Pilgrim's Pride Corporation v. Patsy Herndon

• Court: Court of Appeals of Kentucky
• Decided: December 2, 2021
• Docket: 2021 CA 000684
• Status: Unknown

Opinion

RENDERED: DECEMBER 3, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0684-WC

PILGRIM’S PRIDE CORPORATION APPELLANT

PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NOS. WC-2019-01490 AND WC-2019-53330

PATSY HERNDON; HONORABLE TONYA CLEMMONS, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.

CETRULO, JUDGE: Pilgrim’s Pride (“Employer”) appeals an opinion of the

Workers’ Compensation Board (“the Board”) which reversed and remanded the

opinion and order of the Administrative Law Judge (“the ALJ”) dismissing Patsy Herndon’s workers’ compensation claims for injuries sustained on November 11,

2019, and November 13, 2019.1 We affirm the Board.

Herndon worked for Employer, a poultry processing facility, as a

main inspector helper for approximately twenty-five years. She worked the night

shift and was not permitted to clock in until 9:07 p.m. However, for approximately

five years up to and including 2019, Herndon arrived for work any time from 7:00-

7:30 p.m. She was never instructed by a supervisor not to arrive in this timeframe,

and most workers arrived thirty minutes prior to the start of the night shift.

Herndon arrived early to eat supper with a fellow employee who worked an earlier

shift.

Upon arrival to work, Herndon was required to pass through a secured

entrance into Employer’s parking lot. After exiting her vehicle, Herndon walked

across the parking lot, then swiped her employee badge at a set of turnstiles to

enter the building. Herndon testified that she would then put on her work clothes

and gear prior to eating her meal. On the evening of November 11, 2019, Herndon

arrived for her shift at approximately 7:10 p.m. The parking lot was covered by ice

and snow. She parked her vehicle, exited, and walked around to the passenger’s

side to retrieve a bag containing her work gear when she fell. Herndon got up,

1 Herndon had two separate claims based on the date of each incident. The claims were consolidated by the ALJ.

-2- opened the vehicle’s door, and fell again on a piece of waxed cardboard that was

covered by the snow and ice. Upon falling the second time, she landed on her left

foot and heard a pop in her left knee. Herndon managed to walk into the facility

and notified a supervisor of the falls. She was seen by Employer’s medical staff

and placed on light duty in the supply room for the duration of her shift. Herndon

testified in her deposition that she experienced pain and difficulty walking after the

falls and for the remainder of her shift.

The next day, Herndon arrived early for the night shift and worked in

the supply room on light duty. On November 13, 2019, she arrived at her usual

early time. Herndon testified in her deposition that as she was walking across the

parking lot, approaching the turnstiles just outside of the facility, her legs went

numb and she fell. Two employees, who did not see her fall, but heard her asking

for help, assisted her to a nearby bench and retrieved a supervisor. Herndon

requested an ambulance and was transported to the hospital where X-rays were

performed. She was ultimately diagnosed with a left leg fracture and underwent

surgery. After surgery, she was admitted to a skilled nursing and rehabilitation

facility for assistance and therapy. She was discharged from the facility on March

1, 2020.

Herndon sought workers’ compensation in the form of total temporary

disability, medical, and credit for short-term disability benefits. Her claim was

-3- denied by the ALJ. On appeal, the Board reversed and remanded the ALJ’s

decision. Employer appealed. Further facts will be developed as necessary.

Generally, the ALJ is the sole fact-finder in all workers’ compensation

claims. “KRS[2] 342.285 designates the ALJ as finder of fact, and has been

construed to mean that the fact-finder has the sole discretion to determine the

quality, character, weight, credibility, and substance of the evidence, and to draw

reasonable inferences from the evidence.” Bowerman v. Black Equipment Co., 297

S.W.3d 858, 866 (Ky. App. 2009). As the claimant, Herndon had the burden of

proving every element of her claim. Wetherby v. Amazon.com, 580 S.W.3d 521,

526 (Ky. 2019) (citation omitted). When a claim is denied by the ALJ, on appeal

to the Board, the issue is whether substantial evidence supported the ALJ’s

findings. Id. “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 Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971).

However, the facts as stated herein are largely uncontested. Rather,

we must review whether the ALJ correctly applied the law to the facts. “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,

2 Kentucky Revised Statutes.

-4- our standard of review is de novo.” Ford Motor Co. v. Jobe, 544 S.W.3d 628, 631

(Ky. 2018) (citing Bowerman, 297 S.W.3d at 866).

We are unpersuaded by Employer’s argument that the Board

substituted its own findings for that of the ALJ. The narrow issue, as framed by

the ALJ and the Board, is whether Herndon’s injuries on November 11 and 13,

2019, arose out of and in the course of her employment. This is a question of law

and, accordingly, our review is de novo. We agree with the Board that Herndon’s

injuries did arise out of and in the course of her employment.

The coming and going rule is applicable in the instant action. The

ALJ noted the rule in workers’ compensation cases states

[t]he general rule is that injuries[3] sustained by workers when they are going to or returning from the place where they regularly perform the duties connected with their employment are not deemed to arise out of and in the course of the employment as the hazards ordinarily encountered in such journeys are not incident to the

3 KRS 342.0011(1) defines “injury” in workers’ compensation claims as

any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings. “Injury” does not include the effects of the natural aging process, and does not include any communicable disease unless the risk of contracting the disease is increased by the nature of the employment. “Injury” when used generally, unless the context indicates otherwise, shall include an occupational disease and damage to a prosthetic appliance, but shall not include a psychological, psychiatric, or stress-related change in the human organism, unless it is a direct result of a physical injury[.]

-5- employer’s business.

