Opinion
NO. 2013-CA-000861-MR
12-05-2014
BRIAN WARRAN APPELLANT v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION AND KENTUCKY BUILDING SYSTEMS APPELLEES
BRIEF FOR APPELLANT: Daniel Caslin Owensboro, Kentucky BRIEF FOR APPELLEE, KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION: Amy F. Howard Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HANCOCK CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 10-CI-00089
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; JONES AND LAMBERT, JUDGES. LAMBERT, JUDGE: Brian Warran has appealed from the decision of the Hancock Circuit Court affirming the order of the Kentucky Unemployment Insurance Commission (KUIC) denying his request for unemployment benefits. We affirm.
Warran worked as an ironworker for Kentucky Building Systems in Lewisport, Kentucky, beginning in 2006. His last day of work was October 30, 2009. Warran filed for unemployment benefits in early January 2010, stating he had been laid off for lack of work following an October 27, 2009, motor vehicle accident he had while on-the-job. A semi ran a red light and hit him on the driver's side of his car at a speed of 45 miles per hour, injuring his back. He indicated that he had physical and/or mental conditions that prevented him from working without any limitations. Warran stated that he had a doctor's note that he had to be on light duty, or office type work, with frequent breaks. He could not do anything involving bending or lifting. In the employer's statement, Kentucky Business Systems owner Tim Powers stated: "Wreck on 10-28-10 not work related, [l]ast day of work 10-30-09. Have not heard from Brian since late Nov., I thought he was still under doctor's care, [l]eft voice mail Mon with no return Wed." In a separate request processed January 31, 2010, Warran stated that he had been laid off with definite recall after a semi ran a red light and hit him, injuring his back. He did not indicate that the accident was related to his work. In the employer's statement responding to this filing, Mr. Powers stated that he had spoken with Warran on February 8, 2010, and that he was still under a doctor's care.
On February 16, 2010, the Division of Unemployment Insurance issued a notice of determination denying Warran's claim for benefits, stating that Warran had failed to maintain timely contact with his employer while he was under a doctor's care and when he was released to light duty. The letter concluded that he voluntarily quit his employment without good cause shown. Warran appealed the decision to the appeals branch, stating that he had returned to work within a week of the accident and was told by Mr. Powers to go home while he was under medical care. He was allowed to work light duty for two days. He stated that he had kept in touch with Mr. Powers by telephone and through his attorney. He had tried to return to work many times, but Mr. Powers told him there was no work for him. Warran reported that in a December 28, 2009, letter to his attorney, Mr. Powers stated that there was no light duty work available and that the work required heavy lifting and climbing.
The appeals branch referee held a hearing on March 25, 2010. Upon questioning by the referee, Warran stated that he was hired by Kentucky Building Systems as an iron worker in February 2006, and he characterized his separation from the company on November 2, 2009, as a layoff by Mr. Powers. Warran stated that Mr. Powers told him that he was afraid he would be liable if his condition worsened. He stated that the automobile accident on October 27, 2009, was not work-related. He worked the rest of the week following the accident on light duty. The referee then asked Mr. Powers several questions. Mr. Powers stated that Warran's date of hire was March 15, 2006, and that he voluntarily quit his job by abandonment. He had never received the letter from the physician regarding Warran's limitations, and he thought Warran had quit when he had not heard from him in months. He first saw the letter in the unemployment claim appeals packet. Mr. Powers stated that he was not able to accommodate Warran's job restrictions. Explaining the events of the days following Warran's accident, Mr. Powers stated:
He came back to work on Thursday morning after the wreck, [said] that he was a little sore and stuff. So he did the same job that he did the day that he was in the basket but the day before he was pulling up the sheets. On Thursday, the other guy pulled up the sheets for him because he was sore from the wreck and I let him work. Then Friday, he worked half a day doing windows. Then he had to go to a doctor's appointment concerning another medical thing he had. Then Monday morning, he called in. He didn't show up for work on Monday morning. He called in and said he was hurt from the wreck worse than he thought and had to start taking physical therapy and see the doctor again. So I told him fine. Then Tuesday morning, he came to work but he was so stiff and so sore and said he hurt so bad and that he was under a doctor's care, having to take physical therapy and on pain pills. So I told him that I couldn't work him with all of those conditions and that he would need to get a doctor's release so that I would not - so that I could work him and not be held liable. Why would I want him working there on pain pills and hurting so bad that he couldn't walk and he couldn't hardly talk? I told him to go home and take care of himself and take care of the doctors' visits.Mr. Powers then detailed his contact with Warran after that date:
On the page that I sent with the phone records, I saw him Monday the 3rd and then Friday the 6th he called right before 3:30 to see where he could pick up his paycheck. Then I tried him again on the 13th to see what was going on. Then I tried him again on the 24th and I got no answer. I called back later that day and I didn't get any answer so I left a message I needed to talk to him about his health insurance and he turned right around and called me back then. Then on December 28th, a lawyer called and asked for a letter and I included that. Then on January 11th, I got an unemployment notice where he was
filing unemployment so I tried him twice that day. That was on a Monday and as of Wednesday, the 13th when I filled out the paperwork and sent it back, he still hadn't returned my calls.Mr. Powers considered January 13, 2010, as the date Warran quit his position. On cross-examination, Mr. Powers confirmed that he told Warran he needed a full release with no restrictions from his physician before he could come back to work. He stated that he did not have any light duty work that matched his job description. Even for employees with work-related injuries, Mr. Powers stated that the company did not accommodate modified restrictions on a long-term basis. On further examination by the referee, Warran denied that he had not contacted Mr. Powers. He said there had been a couple of telephone calls, and he had gone to a job site. Warran stated that as of the date of the hearing, he had not been released without restrictions. He also indicated that Mr. Powers never told him that he considered him to have quit his job.
