DONALD RAY PHILLIPS v. JENMAR, INC. D/B/A DESIGNER MARBLE; HON. DENIS S. KLINE, ADMINISTRATIVE LAW JUDGE; AND THE WORKERS' COMPENSATION BOARD

 Annotate this Case
Download PDF
RENDERED: January 29, 1999; 10:00 a.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 1997-CA-001311-WC DONALD RAY PHILLIPS APPELLANT PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-95-38400 v. JENMAR, INC. D/B/A DESIGNER MARBLE; HON. DENIS S. KLINE, ADMINISTRATIVE LAW JUDGE; AND THE WORKERS' COMPENSATION BOARD APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: DYCHE, JOHNSON, AND KNOPF, JUDGES. JOHNSON, JUDGE: Donald Ray Phillips (Phillips) petitions this Court for review of a May 30, 1997 opinion of the Workers’ Compensation Board (Board) which affirmed the Administrative Law Judge’s (ALJ) opinion dismissing his claim. The ALJ determined that when Phillips was injured he was not working in the course and scope of his employment. Having concluded that the evidence does not compel a finding in Phillips’ favor, we affirm. On Friday, August 18, 1995, Phillips sustained injuries while at his place of employment, Jenmar, Inc., d/b/a Designer Marble (Designer Marble), where he had worked since 1990. On August 21, 1996, Phillips filed a workers’ compensation claim. hearing was held on February 5, 1997. A The dispute in this case concerns whether Phillips was properly on the premises of his employer and in the course and scope of his employment when he was injured. It is undisputed that Phillips had been suffering from an alcohol problem and that a few days prior to his injury he decided to quit drinking. On August 17, 1995, the day before the injury, the owner and general manager of the business, Joseph Kirtley Martin (Martin), observed Phillips’ hands shaking uncontrollably. Martin testified that he told Phillips not to come to work the next day, but instead to see if he felt better the following Monday, and if so, to return to work on Monday. In contrast, Phillips denied being told not to report to work on August 18. It is undisputed that Phillips arrived at Designer Marble on August 18 before 8:00 a.m., and that shortly after 8:00 a.m., Phillips climbed a tall production rack to retrieve a marble mold when his hands began shaking and he fell from the rack landing on the concrete floor and hitting his head on a steel rack. He suffered a severe head injury and a broken right wrist and has not worked since the injury. Phillips admitted that he had quit drinking just a few days prior to the accident and that he had suffered from delirium tremens, a symptom of withdrawal from alcohol. He admitted that Martin’s secretary, Terri Simpson (Simpson), took him to the Lexington Clinic at Martin’s request and that the doctor told him -2- his health problems were alcohol-related. He testified that he spoke to Simpson when he arrived at Designer Marble on the morning of August 18. He stated that she knew he was at work and that she could have sent him home if he was not supposed to be there. Phillips testified that he fell from the rack when he was twelve feet off the ground. Ronald Phillips, Donald’s older brother, testified that he heard Simpson tell Brenda Steel, Phillips’ sister, that Simpson was in the office that morning and that she allowed Phillips to work even though he was pale and shaken. Brenda Steel also testified that Simpson made those statements. Carl Hamon, one of Phillips’ co-workers at Designer Marble, testified that Martin was on the production floor when Phillips fell. Martin testified that on August 14, before the accident on August 18, that Phillips came to work in shorts and had large black bruises on both knees. Martin testified that he asked Phillips about the bruises, but Phillips could not tell him how he received them. On August 16, Phillips showed Martin his midriff which was covered with bruises. Martin told Phillips he needed to go to the doctor to find out what was wrong. Simpson got Phillips a doctor’s appointment for August 21, but on August 17, Phillips came to work and complained that he had been up all night sick. Martin testified that Phillips looked very bad and he told Simpson to take Phillips to the emergency room, which she did. When they returned, Phillips and Simpson told Martin that his health problems were alcohol-related. Martin saw Phillips’ hands shaking and drawing up and he told Phillips to stay home on -3- August 18, eat some good food, and not to drink alcohol. Martin said he thought Phillips might be able to return to work on August 21. Martin testified that Phillips remained in the break room until someone came to get him. Martin testified that when he arrived at work on August 18, he saw Phillips with a “death grip” on a tall production rack and shaking badly. He testified that before he had time to say anything, Phillips fell backwards from approximately four feet off the ground and was injured. Simpson testified that she saw bruises all over Phillips’ legs on August 14. She said that Phillips said he did not know how he received the bruises because he claimed he had not hit or been hit by anything. By August 16, the bruises worsened and Martin asked Simpson to make a doctor’s appointment