contracting describes these actions by a heavy equipment operator as a “purposeful excursion and extended deviation from the course and scope of his employment.” On the other hand, Huff contends that the evidence, shows that- igniting his lighter was merely a spontaneous action in response to being questioned about a foreign object found on the construction site. He denies that his- inspection of the object was in any way disconnected from his work. On the contrary, he believes that his job description mandated his close scrutiny of any such object. ' >
[814]*814Under the circumstances of this case, specifically including the facts as found by the ALJ, we conclude that the Board was warranted in concluding that the incident which caused Huffs injuries did not constitute horseplay. Horseplay is defined as an action independent of and unconnected with work. See. Hayes Freight Lines v. Bums, 290 S.W.2d 836 (Ky. 1966). There is no substantial dispute with respect to how the incident occurred in this case. And the question of whether those facts show that Huff was involved in horseplay is one of law. In Hayes Freight Lines,
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
COMBS, JUDGE:
Hall Contracting of Kentucky, Inc., petitions for review, of an opinion of the Workers’ Compensation Board which reversed the order of the Administrative Law Judge (ALJ). Following an evidentiary hearing, the ALJ concluded that the claim of James Huff against Hall Contracting .was not compensable since Huff was engaging in horseplay and thus he was acting outside the scope of his employment when he was injured. On appeal, the Board determined that, .the ALJ had erred by concluding that Huffs injury was the result of horseplay. The Board remanded for entry of,a decision that would resolve all of the remaining contested issues. Finding- no reversible error, we affirm.
Huff began- working' as a heavy equipment operator for Hall Contracting in 2007. On the morning of August 26, 2011, Huff and his coworker, Keith White, were assigned to work at an Qwensboro construction site. They were assigned to relocate utility poles that had been laid upon the ground. White was acting as a “spotter” as he walked next to the forklift that Huff was operating. While searching for dunnage boards to stack the poles on, White found an object that he could not identify near some pallets on the ground. The object was round and dark in color. It was the size of a tennis ball, and it had a deep crevice.
In his deposition, Huff testified that White handed him the object, and he looked it over for any identifying markings. As Huff reached to retrieve a cigarette lighter from his pocket, White moved away in anticipation of an explosion. Huff ignited a flame, and the object immediately exploded in his hand. Huff was severely injured and was transported by helicopter to Jewish Hospital in Louisville. Because of his alleged violation of the company’s safety policy, Huff was terminated by Hall Contracting.
In September 2011, Huff was advised that his claim for workers’ compensation benefits had been denied. He was released to full duty work on May 23, 2012, and he filed an application for resolution of his claim on August 19,2013.
Following an evidentiary hearing, the ALJ concluded that Huffs claim was not compensable. He believed that Huffs descriptions of the conditions and events preceding the explosion were not credible and that he’had failed to sustain his burden of proving the work-related nature óf his injury. The "ALJ held that Huff had ventured outside the course and scope of his employment -when he ignited his lighter “to amuse” himself and White with what he believed was a smoke bomb. The ALJ believed-that Huff was engaged in “horseplay” at the time of his injury, and he ordered the claim dismissed.
Huff filed a petition for reconsideration contending that the ALJ had erred by concluding that he was engaged in- horse[813]*813play at the time of the explosion. On the contrary, Huff argued that he was acting wholly within the course and scope of his employment when he tried to identify an object brought to his attention by a coworker by illuminating it with his cigarette lighter. Nonetheless, the ALJ denied the petition.
On appeal, a majority of the Workers’ Compensation Board panel concluded as a matter of law that Huff had not been engaged in horseplay at the time of his injury because he had not ventured from the course and scope of his employment when he tried to identify the object collected by White. The majority observed as follows:
The testimony of White and Huff establishes] Huff was not attempting or planning to engage in any type of mischief or playful conduct when he ignited his lighter causing the spherical object to explode. Clearly, Huff exercised poor judgment after receiving the spherical object. However, the testimony of White and Huff establishes] they had a duty to determine whether the object was dangerous and if so, to ensure it did not impose [sic] .a threat to anyone’s safety. As noted by Huff, he and White could not discard the item as they must deal ivith anything they found.
