James Ray Foley v. Pegasus transportation/crst International

• Court: Court of Appeals of Kentucky
• Decided: October 6, 2022
• Docket: 2021 CA 000785
• Status: Unknown

Opinion

RENDERED: OCTOBER 7, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0785-WC

JAMES RAY FOLEY APPELLANT

PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-20-00322

PEGASUS TRANSPORTATION/CRST INTERNATIONAL; INDEMNITY INSURANCE OF NORTH AMERICA; HONORABLE THOMAS G. POLITES, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES

OPINION AFFIRMING

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BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND MCNEILL, JUDGES.

MCNEILL, JUDGE: On March 11, 2018, Appellant, James Ray Foley (Foley),

sustained serious injuries resulting from an automobile collision. He was driving a

vehicle rented for him by his prospective employer, Pegasus Transportation/CRST International (Pegasus). More specifically, after Foley had applied for a truck

driver position with Pegasus and it was determined that he was initially qualified,

Pegasus invited Foley to come to their Louisville facility to complete the

requirements necessary for an offer of employment. The purpose of providing

Foley with a rental vehicle is that if he was hired, he could leave the rental vehicle

in Louisville and begin driving for Pegasus, without leaving his personal vehicle

there and necessitating further delay. The collision and resulting injuries at issue

here occurred the day before Foley was scheduled to drive to Louisville.

Foley subsequently filed his Form 101, Application for Resolution of

Workers’ Compensation Claim. After a final hearing on the matter, the

Administrative Law Judge (ALJ) issued a sixteen-page opinion and order

dismissing Foley’s claim on the basis that there was no employer-employee

relationship at the time of the underlying injury. Foley petitioned the ALJ for

reconsideration, which was denied. He then appealed to the Workers’

Compensation Board (Board), which unanimously affirmed the ALJ’s

determinations. Foley now appeals to this Court as a matter of right. Having

reviewed the record and the law, we affirm.

STANDARD OF REVIEW

The ALJ has “the sole discretion to determine the quality, character,

weight, credibility, and substance of the evidence, and to draw reasonable

-2- inferences from the evidence.” Bowerman v. Black Equipment Co., 297 S.W.3d

858, 866 (Ky. App. 2009). Therefore, “appellate courts may not second-guess or

disturb discretionary decisions of an ALJ unless those decisions amount to

an abuse of discretion.” Id. (citing Medley v. Bd. of Educ., Shelby County, 168

S.W.3d 398, 406 (Ky. App. 2004)). “If the reviewing court concludes the rule of

law was correctly applied to facts supported by substantial evidence, the final order

of the agency must be affirmed.” Kentucky Unemployment Ins. Comm’n v. Cecil,

381 S.W.3d 238, 246 (Ky. 2012) (citing Brown Hotel Co. v. Edwards, 365 S.W.2d

299, 302 (Ky. 1962)). “Substantial evidence means evidence of substance and

relevant consequence having the fitness to induce conviction in the minds of

reasonable men.” Smyzer v. B.F. Goodrich Chem. Co., 474 S.W.2d 367, 369 (Ky.

1971) (citation omitted). “However, a reviewing court is entitled to substitute its

judgment for that of the agency where the agency’s ruling is based on an ‘incorrect

view of the law.’” Fresenius Medical Care Holdings, Inc. v. Mitchell, 507 S.W.3d

15, 19 (Ky. App. 2016) (quoting Kentucky Bd. of Nursing v. Ward, 890 S.W.2d

641, 642 (Ky. App. 1994)). With these standards in mind, we now turn to the

merits of the present case.

ANALYSIS

Foley argues that the ALJ and Board erred by: 1) failing to find an

implied employment contract between Foley and Pegasus; and 2) failing to find

-3- that Foley was an employee by virtue of performing services that benefitted

Pegasus at the time of his injury. As to his first argument, Foley specifically

contends that he had been promised employment by Pegasus’ recruiters and that he

relied on those promises to his detriment. The ALJ addressed these issues most

succinctly in its order denying Foley’s petition for reconsideration as follows:

Essentially [Foley] argues that because of the assurances of employment made by [Pegasus], [Foley] engaged in activities as part of his subjective belief of employment in which he suffered his injury therefore the promises made by [Pegasus’] personnel to him in the hiring process were sufficient to compel a finding of employment by estoppel. [Foley] cites UPS v. Rickett, 996 S.W.2d 464 (Ky. 1999) in support. As noted in the Opinion there is no dispute in this claim that [Pegasus] made assurances or promises to [Foley] that, if he successfully performed them, he would be hired. These promises were to present himself in Louisville on Monday morning for participation in the remainder of the hiring process, perform and pass a road test, pass a drug screen, and complete other paperwork. [Foley] did not complete any of these requirements as a result of his motor vehicle accident and the ALJ ruled that [Foley] was not far enough along in the hiring process to be considered an employee as a matter of law. . . . The fact remains, as set forth in the Opinion, that the Kentucky Supreme Court seemed to make clear in [Rahla v. Medical Center at Bowling Green, 483 S.W. 3d 360 (Ky. 2016)], that injuries that occur during the preliminary aspects of the hiring process are not deemed to have occurred in the course and scope of employment and that is the exact situation the facts here present. . . .

[Foley] also argue[s] that [he] was performing services that benefited [Pegasus] at the time of his injury . . . . At no time was [Foley] herein performing work for

-4- [Pegasus] and as such, [Foley’s] Petition on this issue is without basis.

In so holding, the ALJ addressed the additional authority argued by Foley. See

Hubbard v. Henry, 231 S.W.3d 124 (Ky. 2007) (finding that employment

relationship existed where claimant was actually performing work activities for the

employer on a trial basis); and Gaines Gentry Thoroughbreds/Fayette Farms v.

Mandujano, 366 S.W.3d 456 (Ky. 2012) (applying the “coming and going rule” to

hold in favor of an admitted employee who was injured while returning from a

work trip, although the employee delayed his return due to other reasons).

In its opinion affirming the ALJ, the Board also addressed Foley’s

arguments and authorities at length, ultimately agreeing that Foley’s claim was

properly dismissed. We also conclude that the ALJ’s opinion was based on

substantial evidence, i.e., “evidence of substance and relevant consequence having

the fitness to induce conviction in the minds of reasonable men.” Smyzer, 474

S.W.2d at 369 (citation omitted). More precisely, the ALJ meticulously discussed

the relevant evidence, observed that which favored both parties, and ultimately

found Pegasus’ evidence most convincing. This is squarely within the province of

the ALJ. And having considered the legal authority cited by Foley and discussed

by the underlying tribunals, we certainly cannot say that the ALJ’s ruling is based

on an “incorrect view of the law.” Mitchell, 507 S.W.3d at 19 (internal quotation

-5- marks omitted). Therefore, we ultimately conclude that the ALJ did not abuse his

discretion here.

CONCLUSION

For the foregoing reasons, we hereby affirm the Board, affirming the

decision issued by the ALJ.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE CRST INTERNATIONAL/PEGASUS John F. Kelley, Jr. TRANSPORTATION: London, Kentucky Johanna F. Ellison Lexington, Kentucky

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