Dee Whitaker Concrete v. Austin Ellison

RENDERED: JANUARY 22, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0639-WC
DEE WHITAKER CONCRETE APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-17-66423
AUSTIN ELLISON; HONORABLE
RICHARD E. NEAL,
ADMINISTRATIVE LAW JUDGE; APPELLEES
AND WORKERS’ COMPENSATION
BOARD
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES.
DIXON, JUDGE: Dee Whitaker Concrete petitions for review of the Workers’
Compensation Board (Board) opinion entered on April 10, 2020, affirming the
interlocutory opinion and order, as well as the opinion, award, and order entered on
August 7, 2018, and December 9, 2019, respectively, by Administrative Law Judge
(ALJ) Richard E. Neal. Following review of the record, briefs, and law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Austin Ellison worked as a general laborer for Dee Whitaker
Concrete. The work crew met each morning at the garage1 owned by Forrest
“Dee” Whitaker, owner of Dee Whitaker Concrete, to discuss assignments, load
trucks, and carpool to the jobsite. On the morning of August 4, 2017, Ellison
carpooled with Casey Whitaker—Dee’s son—in Casey’s truck. They completed
all the work they could before it began to rain and decided to stop to eat lunch at a
restaurant before returning to the garage. Ellison fell asleep soon after they left the
jobsite. Unfortunately, they were involved in a motor vehicle accident (MVA)
before reaching the restaurant. Ellison, who was not wearing a seatbelt, was
ejected from the vehicle through its windshield. He was airlifted to University of
Kentucky Chandler Medical Center.
On November 20, 2017, Ellison filed a Form 101, Application for
Resolution of a Claim-Injury, alleging work-related injuries from the MVA
described above. Dee Whitaker Concrete denied Ellison’s claims, asserting the
1
The garage is large and contained the office, work trucks, and concrete tools used by Dee
Whitaker Concrete.
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injuries were not work-related under KRS2 342.650(7), since he was carpooling at
the time of the accident. On August 7, 2018, the ALJ issued an interlocutory
opinion and order finding the Act3 applicable to the claim because Ellison
sustained injuries in the scope of his employment because he fell within the
traveling employee and service to the employer exceptions to the “going and
coming” rule. A benefit review conference was held on October 10, 2019, and on
December 9, 2019, the ALJ rendered the opinion, award, and order awarding
certain temporary total disability benefits, permanent partial disability benefits, and
medical benefits to Ellison. No petition for reconsideration was filed. Instead,
Dee Whitaker Concrete appealed the ALJ’s orders to the Board, which affirmed
the ALJ, and this appeal followed.
STANDARD OF REVIEW
The appropriate standard of review for workers’ compensation claims
was summarized in Bowerman v. Black Equipment Company, 297 S.W.3d 858,
866-67 (Ky. App. 2009).
Appellate review of any workers’ compensation
decision is limited to correction of the ALJ when the ALJ
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, 687-88 (Ky.
2
Kentucky Revised Statutes.
3
KRS Chapter 342, known as the Workers’ Compensation Act (Act).
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1992). Our standard of review differs in regard to
appeals of an ALJ’s decision concerning a question of
law or a mixed question of law and fact vis-à-vis an
ALJ’s decision regarding a question of fact.
The first instance concerns questions of law or
mixed questions of law and fact. 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, our standard of review is
de novo. Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky.
App. 2001); Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky.
App. 1998). . . .
The second instance concerns questions of fact.
[Kentucky Revised Statutes (KRS)] 342.285 designates
the ALJ as finder of fact, and has been construed to mean
that the factfinder has the sole discretion to determine the
quality, character, weight, credibility, and substance of
the evidence, and to draw reasonable inferences from the
evidence. Paramount Foods, Inc. v. Burkhardt, 695
S.W.2d 418, 419 (Ky. 1985); [McCloud v. Beth-Elkhorn
Corp., 514 S.W.2d 46, 47 (Ky. 1974)]. . . .