At the conclusion of the hearing, Warran, through his attorney, argued that he had not quit, but had been laid off, and was therefore eligible to collect benefits. Mr. Powers, in turn, stated that it was not his fault that Warran had been injured because he had left the job site against company policy to get a drink when he was involved in the accident. Mr. Powers did not want Warran to work when he returned the following week for safety reasons and because he was afraid of liability.
On April 5, 2010, the appeals branch referee issued a decision, reversing the notice of determination. The referee stated that the employer had discharged Warran on January 13, 2010, for reasons other than misconduct connected with the work and that Warran was not disqualified for benefits. Kentucky Building Systems appealed the referee's decision to KUIC, disputing Warran's factual assertions. Mr. Powers sent a letter to KUIC dated April 14, 2010, detailing the reasons he believed the referee's decision was incorrect.
On June 30, 2010, KUIC entered an order reversing the referee's decision. Its findings of fact were as follows:
The claimant was hired by the captioned employer on March 16, 2006, and served as a full-time iron worker. Claimant's job duties required heavy lifting and climbing.
On Tuesday, October 27, 2009, claimant suffered a non-work related injury in an automobile accident, wherein his personal vehicle was struck by a semi-trailer, after leaving the job site to get a Coke, after being told not to do so by his supervisor.
Claimant was off work on Wednesday, October 28, 2009. Claimant returned to work on Thursday, October 29, 2009, and worked his entire scheduled shift, but as he was sore from the wreck, another employee was allowed to perform the heavy lifting required of claimant's position.
Claimant worked one-half day on Friday, October 30, 2009, and left work to seek medical attention. Claimant was off work on Saturday, October 31, and Sunday, November 1, 2009.
The employer has no long-term light duty work available for ironworkers, if they are injured as a result of a non-
work, and therefore non-compensable Workers' Compensation injury.Having set forth the applicable facts, KUIC recognized that Kentucky Revised Statutes (KRS) 341.370(1)(c) and KRS 341.530(3) do not provide for the award of unemployment benefits when a claimant voluntarily quits suitable work without good cause attributable to the employment. KUIC determined that Warran voluntarily quit, noting that the change in his status (his diminished physical capabilities) was the proximate cause of the job separation. KUIC then addressed the effect of Warran's medical condition:
Claimant was next scheduled to work on Monday, November 2, 2009. At 6:40 a.m. that day, claimant called Mr. Powers and stated that he could not come to work because he had to see the doctor and start physical therapy, and was on pain medication. Mr. Powers advised claimant to take care of himself, and that he would need to provide a doctor's release to full duty, prior to returning to work.
Claimant did not, and has not through the date of hearing provided a medical release to return to full duty. On December 10, 2009, claimant's physician provided claimant with a note stating: "In my opinion he will, for the foreseeable future, be unable to perform what has been described to me as the typical duties of a steel worker. He may be able to perform light office duties with frequent breaks." Claimant did not provide a copy of this note to Mr. Powers.
Prior to the filing of claimant's claim on February 1, 2010, and through the date of the hearing of this matter, claimant has not been given a medical release to full duty.