for Phillips. The appointment was for August 21, and Martin told Simpson to go ahead and take Phillips to the emergency room. Simpson took Phillips to the emergency room and stayed with him for the examination. She testified that the doctor told Phillips that his health problems were alcohol-related and he needed to quit drinking. Simpson testified that Phillips came in the following day, August 17, and proudly told her that he had quit drinking. He stated that he was sick from not being able to eat and Martin told him to not work, but to go to the break room to wait for a ride home. Simpson stated that Phillips returned to the production floor to work and she told Martin. Martin had Simpson to remove Phillips from the production floor and to stay with him in the break room until he was able to leave. Simpson stated that Martin came into the break room before he left for -4- the day and told Phillips and another injured worker not to report to work on the next day, August 18. Simpson testified that on the morning of August 18, she was talking on the telephone when she saw that Phillips was at work. She testified that she had no authority to override Martin’s order concerning Phillips not working because Martin owned the business. Simpson denied making the statements Ronald Phillips and Brenda Steel attributed to her. Jeff Ball, another Designer Marble employee who was in the break room with Phillips because he had back and foot injuries, testified that Martin told both Phillips and him not to report to work on August 18. In an opinion dated March 14, 1997, that dismissed Phillips’ claim, the ALJ stated as follows: This entire case revolves around the credibility of the witnesses, and I found the testimony of the witnesses presented on behalf of [Designer Marble] to be more credible. I will specifically conclude that Mr. Phillips was advised by his employer, Mr. Martin, not to report to work on Friday, August 18, 1995, due to his physical problems related to alcohol abuse. I will further conclude that [Phillips] disregarded this direct order and reported to the plant on the morning of August 18, 1995[,] in direct contravention of that order. I am not convinced that Ms. Terri Simpson ever saw [Phillips] the morning before he fell and, even if I were to conclude that she had, I am not convinced that she had either the apparent or actual authority to stop [Phillips] from entering the plant. I am not convinced that Mr. Martin had any opportunity to stop Mr. Phillips from reporting to work. I found his testimony to be credible, and believe that he arrived at the plant just in -5- time to see [Phillips] hanging from the rack, shaking. My conclusion is that Mr. Donald Ray Phillips was not in the course and scope of his employment when he was injured on the morning of August 18, 1995. His claim for benefits under the Kentucky Compensation Act will be dismissed. Phillips filed a petition for reconsideration on March 19 and argued that the ALJ should reconsider his opinion and award benefits subject to a 15% reduction of benefits pursuant to Kentucky Revised Statutes (KRS) 342.165(1).1 Phillips sought a further finding “that Plaintiff was told on Thursday not to come back to work Friday but wait until the following Monday, because of Plaintiff’s alcohol problem, and at no time discharged.” The ALJ entered the finding Phillips requested, but refused to otherwise alter his previous opinion. Phillips appealed the ALJ’s dismissal to the Board. Phillips argued that “Joe Martin had actual authority and Terry [sic] Simpson had apparent authority to allow Donald Phillips to work, and employer is estopped to deny permission to work and serious work injury accident from head and wrist injuries by fall from a rack when employer failed to provide a ladder, and ALJ 1 This statute provides in pertinent part as follows: . . . If an accident is caused in any degree by the intentional failure of the employee to use any safety appliance furnished by the employer or to obey any lawful and reasonable order or administrative regulation of the commissioner or the employer for the safety of employees or the public, the compensation for which the employer would otherwise have been liable under this chapter, shall be decreased fifteen percent (15%) in the amount of each payment. -6- clearly erred finding otherwise.” Phillips argued that there was no evidence to support the ALJ’s finding that Simpson was only a secretary and that Martin was in full control. Phillips argued that it was undisputed that Simpson was in charge when Martin was not there. The Board affirmed the ALJ’s decision and this petition for review followed. We review this case under the standards set forth in Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685 (1992), wherein the Supreme Court stated that “[t]he 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 justice.” Id. at 687-688. The Board pointed out in its well-written opinion that there was sufficient evidence to support the ALJ’s findings and that the evidence did not compel a finding in Phillips’ favor. We adopt portions of the Board’s opinion as our own as follows: It is well-settled that the claimant in a workers’ compensation claim bears the burden of proving each essential element of his claim. Snawder v. Stice, Ky.App., 576 S.W.2d 276 (1979). Where the party that bears the burden of proof is unsuccessful before the ALJ, the question on appeal is whether the evidence compels a contrary finding. Wolf Creek Collieries v. Crum, Ky.App., 673 S.W.2d 735 (1984). Compelling evidence is defined as evidence which is so overwhelming that no reasonable person could reach the same conclusion as the ALJ. REO Mechanical v. Barnes, Ky.App., 691 S.W.2d 224 (1985). Is it [sic] not enough for Phillips to show that there is merely some evidence which would support a different conclusion. McCloud v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46 -7- (1974). As long as the ALJ’s opinion is supported by any evidence of substance, it cannot be said that the evidence compels a different result. Special Fund v. Francis, Ky., 708 S.W.2d 641 (1986). The ALJ, as fact-finder, has the sole authority to determine the weight, credibility, substance, and inferences to be drawn from the evidence. Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985). Where the evidence is conflicting, the ALJ may choose whom and what to believe. Pruitt v. Bugg Brothers, Ky., 547 S.W.2d 123 (1977). The ALJ may choose to believe parts of the evidence and disbelieve other parts, even when it comes from the same witness or the same party’s total proof. Caudill v. Maloney’s Discount Stores, Ky., 560 S.W.2d 15 (1977). Furthermore, this Board may not substitute its judgment for that of the ALJ in matters involving the weight to be afforded the evidence on questions of fact. KRS 342.285(2). Phillips argues that Martin was aware of his presence at the plant long enough to have rescinded the no work order. He points to testimony from Martin that he saw Phillips hanging on the rack for “perhaps a period of one minute.” Phillips argues that by doing nothing during this time, Martin effectively allowed Phillips to continue working. Phillips ignores the fact that the ALJ made a factual finding that Martin did not have an opportunity to stop Phillips from reporting to work. Although at one point in his testimony, Martin estimates that he might have seen Phillips hanging on the rack for perhaps a minute, at other points in this testimony he states that he saw Phillips only “instantly” before he fell. We believe that there is substantial evidence supporting the ALJ’s conclusion that Martin did not have the opportunity to stop Phillips from working prior to the accident. Phillips also argues that Terri Simpson had the actual or apparent authority to allow him to return to work and that her failure to ask him to leave the plant floor effectively rescinded the no work order. Phillips points to testimony that Simpson would sometimes -8- direct workers to fill certain orders and, at one point, a worker was fired after she told Martin about an altercation she had with the worker. We do not believe that this evidence compels a finding that Simpson had any supervisory authority. Simpson testified that any directions that she gave to the workers were merely instructions from Martin that she relayed. She admitted that she did sometimes direct the workers to have an order filled when a customer called about it, but that she did not have the authority to make any management decisions. We believe that there is substantial evidence to support the ALJ’s conclusion that Simpson lacked both actual and apparent authority to rescind Martin’s no work order. Phillips argues that his failure to obey Martin’s order not to come to work on Friday would only allow the ALJ to make a 15% reduction in the compensation awarded pursuant to KRS 342.165(1), but would not allow him to dismiss the claim in its entirety. We disagree. KRS 342.165(1) allows a 15% reduction in income benefits if it is shown that the accident is caused by the intentional failure of an employee to use a safety appliance furnished by the employer or by failure to obey an order of the employer or administrative regulation that concerns the safety of employees or the public. The purposes behind this statute is to promote work place safety by encouraging both workers and employers to follow safety rules and regulations. Apex Mining v. Blankenship, Ky., 918 S.W.2d 225 (1996). However, in the instant case, we feel that the employee’s behavior is more serious than merely using a prohibited tool or method. Martin instructed Phillips to stay home both for his own safety and for the safety of his fellow employees. We believe that in this case, the order not to work severed the employment relationship for that day. See, Fowler v. Baalmann, 234 S.W.2d 11 (Missouri 1950). We therefore find no error with the ALJ’s dismissal of Phillips’ claim. Based upon our review of the record, we conclude that the evidence did not compel a finding in Phillips’ favor and that -9- the Board did not commit a flagrant error in assessing the evidence. The opinion of the Board is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE, DESIGNER MARBLE: Hon. Lee M. Dean Harrodsburg, KY Hon. Steven R. Armstrong Lexington, KY -10-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.