KRS 342.285 also establishes a “clearly
erroneous” standard of review for appeals concerning
factual findings rendered by an ALJ, and is determined
based on reasonableness. Special Fund v. Francis, 708
S.W.2d 641, 643 (Ky. 1986).
Id.“GOING AND COMING” RULE
The “going and coming” rule pertaining to coverage under the Act is
well-established. It has been defined by Kentucky’s highest court, stating:
The general rule is that injuries sustained by workers
when they are going to or returning from the place where
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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. See Kaycee Coal Co. v. Short, [450
S.W.2d 262 (Ky. 1970)].
Receveur Const. Co./Realm, Inc. v. Rogers, 958 S.W.2d 18, 20 (Ky. 1997).
However, this rule—like many others—is not without exceptions, two of which the
ALJ found applicable.
Here, the accident occurred after Ellison left the jobsite with the work
crew but before they reached the restaurant on the way back to Whitaker’s garage.
The ALJ found, and the Board affirmed, that Ellison fell within the traveling
employee and service to the employer exceptions to the “going and coming” rule.
We agree, for the reasons discussed below.
TRAVELING EMPLOYEE EXCEPTION
The traveling employee exception to the “going and coming” rule is
well-settled. Kentucky’s highest court at the time observed the following
concerning this exception:
It is quite a different thing to go to and from a work site
away from the regular place of employment, than it is to
go to and from one’s home to one’s usual place of
employment; it is the latter which generally comes within
the so-called ‘going and coming rule’ absolving
employers from Workmen’s Compensation liability. The
former comes within the principle stated in Larson,
Workmen’s Compensation Law, Vol. 1, Sec. 25.00:
‘Employees whose work entails travel away from the
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employer’s premises are held in the majority of
jurisdictions to be within the course of their employment
continuously during the trip, except when a distinct
departure on a personal errand is shown. Thus, injuries
arising out of the necessity of sleeping in hotels or eating
in restaurants away from home are usually held
compensable.’ [Turner Day & Woolworth Handle Co. v.
Pennington, 250 Ky. 433, 63 S.W.2d 490 (Ky. 1933);
Standard Oil Co. v. Witt, 283 Ky. 327, 141 S.W.2d 271(Ky. 1940).]
Although traffic perils are ones to which all travelers are
exposed, the particular exposure of Tichenor in the case
at bar was caused by the requirements of his employment
and was implicit in the understanding his employer had
with him at the time he was hired. [Palmer v. Main, 209
Ky. 226, 272 S.W. 736 (Ky. 1925); Hinkle v. Allen
Codell Co., 298 Ky. 102, 182 S.W.2d 20 (Ky. 1944).] In
the recent case of [Corken v. Corken Steel Prod.’s, Inc.,
385 S.W.2d 949 (Ky. 1964)], where a traveling salesman
was killed on a public street by a demented stranger, we
approved an award of compensation, and said:
‘We accept the view that causal connection is
sufficient if the exposure results from the
employment. * * * Corken’s employment was the
reason for his presence at what turned out to be a
place of danger, and except for his presence there
he would not have been killed.’
Black v. Tichenor, 396 S.W.2d 794, 796-97 (Ky. 1965).
In its interlocutory order, the ALJ found Ellison’s work required
travel away from Dee Whitaker Concrete’s premises—the garage where employees
met each day to carpool to various jobsites. Just as in Tichenor, it was implicit in
the understanding between Ellison and Dee Whitaker Concrete that travel would be
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required. It was during this work-required travel that Ellison was placed in danger;
thus, his injury was work-related and covered by the Act. The ALJ also correctly
determined that the intent of the employees to stop at a restaurant on the way back
to the garage did not constitute a distinct departure sufficient to defeat the traveling
employee exception to the “going and coming” rule.
Dee Whitaker Concrete contends the traveling employee exception
does not apply herein because “that status applies only to employees whose work
entails travel away from their usual place of employment.” However, in Olsten-
Kimberly Quality Care v. Parr, 965 S.W.2d 155, 157 (Ky. 1998), the court
observed:
Even more appropriate to the case at bar is the idea that
“[w]hen travel is a requirement of employment and is
implicit in the understanding between the employee and
the employer at the time the employment contract was
entered into, then injuries which occur going to or
coming from a work place will generally be held to be
work-related and compensable, except when a distinct
departure or deviation on a personal errand is shown.”
