Opinion
NO. 2012-CA-000569-WC
10-26-2012
ROBERT MCKINNEY APPELLANT v. CITY OF ASHLAND, DOUGLAS W. GOTT, ADMINISTRATIVE LAW JUDGE; AND THE WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Jeffrey D. Hensley Flatwoods, Kentucky BRIEF FOR APPELLEE: Scott M. Guenther Louis D. Kelly Covington, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-11-00672
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON, AND STUMBO, JUDGES. DIXON, JUDGE: Robert McKinney petitions for review of a decision of the Workers' Compensation Board affirming an ALJ's decision to dismiss McKinney's claim for benefits. The ALJ concluded McKinney failed to meet his burden of proving that injuries he suffered in an assault arose out of his employment as a meter reader for the City of Ashland. Finding no error, we affirm.
McKinney began working for the City in November 2007. On November 18, 2009, McKinney and his co-worker, Tammy Sexton, were sharing a city work truck to conduct their respective meter reading routes. When McKinney finished his route, he waited in the truck for Sexton to return. Richard Ramsey, who was Sexton's former boyfriend, snuck up on McKinney and began punching him through the open truck window. Ramsey fled the scene before the police arrived, and McKinney sought medical treatment for his injuries.
McKinney filed a claim for workers' compensation benefits on May 2, 2011, alleging he suffered work injuries to his head and shoulder as a result of the assault. The ALJ held a final hearing on September 28, 2011. McKinney testified that, at the time of the assault, Sexton was his roommate. McKinney explained that he had offered Sexton a place to live when she ended her relationship with Ramsey in October 2009. McKinney emphasized that he had never had a problem with Ramsey before the attack; however, McKinney claimed that Ramsey was a jealous man and had confronted two of Sexton's male co-workers on prior occasions. McKinney conceded that in an earlier deposition he testified that he believed Ramsey attacked him because Ramsey was mad that Sexton had broken up with him and moved in with McKinney. After considering the evidence, the ALJ rendered an order dismissing McKinney's claim. The ALJ stated, in relevant part:
McKinney argues that his shoulder injury from the workplace assault is compensable because he was in a company-furnished vehicle waiting for a co-worker when the unanticipated attack occurred. He argues that his circumstance is distinguishable from that involved in the case of January-Wood Co. v. Schumacher, 22 S.W.2d 117 (Ky. 1929).
The Schumacher case involved the death of a night watchman who was murdered by a man who was having an affair with the decedent's wife. The ALJ finds that this case supports dismissal of McKinney's claim because the court ruled that, as with the case at bar, nothing about the night watchman's death could be traced to any cause set in motion by his employment. 'The fact that [the night watchman] was on the company's premises at work when killed by Eddings for reasons wholly unconnected with his employment and entirely unassociated with the relation existing between his employer and himself does not seem to this court sufficient to justify an award of compensation, which is in effect holding the company responsible in a degree for his murder[,]' or, in the case at bar, McKinney's assault. Id. at 120.
For purposes of Kentucky's Workers' Compensation Act, KRS 342.0011(1) defines 'injury' as meaning 'any work-related traumatic event . . . arising out of and in the course of employment . . . The test for whether an injury arises out of the worker's employment is whether the cause had its origin in a risk connected with the employment and the injury flowed from that source as a natural and rational consequence. City of Prestonsburg v. Gray, 341 S.W.2d 257, 259-60 (Ky. 1960).
The rule of law for workplace assaults is that the assault is not compensable if it is related to personal grievances between the parties, and it is compensable if the conditions and circumstances of the employment
facilitated the assault. Carnes v. Tremco Mfg. Co., 30 S.W.3d 172 (Ky. 2000).
McKinney correctly points out that he had no personal grievance with Ramsey prior to the assault. But the [City] accurately points out in its Brief that it is the motivation of the assailant, not the victim, that is determinative. Ramsey clearly had a personal grievance against McKinney because he had taken up residence with the woman with whom he had maintained a relationship for 15 years. That grievance had nothing to do with McKinney's employment with the [City]. There is no evidence to support the notion that anything about McKinney's employment facilitated Ramsey's assault upon him. McKinney's injury did not occur in the scope and course of his employment with the [City], and must be dismissed.
McKinney appealed the ALJ's decision to the Board. In a 2-1 decision, the Board affirmed the ALJ, and this petition for review followed.
"It has long been the rule that the claimant bears the burden of proof and the risk of nonpersuasion before the fact-finder with regard to every element of a workers' compensation claim." Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000). Where, as here, the claimant is unsuccessful before the ALJ and appeals to the Board, the question is "whether the evidence was so overwhelming, upon consideration of the entire record, as to have compelled a finding in [the claimant's] favor." Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984). When this Court reviews the Board's decision, our function is to correct the Board only where we believe it "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, 687-88 (Ky. 1992).
According to McKinney, the evidence compelled a finding that his injuries arose out of his employment. He asserts there was no evidence to support the ALJ's conclusion that Ramsey was motivated by a personal grievance against McKinney. McKinney points out that the City required meter readers to share vehicles. McKinney followed the City's policy by sharing a vehicle with Sexton on the day of the assault; accordingly, he contends his injuries were compensable because, by virtue of traveling with Sexton, his employment exposed him to the risk of being assaulted by Ramsey.
McKinney testified at his deposition that he believed Ramsey attacked him because Sexton had ended their relationship and moved in with McKinney. At the final hearing, McKinney backpedaled, asserting that he believed that Ramsey attacked him simply because he happened to be working with Sexton that day. McKinney opined that Ramsey was jealous of all of the men who worked with Sexton. In McKinney's view, there was no personal motivation for Ramsey to specifically attack him; rather, it was McKinney's unfortunate work assignment that caused the assault.
While McKinney is dissatisfied with the ALJ's assessment of the evidence, we are mindful that an ALJ "has the authority to determine the quality, character and substance of the evidence[,]" Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985), and he is free "to believe part of the evidence and disbelieve other parts of the evidence whether it came from the same witness or the same adversary party's total proof." Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). In light of McKinney's conflicting testimony, it was reasonable for the ALJ to infer that Ramsey was motivated by a personal grievance against McKinney, who was the new roommate of Ramsey's ex-girlfriend. Based on this finding of personal grievance, the ALJ properly concluded that McKinney's injury was not compensable because it did not arise out of his employment. "Where an employee is assaulted and injury is inflicted upon him through personal animosity arising over some cause wholly disconnected with the employer's business, no recovery can be had even though he is assaulted when in the discharge of his duties." Kentucky Fluorspar Co. v. Wolford, 263 Ky. 471, 92 S.W.2d 753, 754 (1936).
In sum, the ALJ's decision was supported by substantial evidence, and it was within the province of the ALJ to assess the credibility of McKinney's contradictory testimony. Despite McKinney's argument to the contrary, he simply has not shown that the evidence in his favor was "so overwhelming that no reasonable person would fail to be persuaded by it." Magic Coal Co., 19 S.W.3d at 96. Accordingly, the Board correctly determined the evidence did not compel a finding in McKinney's favor.
For the reasons stated herein, we affirm the decision of the Workers' Compensation Board.
ALL CONCUR. BRIEF FOR APPELLANT: Jeffrey D. Hensley
Flatwoods, Kentucky
BRIEF FOR APPELLEE: Scott M. Guenther
Louis D. Kelly
Covington, Kentucky