•⅜ ⅜ ⅜ ⅜
The fact Huff held the object in his hand when he ignited his lighter without the intent to engage in a subsequent inappropriate act/ does not constitute horseplay. The evidence does not establish Huff intended -to engage in a sportive or whimsical act which would- affect White or any portion of the job site. [Emphasis added.] .
The applicable standard of review by the Board differs depending upon whether questions of fact or law are presented for its consideration. As the claimant, Huff -had the burden of proving each of the' essential elements of his claim. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App. 1984). As the fact-finder, the ALJ had the latitude and the prerogative to judge the credibility of the testimony and to choose which evidence to believe. Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977). However, the ALJ’s' application of the law to the facts as he finds them is subject to' the Board’s plenary review. A & A Mechanical, Inc., v. Thermal Equipment Sales,' Inc., 998 S.W.2d 505 (Ky.App. 1999). Upon our review of the Board’s decision, we may reverse only where the Board has overlooked or misconstrued controlling law or has so flagrantly erred in evaluating the evidence that it has caused gross injustice. Western Baptist Hosp. v. Kelly, 827 S.W.2d 685 (Ky. 1992).
Hall Contracting contends that the Board erred as a matter of law by substituting its judgment for that of the ALJ. It contends that the evidence indicates either that Huff was aware of the nature of the object and intended to ignite it for sport or that Huff acted with an unreasonable lack of concern for his own safety by holding his cigarette lighter next to it. Hall Contracting describes these actions by a heavy equipment operator as a “purposeful excursion and extended deviation from the course and scope of his employment.” On the other hand, Huff contends that the evidence, shows that- igniting his lighter was merely a spontaneous action in response to being questioned about a foreign object found on the construction site. He denies that his- inspection of the object was in any way disconnected from his work. On the contrary, he believes that his job description mandated his close scrutiny of any such object. ' >
[814]*814Under the circumstances of this case, specifically including the facts as found by the ALJ, we conclude that the Board was warranted in concluding that the incident which caused Huffs injuries did not constitute horseplay. Horseplay is defined as an action independent of and unconnected with work. See. Hayes Freight Lines v. Bums, 290 S.W.2d 836 (Ky. 1966). There is no substantial dispute with respect to how the incident occurred in this case. And the question of whether those facts show that Huff was involved in horseplay is one of law. In Hayes Freight Lines, the court observed that compensation is not ordinarily recoverable under the workers’ compensation act where injuries occur while the employee is not performing services growing out of and incidental to his employment.
In this case, however, the Board concluded that Huffs inspection of the object was incidental to his duty to insure that the work site remained safe and that no object that he and his spotter discovered on the grounds pósed a threat to safety. Huff was not engaged in an activity completely unrelated to his work away from the construction site. On the contrary, he was in the immediate vicinity of his forklift in conversation with his coworker, who expressed concern about an object that he had found on the ground near them. Huffs testimony was unequivocal that any foreign object found at the workplace had to be retrieved and inspected. Thus, his action in picking up the object was part and parcel of the scope of his employment duties. In attempting to identify possible markings on the object, he unwisely ignifcr ed his lighter.- Huffs testimony was that he had no idea that the object was explosive and that he was doing his best merely to identify it.
There is no evidence anywhere or testimony from anyone that he ignited his lighter in a jocular manner or that he teasingly tossed it into the air or-in the direction of White. No indication of horseplay'was present other than in the speculation of the ALJ and in the self-serving interpretation of events by Hall Contracting. The ALJ disregarded Huffs testimony and impermissibly substituted his own subjective impression in disregard and in derogation of Huffs explicit statement as to his own state of mind. An ALJ’s prerogative does not extend so far and is not so absolute as to encompass or to allow for such an arbitrary conclusion—especially in light of the beneficent purpose that underlies the Workers’ Compensation statutory scheme.
In light of the beneficent and remedial purposes of our Workers’ Compensation Act, we conclude that the Board did not err by overlooking or misconstruing controlling law nor did it so flagrantly err in its evaluation of the evidence that it has caused a gross injustice by reversing and remanding this claim for further consideration. Indeed, to conclude otherwise would be flagrant error and gross injustice.
Therefore, we affirm the opinion of the Workers’ Compensation Board.
NICKELL, JUDGE, CONCURS BY SEPARATE OPINION.
VANMETER, JUDGE, DISSENTS BY SEPARATE OPINION;