William S. Haynes, Kentucky Jurisprudence, Workers’
Compensation, § 10-3 (revised 1990). Also see
[Tichenor, 396 S.W.2d 794, and Handy v. Kentucky State
Highway Dep’t, 335 S.W.2d 560 (Ky. 1960)].
Here, it is undisputed that travel was a requirement of Ellison’s employment as the
crew daily performed work away from Whitaker’s garage. We agree with the
ALJ’s reliance on and application of Parr to the claim herein. We also note that
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any failure of the Board to specifically affirm the ALJ on this issue is of no
consequence as it affirmed the ALJ’s orders in toto.
SERVICE TO THE EMPLOYER EXCEPTION
Kentucky’s highest court described the service to the employer
exception, simply stating:
transitory activities of employees are covered if they are
providing some service to the employer[.] See Standard
Gravure Corp. v. Grabhorn, [702 S.W.2d 49 (Ky. App.
1985)]; Spurgeon v. Blue Diamond Coal Co., [469
S.W.2d 550 (Ky. 1971)]; Ratliff v. Epling, [401 S.W.2d
43 (Ky. 1966)]; [Palmer, 209 Ky. 226, 272 S.W. 736].
Receveur, 958 S.W.2d at 20. Although this exception is stated in simple terms, its
application is fact dependent, varying case-by-case or claim-by-claim.
In the claim herein, the ALJ also found the service to the employer
exception to the “going and coming” rule applicable. The ALJ determined:
Reading the testimony as a whole, the travel was clearly
a service to the Defendant. By traveling together, the
Defendant was able to ensure that its employees would
get to the jobsite on time and as a group. The timeliness
of the employee’s arrival was essential because their
arrival was coordinated with the arrival of the concrete.
Further, the type of work performed, specifically the
pouring of concrete, appears to [be] more effectively
performed when all workers arrive at the same time—as
opposed to filtering in one by one.
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(ROA,4 p. 371). The determination that Ellison’s carpooling was of benefit or
service to Dee Whitaker Concrete is a finding of fact, not a conclusion of law.
Howard D. Sturgill & Sons v. Fairchild, 647 S.W.2d 796, 798 (Ky. 1983). “It is
well settled that findings of fact will not be disturbed on appeal if they are
supported by evidence of probative value. The reviewing court must not substitute
its judgment for that of the finder of fact.” Id. Substantial evidence by way of
deposition and hearing testimony supports this finding; accordingly, it will not be
disturbed here.
Dee Whitaker Concrete argues the claim herein is factually and
legally distinguishable from Receveur because that case involved an employee who
was operating a company-owned vehicle at the time of the accident. In contrast,
Dee Whitaker Concrete points out that it did not own the vehicle in which Ellison
was transported at the time of the MVA. Nevertheless, the ALJ correctly assessed
that ownership of the vehicle is not the lynchpin of the analysis in Receveur. See
Parr, 965 S.W.2d at 156, in which “the employer did not furnish such to its
workers as part of the employment relationship,” but the court nonetheless found
the service to the employer exception applicable. The key question is whether the
activity benefits the employer. Thus, although the use of carpooling to and from
jobsites was a convenience for Ellison, the ALJ did not err in its determination that
4
Record on appeal.
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it was primarily of benefit to the employer for the reasons stated in its opinion,
including those quoted above. Receveur, 958 S.W.2d at 21.
Dee Whitaker Concrete contends the case herein is more similar to
Brown v. Owsley, 564 S.W.2d 843 (Ky. App. 1978). That case was considered by
the court in Receveur, which described its facts and holding as “co-workers who
carpool without the knowledge or acquiescence of the employer are not providing
a service to the employer[.]” Receveur, 958 S.W.2d at 20. Here, by contrast, the
workers carpooled with the full knowledge, acquiescence, and encouragement of
their employer. Dee testified that he often provided vehicles and gas to defray the
cost of transportation and encouraged the morning meetings and carpooling to
ensure the workers arrived on time and together. Returning to the initial meeting
point is a natural and necessary consequence of such carpooling. The ALJ did not
err in perceiving these key factual differences between Brown and the case herein
and applying the service to employer exception based on the facts of this case.
