WILLIAM MEREDITH v. JEFFERSON COUNTY PROPERTY VALUATION ADMINISTRATOR; SPECIAL FUND; SHEILA C. LOWTHER, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED: May 28, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-002239-WC
WILLIAM MEREDITH
v.
APPELLANT
PETITION FOR REVIEW
OF A DECISION OF
THE WORKERS’ COMPENSATION BOARD
NO. WC-96-71604
JEFFERSON COUNTY PROPERTY
VALUATION ADMINISTRATOR;1 SPECIAL
FUND; SHEILA C. LOWTHER,
ADMINISTRATIVE LAW JUDGE; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
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BEFORE: BUCKINGHAM, HUDDLESTON and JOHNSON, Judges.
HUDDLESTON, Judge:
William Meredith petitions for review of a
decision of the Workers’ Compensation Board that affirmed an
Administrative Law Judge’s opinion and order dismissing his claim
for income and medical benefits because his injury occurred outside
of the course of his employment.
The issue to be resolved in this
appeal is whether Meredith’s injury while in a restaurant getting
1
The parties incorrectly identify this appellee in their
briefs as “Jefferson County Property Evaluation Administration”
and “Jefferson County Property Evaluation Administrator.”
coffee meets any of the exceptions to the going and coming rule and
is therefore compensable.
The facts of this case are not in dispute.
Meredith
worked as a field representative for the Jefferson County Property
Valuation
Administrator,
and
frequently
met
with
attorneys,
executors and administrators at banks to inventory safe deposit
boxes.
On October 28, 1996, Meredith reported to the PVA office to
pick up his list of appointments for the day and then proceeded to
the location of his first appointment.
He arrived at a bank on
Wilson Avenue early for his 9:00 or 9:30 a.m. appointment, but the
bank had not yet opened.
Meredith then drove to a McDonald’s
restaurant five or ten minutes away to drink coffee and wait for
the bank to open.
As he was walking from the counter to a table
with his tray, Meredith slipped and fell, injuring himself.
It is
this accident which was the subject of his workers’ compensation
claim for income and medical benefits.
Following the entry of an arbitrator’s Benefit Review
Determination, Meredith requested a de novo hearing before an
Administrative Law Judge.
The parties submitted proof and a
hearing was held before ALJ Lowther on February 2, 1998, after
which the parties filed briefs.
On March 31, 1998, the ALJ issued
an opinion and order dismissing Meredith’s claim, stating that she
had
“carefully
considered
Meredith’s injury.”
the
circumstances
surrounding
Mr.
She then went on to relate her findings as
follows:
When he arrived at the bank on Wilson Avenue on October
28, 1996, it had not yet opened.
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The person or persons
he was to meet there had not yet arrived.
Rather than
waiting outside the bank or in his car, Mr. Meredith made
a decision to go to a McDonald’s restaurant to have
coffee. At the hearing he testified that this restaurant
was five to ten minutes away from the bank.
It was of
course at this restaurant that he slipped and fell,
sustaining a very serious injury.
Had Mr. Meredith been
injured on his way to or from the bank on Wilson Avenue,
his injury would clearly have been compensable. However,
it is the finding of the Administrative Law Judge that
the Plaintiff’s trip to the McDonald’s restaurant was an
identifiable deviation from the business purpose of his
trip, and constituted a personal errand.
The ALJ then dismissed Meredith’s claim for income and medical
benefits
as
employment.
the
injury
occurred
outside
the
course
of
his
The Workers’ Compensation Board affirmed the ALJ’s
opinion and order in a two-to-one decision rendered August 7, 1998.
Meredith urges this Court to find that his injuries were
compensable as arising out of and in the course of his employment.
He argues that his employment was a contributing factor to his
injury, that the injury occurred while he was on a trip on behalf
of his employer, and that he had been in a place of danger because
of his employment (the positional risk doctrine).