[I]f a medical condition is asserted as a relevant factor in the job separation, its existence as well as its connection
to the employment must also be shown by 'substantial evidence' before a ruling in favor of the worker may be sustained.KUIC found that Warran had not proven by substantial evidence that his diminished physical capabilities were the result of a work-related injury. Therefore, his "good cause for quitting has not been shown to be attributable to the employment with the captioned employer." For that reason, Warran was disqualified from receiving unemployment benefits. KUIC ordered Warran to repay to the Division $9,147.00 in benefits he received that constituted an overpayment.
Without any evidence that attributes claimant's diminished physical condition to his work, it cannot be found that the injury was work related.
On July 20, 2010, Warran filed a verified complaint in the Hancock Circuit Court pursuant to KRS 341.450 to appeal KUIC's decision. After the parties filed their respective briefs, the matter stood submitted for a decision. The circuit court entered an order on April 11, 2013, finding that KUIC's findings of fact were supported by substantial evidence of record and that it correctly applied the law to the case. Therefore, it affirmed KUIC's decision, and this appeal now follows.
On appeal, Warran argues that Kentucky Building Systems initiated his termination for reasons beyond his control and that he did not voluntarily quit his employment. He also asserts that KUIC incorrectly applied the coming and going rule and the positional risk doctrine in reaching its decision. KUIC, in turn, argues that the record establishes that Warran voluntarily left his employment. It also argues that the coming and going rule does not apply in unemployment insurance cases, as it is unique to workers' compensation law.
Before we reach the merits of Warran's appeal, we shall address an issue we have identified with the certified record on appeal. The same day he filed his notice of appeal to this Court, Warran also filed a Kentucky Rules of Civil Procedure (CR) 60.02 motion based upon new evidence and gross injustice. The basis of his motion was related to the workers' compensation action that he filed as a result of his injury in the same automobile accident he described in his unemployment insurance claim. Warran attached copies of the Administrative Law Judge's (ALJ) interlocutory order addressing whether his injury occurred in the course and scope of his employment as well as the ALJ's order ruling on a petition for reconsideration. This appeal was abated for a short time to permit the circuit court to rule on the pending CR 60.02 motion, and the motion was denied on April 4, 2014. It does not appear that Warran chose to appeal that ruling.
Additionally, in his designation of record for this appeal, Warran designated for inclusion the ALJ's rulings that formed the basis for his CR 60.02 motion. KUIC objected to Warran's designation of record before the circuit court, arguing that the record should be limited to the certified administrative record pursuant to KRS 341.450, and his attempt to include additional items was not permitted. The circuit court granted this motion on July 5, 2013. However, we note that the circuit court clerk certified the record on June 12, 2013, prior to the circuit court's ruling. Furthermore, the ALJ's rulings, which were to be excluded from the record, were in fact included in the certified record received by the Court in this case. The same ALJ rulings, and we presume the CR 60.02 motion, were the subject of KUIC's motion to strike Warran's brief to this Court. This Court granted KUIC's motion, stating:
Appellant's brief fails to demonstrate that exhibits B, C, and D are part of the certified administrative record from the Commission. In unemployment benefit cases such as the one at issue, courts have no authority to consider evidence outside this administrative record or to incorporate new proof into the record. Travelodge Intern., Inc. v. Kentucky Unemployment Ins. Com'n, 710 S.W.2d 232, 234 (Ky. App. 1986). Because appellant has failed to show that the exhibits in question - which pertain to a separate workers' compensation claim failed by the appellant - were part of the certified administrative record considered by the Commission and the circuit court in this case, they must be stricken.The Court concluded that Warran's brief had relied too heavily on the exhibits in question and therefore ordered the brief stricken with leave to refile a brief "that cites to and relies solely upon the certified administrative record." Warran refiled his brief pursuant to the Court's order.
Based upon both the circuit court's and this Court's respective rulings, we shall not consider Warran's CR 60.02 motion or the ALJ's rulings in the workers' compensation action for purposes of this appeal.
Similarly, we decline to consider Warran's arguments in his brief related to the coming and going rule and the positional risk doctrine. Both of these arguments are based upon workers' compensation law and rest upon Warran's claim that he was within the course and scope of his employment when he was injured. As KUIC argues, Warran conceded below that his injury was not related to his work for Kentucky Building Systems, and whether he was injured on the job was never raised or litigated below. In his brief before the circuit court, Warran stated that he "suffered a non-work related injury when he left the worksite to get a soft drink and the vehicle he was driving was struck by another vehicle." (Emphasis added). Because he did not raise these arguments below, Warran is precluded from doing so in the present appeal.
