RENDERED: DECEMBER 18, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0567-WC
OWENS & MINOR APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-17-83787
DEONDRAY COLE; HONORABLE JOHN H. MCCRACKEN, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, MAZE, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Owens & Minor petitions for review from an opinion of the
Workers’ Compensation Board (“Board”) affirming the opinion and order of the
Administrative Law Judge (“ALJ”), which found that claimant, Deondray Cole (“Cole”), was injured during the course and scope of his employment with Owens
& Minor. Finding no error, we affirm.
Background
Cole began working as a warehouse coordinator for Owens & Minor
in January 2017. His main job duty was to retrieve product from the warehouse
shelves to fulfill orders for shipment, often requiring him to operate heavy
machinery to reach the product. Owens & Minor mandated that all employees be
certified on a piece of equipment before operating it. To become certified,
employees watched a video, took a written test, and received hands-on training
from a safety and training coordinator.
Although this was the company’s official policy, Cole testified it was
common for employees already trained on the equipment to train other employees.
This was corroborated by fellow employee Cameron Bethard, who testified that he
saw employees training other employees on the equipment almost daily. He
further testified that this training happened out in the open, where anyone,
including management, could see.
Additionally, Steve Linton, a safety and training coordinator for
Owens & Minor, as well as Igor Dizdaredic, Owens & Minor’s human resources
representative, admitted that Betsy Parks, a warehouse coordinator (like Cole), had
-2- been approved to train other employees on the machinery, before sending them to
the safety and training coordinators to be certified.
Although management testified that company policy prohibited
employees from training one another on the equipment, this policy was not
enforced until after Cole’s injury. Both Cole and Bethard testified they were
unaware of the policy until a few weeks after Cole’s injury, when management
held a meeting and announced employees could no longer train one another.
At the time of his injury, Cole was only certified to operate a piece of
equipment known as a “cherry picker.” Cole was certified by safety and training
coordinator Steve Linton. Because Cole had previous experience with the
equipment, Linton did not require that Cole receive hands-on training, but simply
assessed Cole’s proficiency on the machinery before certifying him.
On April 25, 2017, a fellow employee, Hasan Kzghair (“Hasan”),
offered to train Cole on the “dockstocker,” a kind of forklift. Cole had previously
asked to be trained on the equipment and even testified it was required for some
departments at Owens & Minor. Cole wanted to be trained on the dockstocker
because he thought it would add value to the company and give him more
flexibility to move around within the company. Following basic instruction, Cole
attempted to operate the dockstocker. As he put the machine in reverse, he lost
-3- control and fell backwards, trapping his arm between the machine and some steel
racks.
Gerald Rivera, operations supervisor for Owens & Minor, arrived on
scene to find Cole on the ground, his arm bleeding. Cole told Rivera that Hasan
was training him on the dockstocker and he lost control. Hasan overheard this
conversation and did not object. However, after speaking with other employees,
Hasan denied training Cole. Rivera testified he did not believe Hasan was being
truthful but was trying to avoid discipline.
Hasan testified he had exited the dockstocker to speak with other
employees but had left it running. Suddenly, he noticed Cole operating the
machine. Hasan again denied he was training Cole at the time of Cole’s injury.
Written statements were taken from several employees Hasan claimed he was with
at the time of the incident, however none corroborate this claim. Adam Garcia,
Cole’s direct supervisor at the time of the incident, testified he had never seen Cole
“goofing off” on equipment or at work in general.
Following an evidentiary hearing, the ALJ determined Cole was
injured while acting in the course and scope of his employment with Owens &
Minor. It found credible Cole’s testimony that Hasan was training him how to
operate the dockstocker at the time of his injury. It noted Cameron Bethard’s
corroborating testimony that employees routinely trained other employees how to
-4- operate equipment and management’s admission that one employee specifically
had been approved to do so, despite company policy against it. The ALJ further
credited Cole’s testimony that he wanted to be trained on the dockstocker to add
value to the company and better perform his job. The Board affirmed the ALJ’s
determination. This petition for review followed.
Standard of Review
Our standard of review in workers’ compensation claims differs
depending on whether we are reviewing questions of law or questions of fact. “As
a reviewing court, we are bound neither by an ALJ’s decisions on questions of law
or an ALJ’s interpretation and application of the law to the facts. In either case,
our standard of review is de novo.” Bowerman v. Black Equip. Co., 297 S.W.3d
858, 866 (Ky. App. 2009).
As to questions of fact, “[t]he ALJ as fact finder has the sole authority
to judge the weight, credibility, substance, and inferences to be drawn from the
evidence.” LKLP CAC Inc. v. Fleming, 520 S.W.3d 382, 386 (Ky. 2017) (citation
omitted). Furthermore,
[a]n ALJ 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 adversary party’s total proof. Although a party may note evidence that would have supported a different decision, such evidence is not an adequate basis for reversal on appeal.
-5- Clark Cty. Bd. of Educ. v. Jacobs, 278 S.W.3d 140, 143 (Ky. 2009) (citation
omitted). If an ALJ’s findings of fact are supported by substantial evidence, a
finding contrary to the ALJ’s findings cannot be sustained. AK Steel Corp. v.
