Opinion
NO. 2013-CA-001425-WC
12-12-2014
MODERN PROPERTY MANAGEMENT APPELLANT v. ESTATE OF JEFFREY ALLEN WILBURN (DECEASED); JULIE A. VAN HOOK, ADMINISTRATRIX AND PARENT AND NATURAL GUARDIAN OF AMANDA WILBURN AND MAXWELL WILBURN; HEIDI MARIE CANTER, PARENT AND NATURAL GUARDIAN OF ICY CANTER; HON. OTTO DANIEL WOLFF, IV, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Roberta K. Kiser Lexington, Kentucky BRIEF FOR APPELLEES: Laurie Goetz Kemp New Albany, Indiana
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-10-00459
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. MAZE, JUDGE: Modern Property Management (Modern) petitions for review from a decision of the Workers' Compensation Board (Board) which affirmed an opinion by the Administrative Law Judge (ALJ) awarding death benefits to the Estate of Jeffrey Allen Wilburn (Wilburn's estate) and income benefits to Wilburn's dependents. Modern argues that there was insufficient evidence to support the ALJ's finding that Wilburn was killed during the course and scope of his employment. Although the evidence was circumstantial, we agree with the Board that there was substantial evidence to support the ALJ's finding that Wilburn's death was caused by the positional risk associated with his employment. We further find that the ALJ did not err by ordering interest to run on the death benefit payable to Wilburn's estate. Hence, we affirm the Board.
Modern is in the business of managing and maintaining apartment buildings. Wilburn was employed as a maintenance manager for Modern. Wilburn also leased an apartment in a building managed by Modern located at 209 Lakeshore Drive in Lexington. He paid a reduced rent for the apartment because he was renovating the space for the building's owner, but this was not a part of his job duties. Tenants in the Lakeshore building would sometimes approach Wilburn directly for repairs. However, Wilburn was not assigned to perform maintenance duties at any specific building. Rather, he would handle maintenance requests at a number of properties around Lexington which were managed by Modern.
On March 11, 2009, Wilburn left work from another site and came home to eat lunch and to visit with guests who were staying at his apartment. He planned to drive his guests to the airport after lunch. While eating lunch with his guests, there was a loud knock at the door. Wilburn got up to answer the door. The guests testified that Wilburn appeared to recognize the woman, Latarra Martin, who was at the door. Wilburn opened the door and stepped outside.
Several guests reported hearing words exchanged between Wilburn and Martin, but did not hear the subject of the conversation. Within a short time, Martin pulled out a gun and shot Wilburn multiple times. Wilburn staggered back into the apartment. Martin attempted to shoot another guest, but the gun did not fire. The guest struck Martin with a chair and forced her from the apartment.
Wilburn died from his injuries within minutes. Martin was a tenant in Wilburn's building and had a history of mental illness. She had previously complained about water and plumbing issues, and she continued to complain to police officers about "dirty water" after the shooting. Martin was subsequently charged with the murder. Following a jury trial, she was found guilty but mentally ill. The Kentucky Supreme Court affirmed Martin's conviction on direct appeal. Martin v. Commonwealth, No. 2010-SC-000830-MR, 2011 WL 6826399 (Ky. 2011).
Wilburn was not married at the time of his death, but had three dependent children from prior relationships. His estate and dependents filed this claim seeking death benefits pursuant to Kentucky Revised Statutes (KRS) 342.750. Modern contested the claim, arguing that Wilburn's death did not occur within the course and scope of his employment. The parties submitted the matter to the ALJ based upon the documentary evidence, which included transcripts of the testimony presented at Martin's criminal trial.
In an opinion rendered on October 10, 2011, the ALJ found that Wilburn's death was related to or arose out of his employment with Modern. The ALJ agreed with Modern that Wilburn was on a personal errand when he returned to his apartment to have lunch with his guests and friends. However, the ALJ found that Wilburn returned to his work duties when he answered the door to deal with the maintenance issues about which Martin was complaining. Consequently, the ALJ found that Modern was required to pay death benefits.
Modern attempted to appeal the decision to the Board. However, the Board dismissed the appeal, concluding that it had been taken from an interlocutory order. Following additional proceedings, the ALJ awarded death benefits to Wilburn's estate totaling $68,198.54. The ALJ also determined that Wilburn's estate was entitled to interest on this amount at the rate of 12%. Finally, the ALJ ordered Modern to pay income benefits to each of Wilburn's dependents pursuant to KRS 342.750(1)(d).
On appeal, the Board affirmed the ALJ's award. The Board found substantial evidence to support the ALJ's finding that Wilburn was engaged in employment activities at the time he was shot. The Board also found that the ALJ did not err in assessing interest on the unpaid lump-sum benefit due to the estate pursuant to KRS 342.750(6). This petition for review followed.