[A] review of Taylor's filings in the circuit court and the Court of Appeals discloses that he did not raise this issue in either of those forums. Further, it is well settled that a party may not raise an issue for the first time on appeal. See Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976) (overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010)). Because this argument is in violation of this well-established rule, we are unable to consider this issue on the merits.Taylor v. Kentucky Unemployment Ins. Com'n, 382 S.W.3d 826, 835 (Ky. 2012).
We shall now consider Warran's remaining arguments. Our standard of review in administrative appeals is well-settled in the Commonwealth:
Judicial review of a decision of the Kentucky Unemployment Insurance Commission is governed by the general rule applicable to administrative actions. "If the findings of fact are supported by substantial evidence of probative value, then they must be accepted as binding and it must then be determined whether or not the administrative agency has applied the correct rule of law to the facts so found." Southern Bell Tel. & Tel. Co. v. Kentucky Unemployment Ins. Comm'n, 437 S.W.2d 775, 778 (Ky. 1969) (citing Brown Hotel Co. v. Edwards, 365 S.W.2d 299 (Ky. 1962)). Substantial evidence has been
defined as evidence which has sufficient probative value to induce conviction in the minds of reasonable people. Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972). If there is substantial evidence in the record to support an agency's findings, the findings will be upheld, even though there may be conflicting evidence in the record. Kentucky Comm'n on Human Rights v. Fraser, 625 S.W.2d 852, 856 (Ky. 1981). An agency's findings are clearly erroneous if arbitrary or unsupported by substantial evidence in the record. Id. If the reviewing court concludes the rule of law was correctly applied to facts supported by substantial evidence, the final order of the agency must be affirmed. Brown Hotel Co., 365 S.W.2d at 302.Kentucky Unemployment Ins. Com'n v. Cecil, 381 S.W.3d 238, 245-46 (Ky. 2012). "A court's function in administrative matters is one of review, not reinterpretation." Thompson v. Kentucky Unemployment Ins. Com'n, 85 S.W.3d 621, 624 (Ky. App. 2002) (footnote omitted). "The fact that a reviewing court may not have come to the same conclusion regarding the same findings of fact does not warrant substitution of a court's discretion for that of an administrative agency." Kentucky Unemployment Ins. Com'n v. Landmark Community Newspapers of Kentucky, Inc., 91 S.W.3d 575, 582 (Ky. 2002) (citation omitted).
In KRS 341.370, the General Assembly set forth when a worker is disqualified from collecting unemployment insurance benefits, and the statute provides, in relevant part, as follows:
(1) A worker shall be disqualified from receiving benefits for the duration of any period of unemployment with respect to which:
. . .
In the present case, there is no dispute that Warran was not discharged for misconduct. Rather, the question to be considered is whether Warran voluntarily left his employment with Kentucky Building Systems without good cause attributable to his employment pursuant to KRS 341.370(1)(c).(b) He has been discharged for misconduct or dishonesty connected with his most recent work, or from any work which occurred after the first day of the worker's base period and which last preceded his most recent work, but legitimate activity in connection with labor organizations or failure to join a company union shall not be construed as misconduct; or
(c) He has left his most recent suitable work or any other suitable work which occurred after the first day of the worker's base period and which last preceded his most recent work voluntarily without good cause attributable to the employment. . . .
Warran's first argument is that he was discharged for reasons beyond his control, citing Kentucky Unemployment Ins. Comm'n v. Henry Fischer Packing Co., 259 S.W.2d 436 (Ky. 1953). He stated that he had presented medical documentation indicating that he could perform some, but not all, of the work his position entailed, but his employment was nevertheless terminated. KUIC argues that Fischer Packing is not applicable in the present case, as that Court was addressing a separate question; namely, whether the claimant was available for suitable work, not the cause of his separation, which is the question in the present case. Therefore, we agree with KUIC that this argument is without merit.
Warran's next argument is that he did not initiate the separation, stating that he attempted to return to work multiple times and that his employer had demanded a medical release. KUIC argues that the evidence of record establishes that Warran never provided a medical release to Kentucky Building Systems and that while the record does contain a doctor's note stating that he could perform light duty work, this note was never received by his employer. In addition, KUIC disputes Warran's argument that he had attempted to return to work based upon his lack of communication with Mr. Powers as well as his failure to provide a release.