Adkins, 253 S.W.3d 59, 64 (Ky. 2008). “Substantial evidence means evidence of
substance and relevant consequence having the fitness to induce conviction in the
minds of reasonable men.” Ford Motor Co. v. Jobe, 544 S.W.3d 628, 632 (Ky.
2018) (citation omitted).
Analysis
The sole issue in this appeal is whether Cole was acting in the course
or scope of his employment when injured. See KRS1 342.0011(1) (requiring a
compensable injury to arise out of and in the course of the injured worker’s
employment). Owens & Minor argue that the ALJ’s finding on this issue is not
supported by substantial evidence.
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: DECEMBER 18, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0567-WC
OWENS & MINOR APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-17-83787
DEONDRAY COLE; HONORABLE JOHN H. MCCRACKEN, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, MAZE, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Owens & Minor petitions for review from an opinion of the
Workers’ Compensation Board (“Board”) affirming the opinion and order of the
Administrative Law Judge (“ALJ”), which found that claimant, Deondray Cole (“Cole”), was injured during the course and scope of his employment with Owens
& Minor. Finding no error, we affirm.
Background
Cole began working as a warehouse coordinator for Owens & Minor
in January 2017. His main job duty was to retrieve product from the warehouse
shelves to fulfill orders for shipment, often requiring him to operate heavy
machinery to reach the product. Owens & Minor mandated that all employees be
certified on a piece of equipment before operating it. To become certified,
employees watched a video, took a written test, and received hands-on training
from a safety and training coordinator.
Although this was the company’s official policy, Cole testified it was
common for employees already trained on the equipment to train other employees.
This was corroborated by fellow employee Cameron Bethard, who testified that he
saw employees training other employees on the equipment almost daily. He
further testified that this training happened out in the open, where anyone,
including management, could see.
Additionally, Steve Linton, a safety and training coordinator for
Owens & Minor, as well as Igor Dizdaredic, Owens & Minor’s human resources
representative, admitted that Betsy Parks, a warehouse coordinator (like Cole), had
-2- been approved to train other employees on the machinery, before sending them to
the safety and training coordinators to be certified.
Although management testified that company policy prohibited
employees from training one another on the equipment, this policy was not
enforced until after Cole’s injury. Both Cole and Bethard testified they were
unaware of the policy until a few weeks after Cole’s injury, when management
held a meeting and announced employees could no longer train one another.
At the time of his injury, Cole was only certified to operate a piece of
equipment known as a “cherry picker.” Cole was certified by safety and training
coordinator Steve Linton. Because Cole had previous experience with the
equipment, Linton did not require that Cole receive hands-on training, but simply
assessed Cole’s proficiency on the machinery before certifying him.
On April 25, 2017, a fellow employee, Hasan Kzghair (“Hasan”),
offered to train Cole on the “dockstocker,” a kind of forklift. Cole had previously
asked to be trained on the equipment and even testified it was required for some
departments at Owens & Minor. Cole wanted to be trained on the dockstocker
because he thought it would add value to the company and give him more
flexibility to move around within the company. Following basic instruction, Cole
attempted to operate the dockstocker. As he put the machine in reverse, he lost
-3- control and fell backwards, trapping his arm between the machine and some steel
racks.
Gerald Rivera, operations supervisor for Owens & Minor, arrived on
scene to find Cole on the ground, his arm bleeding. Cole told Rivera that Hasan
was training him on the dockstocker and he lost control. Hasan overheard this
conversation and did not object. However, after speaking with other employees,
Hasan denied training Cole. Rivera testified he did not believe Hasan was being
truthful but was trying to avoid discipline.
Hasan testified he had exited the dockstocker to speak with other
employees but had left it running. Suddenly, he noticed Cole operating the
machine. Hasan again denied he was training Cole at the time of Cole’s injury.
Written statements were taken from several employees Hasan claimed he was with
at the time of the incident, however none corroborate this claim. Adam Garcia,
Cole’s direct supervisor at the time of the incident, testified he had never seen Cole
“goofing off” on equipment or at work in general.
Following an evidentiary hearing, the ALJ determined Cole was
injured while acting in the course and scope of his employment with Owens &
Minor. It found credible Cole’s testimony that Hasan was training him how to
operate the dockstocker at the time of his injury. It noted Cameron Bethard’s
corroborating testimony that employees routinely trained other employees how to
-4- operate equipment and management’s admission that one employee specifically
had been approved to do so, despite company policy against it. The ALJ further
credited Cole’s testimony that he wanted to be trained on the dockstocker to add
value to the company and better perform his job. The Board affirmed the ALJ’s
determination. This petition for review followed.
Standard of Review
Our standard of review in workers’ compensation claims differs
depending on whether we are reviewing questions of law or questions of fact. “As
a reviewing court, we are bound neither by an ALJ’s decisions on questions of law
or an ALJ’s interpretation and application of the law to the facts. In either case,
our standard of review is de novo.” Bowerman v. Black Equip. Co., 297 S.W.3d
858, 866 (Ky. App. 2009).