Modern again argues that the ALJ erred in finding that Wilburn was acting within the scope of his employment at the time he was killed. Since Wilburn's estate was successful before the ALJ, the issue on appeal to the Board was whether the evidence compelled a result in Modern's favor. On factual matters, the ALJ has the sole discretion to determine the quality, character, and substance of the evidence, and an 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. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985); Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). But on questions of law, the standard of review is de novo. See Stone v. Kentucky Farm Bureau Mutual Ins. Co., 34 S.W.3d 809, 810 (Ky. App. 2000). When reviewing a decision of the Board, this Court will affirm the Board absent a finding that the Board has misconstrued or overlooked controlling law or has so flagrantly erred in evaluating the evidence that gross injustice has occurred. Western Baptist Hospital v. Kelly, 827 S.W.2d 685 (Ky. 1992).
As the claimant in this case, Wilburn's estate bore the burden of proving each of the essential elements of the claim, including that Wilburn's death was work related. The terms "work related" and "arising out of and in the course of employment" are synonymous under KRS 342.011(1). See Hayes v. Gibson Hart Co., 789 S.W.2d 775, 776 (Ky. 1990). A death may be considered work related when the employee's exposure to the risk is related to his employment, and except for his presence there he would not have been killed. Corken v. Corken Steel Products, Inc., 385 S.W.2d 949 (Ky. 1965).
The facts in Corken, supra, were relatively similar to those in the present case. Irvin Corken, a salesman employed by Corken Steel, was calling on customers in Campbell County. Between calls, he stopped at a restaurant in Newport and had lunch. As Corken was getting back into his car, which was parked on the street near the restaurant, he was deliberately shot and killed by a stranger acting without provocation or discernible reason of any kind. The former Court of Appeals found that Corken's employment was the reason for his presence at what turned out to be a place of danger. Since he would not have been killed but for his presence in that location, the Court found that Corken's death arose out of his employment. Id. at 950.
In the current case, there is no question that Wilburn was on a personal errand when he returned to his apartment for lunch. The only question was whether Wilburn returned to his work duties when he began to interact with Martin. As the ALJ noted, it is unclear exactly what transpired between Wilburn and Martin after he answered the door.
However, the circumstantial evidence and testimony supports the ALJ's conclusion that their interactions were of a business nature. First, George Corman, one of the guests in Wilburn's apartment, stated that he saw Wilburn speaking with Martin and heard him say something like, "okay, I'll handle it" shortly before the shooting. Second, as previously noted, there was evidence that tenants in the Lakeshore building had directly approached Wilburn with maintenance issues, notwithstanding Modern's practice to the contrary.
Third, there was hearsay testimony from several people that Wilburn had once been called to Martin's apartment to do some type of maintenance work. And finally, during the criminal proceedings, Martin told the psychologist that she believed dirty water was coming out of her faucets and wanted Wilburn to come and observe the situation. This was consistent with her statements to police immediately after the shooting.
Given this evidence, we agree with the Board that the ALJ could reasonably conclude that Wilburn was engaged in employment activities at the time he was shot. While the evidence was circumstantial, the record as a whole supports the finding that Martin went to the apartment that day because Wilburn was a maintenance manager and she believed that she had problems with her water and plumbing. There was no evidence that Martin approached anyone else that day about these perceived problems. Likewise, there was no evidence that Martin randomly approached Wilburn that day, or that she went to him for some other reason. Under the rule set out in Corken, Wilburn was exposed to the danger as a result of his employment duties with Modern. Therefore, the ALJ properly found that Wilburn's death was work related, and that his estate and dependents were entitled to benefits.
Modern also argues that the ALJ erred in awarding interest on the death benefit payable to Wilburn's estate. Modern contends that death benefits awarded under KRS 342.750(6) are not income benefits subject to interest. However, the Kentucky Supreme Court has expressly rejected this argument, finding that a deceased worker's estate is a "person" for the purposes of KRS 342.750(6) and that the lump-sum benefit is a form of income benefit. Bradley v. Commonwealth, 301 S.W.3d 27, 30 (Ky. 2009). Consequently, the Court held "that interest accrues on a lump-sum death benefit under KRS 342.040(1) just as it does on other past-due income benefits awarded under Chapter 342." Id. Therefore, the ALJ did not err by awarding interest on the death benefit.
Accordingly, the July 19, 2013 opinion of the Workers' Compensation Board affirming the January 14, 2013 opinion, order and award by the ALJ is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Roberta K. Kiser
Lexington, Kentucky
BRIEF FOR APPELLEES: Laurie Goetz Kemp
New Albany, Indiana