Opinion
NO. 2012-CA-001779-WC
04-19-2013
BOYLE MASONRY CONSTRUCTION APPELLANT v. FELIPE MEDELLIN; HON. DOUGLAS W. GOTT, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Kamp T. Purdy Stephanie D. Ross Lexington, Kentucky BRIEF FOR APPELLEE FELIPE MEDELLIN: Aaron D. Reedy Jacob K. Michul Lexington, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-11-00042
OPINION
AFFIRMING
BEFORE: MAZE, STUMBO AND VANMETER, JUDGES. STUMBO, JUDGE: Boyle Masonry Construction appeals from an opinion of the Workers' Compensation Board (hereinafter Board) affirming an order of Douglas Gott, Administrative Law Judge (hereinafter ALJ). That order concluded that the injuries sustained by Felipe Medellin occurred in the course and scope of his employment. Boyle appeals that conclusion to this Court. We find no error and affirm.
Medellin has been employed by Boyle Masonry since 1995. On September 7, 2010, at approximately 5:30 pm, he was a passenger in a company pickup truck driven by his supervisor, Mark Baxter. Medellin and Baxter were on their way home to Liberty, Kentucky from a work site in Lexington, Kentucky. Baxter suffered a medical event while driving and passed out at the wheel, causing the vehicle to go into a field and strike a tree. Medellin injured his lower back and right shoulder. Medellin did not have a valid driver's license at the time and he regularly rode to the work site with Baxter, with Dwight Boyle's knowledge. Medellin and Baxter lived close to one another in Liberty, making this a feasible arrangement. Boyle Masonry had provided Baxter with a company vehicle, with gas and vehicle insurance being paid by the company.
His license had been suspended due to a DUI.
Dwight Boyle is the owner of Boyle Masonry Construction. He and Baxter discussed Medellin's lack of a driver's license and agreed that Baxter should drive him to work.
--------
Boyle Masonry denied that a work-related injury had occurred because Medellin was done with his work day when the accident occurred.
The general rule is that injuries 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 employer's business. However, this general rule is subject to several exceptions. For example, transitory activities of employees are covered if they are providingReceveur Const. Company/Realm, Inc. v. Rogers, 958 S.W.2d 18, 20 (Ky. 1997) (citations omitted). This rule is generally referred to as the "coming and going rule". Boyle Masonry argues that Medellin was on his way home from work when the accident occurred and was not providing a service or benefit to the employer when the accident occurred. Boyle Masonry argued to the ALJ, and continues to argue, that the coming and going rule applies and Medellin's injuries are not compensable.
some service to the employer, i.e., service to the employer exception.
The ALJ found that the service to the employer exception to the coming and going rule applied and concluded that the injuries were work related. The ALJ found that Boyle Masonry benefitted from Medellin traveling to and from work in the company vehicle. The ALJ found that: the work site was 74 miles away from Medellin's home; that Medellin lost his driver's license because of a DUI; that Mr. Boyle knew of this and told Medellin it was "not acceptable practice" to drive without a license; that Mr. Boyle knew Baxter was driving Medellin to work; that Mr. Boyle knew Medellin could not get to a remote work site without a ride from a coworker; and that Medellin had been employed by Boyle Masonry for 12 years. Ultimately, the ALJ concluded that Boyle Masonry benefitted from having this long-time employee be driven to and from the remote work site.
Boyle Masonry appealed to the Board. The Board found that substantial evidence supported the ALJ's conclusion that having Medellin ride with Baxter to the remote construction site conferred a benefit upon Boyle Masonry. The Board specifically discusses the fact that Mr. Boyle stopped Medellin from driving to the work site because he did not have a license. The Board found that because Mr. Boyle stopped Medellin from driving and permitted Baxter to transport him, it was demonstrated that Mr. Boyle did not want to lose Medellin's services. Further, we note that as stated by the ALJ, Boyle Masonry had no headquarters or permanent facility other than the owner's home. All work was performed at remote job sites. In this particular incident, Medellin had to travel 74 miles to reach the work site. This appeal followed.
"The function of further review of the [Board] in the Court of Appeals is to correct the Board only where the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-688 (Ky. 1992). Whether the actions of an employee are for the benefit or service of his employer is a question of fact. Howard D. Sturgill & Sons v. Fairchild, 647 S.W.2d 796, 797 (Ky. 1983).
KRS 342.285 designates the ALJ as the finder of fact. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985), explains that the fact-finder has the sole authority to judge the weight, credibility, substance, and inferences to be drawn from the evidence. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986), explains that a finding that favors the party with the burden of proof may not be disturbed if it is supported by substantial evidence and, therefore, is reasonable.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." Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971). We find no error.
In the case at hand, Boyle Masonry has no fixed offices; the company is run out of Mr. Boyle's home. Also, the employees leave their homes at the beginning of the work day and drive straight to the different work sites, some of which are a considerable distance. With this in mind, we find no error in the ALJ's findings that Medellin's transportation to and from the work site was of benefit to Boyle Masonry. The findings made by the ALJ and Board discussed supra were supported by substantial evidence in the form of testimony from Medellin, Baxter, and Mr. Boyle. The ALJ found that Boyle Masonry derived a benefit from Medellin being at the work site and this finding is not unreasonable. In this case, the service to the employer exception applies to the general coming and going rule.
For the foregoing reasons we affirm the judgment of the Board.
MAZE, JUDGE, CONCURS.
VANMETER, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Kamp T. Purdy
Stephanie D. Ross
Lexington, Kentucky
BRIEF FOR APPELLEE FELIPE
MEDELLIN:
Aaron D. Reedy
Jacob K. Michul
Lexington, Kentucky