Receveur Const. Co./Realm, Inc. v. Rogers, 958 S.W.2d 18, 20 (Ky. 1997) (citation

omitted).

The ALJ also noted the exception to the coming and going rule, which

is that injuries are compensable if they occur on the employer’s operating

premises. Ratliff v. Epling, 401 S.W.2d 43 (Ky. 1966). Briefly, in Ratliff, a coal

mine employee (Employee) asked a fellow worker for a ride home when their shift

ended. However, the vehicle would not start, so the fellow worker left to find

assistance. While he was gone, Employee decided to exit the vehicle and collect

coal for his own personal use. While doing so, an embankment caved in and

crushed Employee, resulting in his death. This happened approximately one half

hour after Employee’s shift had ended. Kentucky’s then-highest Court, in adopting

the operating premises rule, also found that Ratliff was not entitled to

compensation in the form of death benefits because, even though the accident

occurred on employer’s operating premises, Employee was on a “personal

mission” when he decided to exit the vehicle and collect coal for his personal use.

The Court also instructed that time was a factor to consider and that an employee

remains in the course of his employment only for a reasonable time necessary to accomplish the ‘going’ or ‘coming’ process. Delay in departure itself increases the hazard. It may be said that the longer the delay, the lesser the deviation which will take the employee out of the course of his employment. Here the delay in

-6- departure plus the nature of the deviation unreasonably compounded the risks to which the employer should be subjected.

Id. at 46.

Looking to Ratliff, the ALJ relied on the fact that Herndon reported to

work two hours before she was able to start her shift and made a conclusion of law

that such an early arrival was unreasonable. Thus, the ALJ concluded the incidents

on November 11 and 13, 2019, did not constitute an injury as defined in KRS

342.0011 because they were not in the course of Herndon’s employment, stating

[t]he ALJ is not convinced that an unpaid, pre-shift meal approximately two hours prior to the beginning of a work shift is work-related or incidental to [Herndon’s] work. The evidence does not establish that [Herndon] was serving [Employer’s] interests or an employer requirement that arriving early to have a pre-shift meal was an activity that was in the course of her employment.

On appeal, the Board narrowly focused on the precise time and nature

of Herndon’s accidents and concluded that she was engaged in the normal activity

of going to work and was in the course and scope of her employment at the time of

both falls, despite the fact she arrived approximately two hours early for her shift.

The Board concluded the ALJ misapplied the law to the facts, not that the ALJ’s

findings were not supported by evidence. We agree.

The Kentucky Supreme Court, in offering further clarification of

Ratliff, has instructed

-7- [a]s a general rule, once the employee of a contractor, whether independent or subcontractor, has crossed the threshold onto the private property upon which the job site is located where his employer is providing services, he should be considered exposed to the risks because of his employment and entitled to coverage under the “on premises” modification of the “going and coming” rule. However, we recognize that the location or position where the accident occurs is just one factor to be considered in deciding whether a person who has not yet reported to work should be covered by the workers’ compensation law. While the employee is still in a “going and coming” status the Ratliff case requires the cause of the injury to also be considered, and this may outweigh the importance of the place of the injury if the cause of the injury represents a significant deviation from normal activity involved in going and coming.

Hayes v. Gibson Hart Co., 789 S.W.2d 775, 779 (Ky. 1990). In sum, when

considering the coming and going rule, “the coverage decision must be based upon

the quantum of aggregate facts rather than the existence or nonexistence of any

particular factor.” Id. at 777 (internal quotation marks and citations omitted).

It is undisputed that the parking lot where the incidents occurred

constitutes Employer’s operating premises.4 It is also undisputed that Herndon

4 In clarifying the operating premises rule in relation to employer-controlled parking lots, the Kentucky Supreme Court has held

if an employer provides or maintains a parking lot or other premises for the convenience of its employees, and an employee, while on said premises, sustains a work-connected injury, then the employer is responsible to the employee for workers’ compensation benefits. Two factors must be present to fix liability on the employer. First of all, the employer must control the area, and second, a work-related injury must have been sustained on the

-8- suffered three falls on Employer’s operating premises. She was at her vehicle

gathering her work gear when she suffered two falls on November 11, 2019, and

was walking across the parking lot to the facility when she fell on November 13,

2019. She was scheduled to work her regular night shift on both occasions and we

agree with the Board that she was engaged in normal employment activity when

the falls occurred.

Employer attempts to persuade this Court to engage in speculative

“what-if” scenarios, arguing that, had Herndon arrived two hours later on

November 11, 2019, perhaps the parking space she had chosen would have been

occupied, the cardboard box removed, or there would have been a change in the

snow and ice levels in the parking lot.5 We do acknowledge that our analysis

would likely be different if Herndon was injured while eating her early supper in

the facility, or if she had shown up on an evening when she was not scheduled to

work simply to dine with her friend. However, neither of those scenarios, nor

those presented by Employer, are applicable to the facts of November 11 and 13,

2019. Herndon was on Employer’s operating premises and engaged in normal

area. What we are saying is that “operating premises” constitute a part of the work area, and an employee, under those conditions, receiving a work-related injury is in a “work connected activity.”

K-Mart Discount Stores v. Schroeder, 623 S.W.2d 900, 902 (Ky. 1981). 5 See p. 18 of Employer’s petition for review.

-9- coming and going activity when she fell on both dates. She was not engaged in a

“personal mission” at the times the falls occurred. The Board did not err in

considering the quantum of aggregate facts rather than relying upon the sole factor

of time.

For the reasons stated herein, the decision of the Board is affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

James G. Fogle David Troutman Louisville, Kentucky Mark Edwards Paducah, Kentucky

-10-