Warran has the burden to establish that he is eligible for unemployment insurance benefits: "The burden was on [the claimant] to establish her claim by proving eligibility under KRS 341.350. Further, it was a necessary part of establishing her claim to carry the burden of proving that she did not quit voluntarily without good cause attributable to her employment under KRS 341.530(3)." Broadway & Fourth Ave. Realty Co. v. Allen, 365 S.W.2d 302, 304 (Ky. 1962) (internal citations omitted). See also Brownlee v. Commonwealth, 287 S.W.3d 661, 664 (Ky. 2009). In Allen, the former Court of Appeals addressed whether unemployment benefits were available for a claimant's inability to work due to a non-work-related injury:
The quitting of a job by a woman for the purpose of joining her husband at a distant place is not 'good cause attributable to the employment' and was held to preclude charging any benefits paid to the employer's reserve account. Unemployment Insurance Commission v. Cochran Foil Company, Ky., 331 S.W.2d 903. To the same effect, see Kentucky Unemployment Insurance
Commission v. Kroehler Manufacturing Company, Ky., 352 S.W.2d 212, wherein it was held that retirement under a voluntary system precluded charging the employer's reserve account.
Other courts have been strict in construing similar [statutes]. An employee who left her employment because of her pregnancy was barred from receiving any benefits. It was held that she left without good cause attributable to the employment or the employer. John Morrell & Company v. Unemployment Compensation Commission, 69 S.Dak. 618, 13 N.W.2d 498. Benefits were denied an employee when he had to quit work because of colds. It was pointed out that 'unemployment compensation is in no sense sick benefits.' Brown-Brockmeyer Company v. Board of Review, 70 Ohio App. 370, 45 N.E.2d 152. Unless the ill health or physical infirmity is shown to have resulted from the employment, the employee is disqualified from receiving benefits when he voluntarily leaves his employment on such account. The cause of the quitting must have been connected with the work. Henderson v. Department of Industrial Relations, 252 Ala. 239, 40 So.2d 629. In that case, the claim was filed two days after the employment ended. In State v. Hix, 132 W.Va. 516, 54 S.E.2d 198, three employees left work because of a bladder condition, hypertension, and the possibility of contracting tuberculosis because of dust conditions, respectively. In pointing out that the employers were not at fault in connection with the circumstances which caused claimants to cease work, it was said:
'In whatever way we view this case, claimants are not entitled to benefits. If they were ill and unable to work, they were not eligible to work, and, therefore, not entitled to benefits. If they were eligible to work by reason of being able for full time work, they were disqualified under Section 4(1) of the statute.'
See also Wolpers v. Unemployment Compensation Commission, 353 Mo. 1067, 186 S.W.2d 440; Zielinski v.
Unemployment Compensation Board of Review, 174 Pa.Super. 244, 101 A.2d 419.Allen, 365 S.W.2d at 305.
The substantial evidence of record in the unemployment insurance case establishes that Warran's inability to work did not arise from his employment because his accident was not related to his work, and it was his own actions that brought about the separation from employment. Therefore, Warran was disqualified from receiving benefits because he voluntarily quit without good cause attributable to the employment. The circuit court did not commit error in affirming KUIC's order.
For the foregoing reasons, the order of the Hancock Circuit Court is affirmed.
JONES, JUDGE, CONCURS.
ACREE, CHIEF JUDGE, CONCURS AND FILES SEPARATE OPINION.
ACREE, CHIEF JUDGE, CONCURRING: I concur with the majority. However, I do not agree with KUIC that the going-and-coming rule is unique to Workers' Compensation jurisprudence. It is not.
The rule has been found useful in analyzing the scope-of-employment question preliminary to determining whether an employer is vicariously liable for an employee's negligent operation of an automobile. See, e.g., Collins v. Appalachian Research and Defense Fund of Kentucky, Inc., 409 S.W.3d 365, 369 (Ky. App. 2012); Christopher Vaeth, Annotation, Employer's Liability for Negligence of Employee in Driving His or Her Own Automobile, 27 A.L.R.5th 174, § 3 (originally published in 1995) (citing several Kentucky cases in various sections of this annotation); see also Kuerner v. National Cash Register Co., 43 F.Supp. 62, 63 (D.C.Ky. 1942) (citing four Kentucky state court opinions applying the concept without naming the rule).
The majority does not expressly agree with KUIC's contention that the rule is exclusive to workers' compensation law. I write separately only to clarify my view that no such implication should be drawn from the opinion. BRIEF FOR APPELLANT: Daniel Caslin
Owensboro, Kentucky
BRIEF FOR APPELLEE,
KENTUCKY UNEMPLOYMENT
INSURANCE COMMISSION:
Amy F. Howard
Frankfort, Kentucky