Dee Whitaker Concrete further contends the Board erred by
“misconstruing controlling precedent[.]” We will address each of the cases
discussed by Dee Whitaker Concrete in turn.
In Fortney v. Airtran Airways, Inc., 319 S.W.3d 325, 329 (Ky. 2010),
the court held “[t]he fact that an employer uses transportation or transportation
expense as an inducement to accept or continue employment is material to
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supporting compensability, particularly when the journey is sizeable and when the
employer pays all or substantially all of the expense.” Here, the commute to the
jobsite was significant, and the expense was largely borne by Dee Whitaker
Concrete through its provision of vehicles and/or gas. Therefore, we cannot say
that an overview and comparison to Fortney by the Board was error.
In Farris v. Huston Barger Masonry, Inc., 780 S.W.2d 611 (Ky.
1989), the employer had knowledge of, supported the practice of, and benefitted
from its employees carpooling. In that case, the court held that since the
coworkers were running an errand and, thus, providing a service for the employer
during the time in question, their injuries were work-related. In the case herein,
Dee Whitaker Concrete also had knowledge of, supported the practice of, and
benefitted from its employees carpooling. Although the coworkers were not
running an errand, they were still providing a service for the employer at the time
of the MVA. Therefore, the ALJ and Board did not err in determining that
Ellison’s injuries were work-related. Again, we cannot say that an overview and
comparison to Farris by the Board was error.
In State Highway Commission v. Saylor, 252 Ky. 743, 68 S.W.2d 26(Ky. 1933), the court held:
notwithstanding the fact that the employer was not
obliged to furnish the worker transportation and that the
pay of the worker started only when he began his work at
the actual job site, the practice of the employer to convey
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its employees to the job site was clearly in the interest of
the employer as it enabled the workers to begin work
sooner without being hindered by the distances between
the job sites and their residences; hence, there was an
implied contract that the employer would transport this
worker and that such would be considered part of the
employment contract.
Receveur, 958 S.W.2d at 20. We agree with Dee Whitaker Concrete that the
discussion and comparison of Saylor to the case herein is essentially irrelevant.
However, this superfluous discussion constitutes nothing more than harmless error,
if any.
The Board also cites Parr, 965 S.W.2d 155, which we find relevant to
the analysis of the service to the employer exception in this claim—particularly
because the means of conveyance were not supplied by the employer in either case.
Therefore, the Board’s citation to this case was not erroneous.
In Louisville & Jefferson County Air Board v. Riddle, 301 Ky. 100,
103, 190 S.W.2d 1009, 1011 (1945), the court observed:
There are certain exceptions to the ‘going and coming’
rule which are pointed out by Mr. Schneider in the above
reference, but these have no application here. [See Voehl
v. Indem. Ins. Co. of North Am., 288 U.S. 162, 53 S.Ct.
380, 77 L.Ed. 676, 87 A.L.R. 245, and the annotations
thereto at 250.]
The facts in each particular case must be examined to
determine whether or not the relation of master and
servant exists at the place and time of the injury, Turner,
Day & Woolworth Handle Co. v. Pennington, 250 Ky.
433, 63 S.W.2d 490.
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Dee Whitaker Concrete is correct that Riddle is factually distinguishable from the
case herein because it concerned an injury that occurred on the employer’s
premises. However, the Board did not err in citing to Riddle as a starting point for
the initial inquiry of whether an exception is applicable to the “going and coming
rule” and for the rule that such depends on the facts of the case. Accordingly, the
Board did not err in citing to Riddle.
CONCLUSION
For the foregoing reasons, the Opinion of the Workers’ Compensation
Board is AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE AUSTIN
ELLISON:
James G. Fogle
Louisville, Kentucky James R. Martin II
Lexington, Kentucky
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