SAMUEL L. HOWARD, DECEASED; MONICA B. HOWARD, WIDOW v. HARLAN RETREADING COMPANY, INC.; DONALD G. SMITH, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: AUGUST 9, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000364-WC
SAMUEL L. HOWARD, DECEASED;
MONICA B. HOWARD, WIDOW
v.
APPELLANTS
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-99-82780
HARLAN RETREADING COMPANY, INC.;
DONALD G. SMITH, Administrative
Law Judge; and WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; GUIDUGLI AND MILLER, JUDGES.
EMBERTON, CHIEF JUDGE: Samuel L. Howard was killed as a result of
a gun shot wound to the abdomen.
His widow and child sought
workers’ compensation benefits alleging that Samuel’s fatal wound
was accidentally inflicted during the scope of his employment.
The Workers’ Compensation Board found that Howard was not
performing work-related duties at the time of the shooting and
reversed the ALJ’s award of benefits.
Samuel, who had a history of mental depression, was the
manager of Harlan Retreading which was owned by his mother and
father.
On April 14, 1999, after he failed to appear at work for
Harlan Retreading, he was discovered fatally shot in a barn on
his property but rented by Harlan Retreading to store tires and
equipment.
Much of the medical and lay testimony concerned
Samuel’s mental status on the day of the shooting and whether his
gunshot wound was self-inflicted or accidental.
As anticipated,
much of the testimony concerning the issue is conflicting.
However, as found by the Board, a threshold issue is whether the
evidence supports a finding that Samuel was engaged in a workrelated activity at the time of the shooting.
We agree with the
Board that the facts relevant to this issue are largely
uncontradicted and are correctly summarized by the Board as
follows:
The barn was on the property of Sam Howard.
Harlan paid rent to use this building for the
storage of mining tires and state police
tires. Additionally, there were some state
police snow tires that were apparently in the
loft area. It is uncontradicted that
periodically and as frequently as once a week
an inventory of the state police tires would
be conducted. It is uncontradicted that the
state police tires were kept in a separately
locked area within the barn. It is
uncontradicted that this was on the first
level of the barn and not in the loft. It is
uncontradicted that this area remained
locked. It is uncontradicted that Sam
Howard’s set of keys were in the lock on the
outside of the barn. There is no evidence
that either of the locked areas, one
containing the state police tires, the other
containing the large mining tires, had been
or were opened on that morning. There is no
evidence that in April of 1999 there was any
call for snow tires. The only evidence of
Sam Howard’s purpose in entering the barn
that morning comes from Monica Howard, as
relayed by her in her testimony and as also
told by her to the state police investigator
and her father-in-law, that Sam Howard had
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said he was going to check on a weedeater
which was stored in the loft. The purpose of
checking on the weedeater was a conversation
in which the Howards’ engaged on the
preceding evening and in the early morning
hours of April 14, 1999, that at the end of
the day they would all participate in yard
work. The evidence is that the location of
the snow tires in the loft was not in the
same location as were either the gun or the
ladder were found. The evidence is that the
ladder, which had fallen, was discovered near
the body of Sam Howard while the gun was more
than 11 feet away. No writings were
discovered indicating Sam Howard had or
intended to conduct an inventory of the state
police tires or any other tires within the
barn. Simply put, the evidence provides only
one direct independent reason for Sam Howard
entering the barn on the morning of April 14,
1999.
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When death occurs on the employer’s premises, the
employee must still establish a degree of work-related activity.1
We agree with the Board that there is no substantial evidence to
support the ALJ’s finding that the gunshot wound arose out of and
in the course of Samuel’s employment.2
The uncontradicted
evidence establishes that he entered the barn for the purpose of
retrieving a weedeater for use other than related to his
employment.
Precisely how this tragedy occurred is of no
relevance to this proceeding.
The opinion and order of the Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE HARLAN
RETREADING COMPANY, INC.:
Otis Doan, Jr.
Harlan, Kentucky
1
J. Gregory Allen
RILEY & ALLEN, P.S.C.
Prestonsburg, Kentucky
Stapleton v. Fork Junction Coal Co., Ky., 247 S.W.2d 372
(1952).
2
Wolf Creek Colleries v. Crum, Ky. App., 673 S.W.2d 735
(1984).
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