As to questions of fact, “[t]he ALJ as fact finder has the sole authority
to judge the weight, credibility, substance, and inferences to be drawn from the
evidence.” LKLP CAC Inc. v. Fleming, 520 S.W.3d 382, 386 (Ky. 2017) (citation
omitted). Furthermore,
[a]n ALJ 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 adversary party’s total proof. Although a party may note evidence that would have supported a different decision, such evidence is not an adequate basis for reversal on appeal.
-5- Clark Cty. Bd. of Educ. v. Jacobs, 278 S.W.3d 140, 143 (Ky. 2009) (citation
omitted). If an ALJ’s findings of fact are supported by substantial evidence, a
finding contrary to the ALJ’s findings cannot be sustained. AK Steel Corp. v.
Adkins, 253 S.W.3d 59, 64 (Ky. 2008). “Substantial evidence means evidence of
substance and relevant consequence having the fitness to induce conviction in the
minds of reasonable men.” Ford Motor Co. v. Jobe, 544 S.W.3d 628, 632 (Ky.
2018) (citation omitted).
Analysis
The sole issue in this appeal is whether Cole was acting in the course
or scope of his employment when injured. See KRS1 342.0011(1) (requiring a
compensable injury to arise out of and in the course of the injured worker’s
employment). Owens & Minor argue that the ALJ’s finding on this issue is not
supported by substantial evidence. We disagree. “An injury arises out of an
employment if the employment causes it, i.e., if the employment subjects the
worker to an increased risk of injury.” Jacobs, 278 S.W.3d at 143. Further, “[a]n
injury occurs in the course of an employment if it takes place during the
employment, at a place where the employee may reasonably be, and while the
employee is working or otherwise serving the employer’s interests.” Id.
1 Kentucky Revised Statutes.
-6- Here, the ALJ found Cole was training to use the dockstocker at the
time of his injury and was acting in Owens & Minor’s interest in doing so.
Substantial evidence supports these findings. Cole testified Hasan was training
him on the dockstocker when he lost control of the machine. Gerald Rivera, an
operations supervisor, said Cole told him the same thing shortly after the injury,
and Hasan, who was standing nearby, did not deny it. Cole explained he wanted to
be trained on the dockstocker to better perform his job, help others in the
warehouse, and increase his job skills. Cole asked to be trained on the dockstocker
prior to his injury.
Owens & Minor contend the “overwhelming evidence was that [Cole]
was participating in ‘horseplay’ at the time of the injury by taking the dockstocker
for a ‘joy ride’ . . . .” It points to Hasan’s testimony that he was not training Cole
and that Cole was operating the dockstocker without his knowledge and
permission. However, the ALJ found Hasan’s testimony concerning the incident
not credible. In making this determination it relied upon Gerald Rivera’s
testimony that Hasan initially did not deny training Cole but only did so after
speaking with fellow employees. Rivera testified that while speaking with Cole,
Hasan walked away and then returned moments later, denying Cole’s account.
Adam Garcia, Cole’s direct supervisor at the time of the incident, testified Cole
-7- was a good worker and he had never seen Cole “goofing off” on equipment or at
work in general.
Even if Cole was training, Owens & Minor argue, such training was
unauthorized because company policy prohibits employee-employee training.
While recognizing this policy, the ALJ found Owens & Minor did not enforce it
until after Cole’s injury. This finding was supported by substantial evidence. Both
Cole and Cameron Bethard testified that employee-employee training was common
at Owens & Minor. Moreover, Steve Linton, Owens & Minor’s training and safety
coordinator, admitted that one employee, Becky Parks, had specifically been
approved by management to train fellow employees because they were behind and
needed people trained on dockstockers. As further evidence that Owens & Minor
did not enforce the policy, Cole was not disciplined following his injury. Linton
testified that after Cole’s injury, the company implemented a “tough love” policy
against operating a dockstocker without certification.
Essentially, Owens & Minor asks us to substitute our judgment for
that of the ALJ, which we cannot do. On review, neither the Board nor the
appellate court can substitute its judgment for that of the ALJ as to the weight of
evidence on questions of fact. Gaines Gentry Thoroughbreds/Fayette Farms v.
Mandujano, 366 S.W.3d 456, 461 (Ky. 2012) (citing KRS 342.285 and 342.290).
As noted above, “[t]he ALJ as fact finder has the sole authority to judge the
-8- weight, credibility, substance, and inferences to be drawn from the evidence.”
Jobe, 544 S.W.3d at 631 (citation omitted). “Although a party may note evidence
that would have supported a different outcome than reached by an ALJ, such proof
is an inadequate basis for reversal on appeal.” Miller v. Go Hire Employment
Dev., Inc., 473 S.W.3d 621, 629 (Ky. App. 2015) (citation omitted). “Rather, it
must be shown there was no evidence of substantial probative value to support the
decision.” Id. (citation omitted). Owens & Minor has not met this burden.
Conclusion
Accordingly, the opinion of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE DEONDRAY COLE: Rodney J. Mayer Louisville, Kentucky Derek P. O’Bryan Louisville, Kentucky
-9-