Meredith also
argues that the coffee break did not constitute a substantial
deviation from his employment and was within the personal comfort
doctrine. The Jefferson County PVA argues to the contrary that the
evidence before the ALJ does not compel a different result and that
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Meredith is attempting to have this Court impermissibly substitute
its judgment for that of the ALJ.
In workers’ compensation actions, this Court’s role is to
correct
the
Board
only
when
it
has
misconstrued
the
law
or
erroneously assessed the evidence so flagrantly as to cause gross
injustice.
(1992).
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685
The workers’ compensation claimant has the burden of
proof, and if unsuccessful, the question on appeal is whether the
evidence is so overwhelming upon consideration of the record as a
whole as to compel a finding in claimant’s favor.
See Snawder v.
Stice, Ky. App., 576 S.W.2d 276 (1979); Wolf Creek Collieries v.
Crum, Ky. App., 673 S.W.2d 735 (1984).
Compelling evidence, which
an unsuccessful claimant must establish to win on appeal, is that
which is so overwhelming that no reasonable person could reach the
same conclusion as the finder of fact.
REO Mechanical v. Barnes,
Ky. App., 691 S.W.2d 224 (1985). If substantive evidence of record
supports the ALJ’s decision, it must be upheld.
Francis, Ky., 708 S.W.2d 641 (1986).
Special Fund v.
The ALJ, as the finder of
fact, has the sole authority to judge the weight, credibility,
substance and inferences to be drawn from the evidence.
See
Paramount Foods, Inc., v. Burkhart, Ky., 695 S.W.2d 418 (1985).
In the version of the Kentucky Workers’ Compensation Act in
effect at the time of Meredith’s injury, an injury was defined as
“any work-related change in the human organism, arising out of and
in the course of employment.”
Ky. Rev. Stat. (KRS) 342.0011.
The
general rule that injuries that occur while commuting to and from
work are not in the course of employment has had several exceptions
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carved from it.
Ratliff v. Epling, Ky., 401 S.W.2d 43 (1966),
defined the operating premises exception, in which an injury
occurring on the operating premises of the employer is deemed to be
work-related. Hayes v. Gibson Hart Co., Ky. 789 S.W.2d 775 (1990),
defined the positional risk doctrine. For this exception, coverage
extends to the location where the work assignment places the
employee even though the injury-producing mechanism is not workrelated.
The special errand exception, in which the employee is
providing a benefit for the employer, is illustrated in Farris v.
Huston Barger Masonry Co., Ky., 780 S.W.2d 611 (1989).
In
the
present
appeal,
we
must
determine
whether
Meredith’s trip to McDonald’s while waiting for the bank to open
took him outside of the coverage of workers’ compensation law. The
ALJ found that this trip constituted a substantial deviation from
his business trip and was thus a personal errand. Professor Larson
defines a deviation as follows:
An
identifiable
deviation
from
a
business
trip
for
personal reasons takes the employee out of the course of
employment until the employee returns to the route of the
business trip, unless the deviation is so small as to be
disregarded as insubstantial.
Arthur Larson and Lex K. Larson, Larson’s Workers’ Compensation
Law, Vol. 1, § 19.00 (Desk ed. 1998).
In § 19.62, Larson states
that employees with no fixed routes or destinations who go on a
personal errand “may be held to resume employment immediately upon
completion of a personal visit and upon starting back in the
general direction of their business obligations.”
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The ALJ noted,
and we agree, that had Meredith been en route to or from the bank,
the result in the case would have been different.
Larson
also
defines
the
personal
comfort
doctrine
exception as follows:
Employees who, within the time and space limits of their
employment, engage in acts which minister to personal
comfort do not thereby leave the course of employment,
unless the extent of the departure is so great that an
intent to abandon the job temporarily may be inferred .
. . .
Larson, supra, § 21.00.
This doctrine is closely tied to the
deviation rule as that rule relates to the extent of the deviation.
Insubstantial deviations would be compensable under the personal
comfort doctrine, while the greater the deviation is, the less
likely is it that it will be compensable.
The ALJ found that
because Meredith traveled five to ten minutes away to have his
coffee, his deviation from the work trip was substantial and
outside of the personal comfort doctrine.
Meredith produced some evidence that his trip for coffee
may not have taken him completely outside of the business purpose
of his trip.
He did not have a fixed work-site, he had to travel
from site to site, and he was paid for all breaks and lunches.
However, the ALJ grounded her decision on substantive evidence in
the record regarding the nature of the deviation.
Based upon the
ALJ’s findings of fact as to the circumstances surrounding the
injury and the application of those facts to the law, the ALJ found
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that Meredith was on a personal errand at the time of the accident.
This Court may not substitute its judgment for that of
the finder of fact, in this case the ALJ.
Burkhardt, Ky., 698 S.W.2d 418 (1985).
Paramount Foods, Inc. v.
In Kentucky Bd. of Nursing
v. Ward, Ky. App., 890 S.W.2d 641, 643 (1994), this Court addressed
this point in detail:
“The position of the circuit court in administrative
matters is one of review, not of reinterpretation.” The
appellate (circuit) court is not free to consider new or
additional evidence, or substitute its judgement as to
the credibility of the witnesses and/or the weight of
evidence
concerning
administrative
questions
findings
of
of
fact.
fact
are
Thus,
based
if
upon
substantial evidence, then those findings are binding
upon the appellate court.
The only question remaining
for the appellate court to address is “whether or not the
agency applied the correct rule of law to the facts so
found.”
If the ruling of the administrative agency is
based on an incorrect view of the law, the reviewing
court may substitute its judgment for that of the agency.
[Citations omitted.] See also Commonwealth, Dept. of Education v.
Commonwealth, Ky. App., 798 S.W.2d 464 (1990).
The ALJ might well
have viewed the evidence favorably to Meredith’s case and found
that
he
was
restaurant.
in
the
course
of
his
employment
at
McDonald’s
However, she did not choose to rely on that evidence,
and it is not for this Court to re-weigh the evidence when the
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evidence the ALJ relied upon was substantive.
Because the ALJ
correctly applied applicable law to the facts in this case, the
Board correctly affirmed her decision.
The opinion of the Workers’ Compensation Board affirming
the opinion and order of the Administrative Law Judge is affirmed.
BUCKINGHAM, Judge, CONCURS.
JOHNSON, Judge, DISSENTS BY SEPARATE OPINION.
JOHNSON, Judge, DISSENTING. I respectfully dissent and
adopt the dissenting opinion of Board Member Greathouse as my own:
I
respectfully
dissent.
The
majority
has
framed the issue with a large stroke from a broad rush.
The claimant, as a field representative of the PVA
office, whose job primarily required him to travel around
to various banks meeting with executors and attorneys to
conduct inventories of safe deposit boxes, was performing
a vital service of the PVA office at the time he was
injured.
To frame the issue as to whether his departure
to McDonald’s for a cup of coffee was an abandonment of
his job simply flies in the face of common sense as to
what Meredith is required to do each day in service to
his
employer.
The
majority
implies
that
had
the
McDonald’s been located next door to the bank so that
Meredith could have a “plain” view of the bank’s front
door, then perhaps the personal comfort doctrine would
have
applied
to
make
his
injury
compensable.
The
majority concluded that Meredith’s drive to a McDonald’s
five or so minutes away is the decisive factor.
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This
seems to be a distinction without a difference.
I would
reverse and remand for consideration as to the extent and
duration of disability.
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ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE
JEFFERSON COUNTY
PROPERTY VALUATION
ADMINISTRATOR:
Kenneth L. Sales
William R. Kenealy
Kathleen M. Flynn
Louisville, Kentucky
K. Lance Lucas
SUTTON, HICKS & LUCAS
Florence, Kentucky
ATTORNEY FOR APPELLEE
SPECIAL FUND:
David R. Allen
Louisville, Kentucky
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