BROW (MICHAEL) VS. COMPENSATION TIGER TRUCK LINES, INC. , ET AL.
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RENDERED: SEPTEMBER 4, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002224-WC
MICHAEL BROW
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-07-01268
TIGER TRUCK LINES, INC.;
HON. GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, KELLER, AND LAMBERT , JUDGES.
CLAYTON, JUDGE: Michael Brow appeals from the decision of the November
7, 2008, Workers' Compensation Board (Board) denying jurisdictional cognizance
to his workers' compensation claim against Tiger Truck Lines, Inc., (Tiger Truck),
and reversing the June 16, 2008, Administrative Law Judge's (ALJ) order, which
found extraterritorial jurisdiction. After our review, we affirm the decision of the
Board.
FACTUAL AND PROCEDURAL BACKGROUND
In 2001, Tiger Truck employed Brow as an over-the-road truck driver.
At the time, he was a resident of Tennessee. After responding to a Tiger Truck
classified advertisement, Brow went to New Albany, Indiana, where he was
interviewed and hired by the owner of Tiger Truck. Although Brow lived in
Tennessee when he began working for Tiger Truck, he relocated after a year to
Pendleton, Kentucky, where he continues to live.
On September 25, 2006, while dropping a trailer in Lafayette,
Georgia, Brow slipped while getting out of the truck and injured his lower back.
After making another delivery, Brow called and notified the dispatcher at Tiger
Truck in Indiana about the injury. Subsequently, he reported to Tiger Truck in
New Albany, Indiana, where a first report of injury was completed and processed
through the Board of Indiana.
Brow first sought medical treatment for the effects of his injury on
September 27, 2006. On November 16, 2006, Dr. Jonathan E. Hodes,
neurosurgeon, performed a lumbar laminectomy and discectomy at L4-5 on him.
Shortly after the surgery, Brow began to exhibit bladder problems and erectile
dysfunction issues. He then came under the care of Dr. M. Brook Jackson, a
urologist, and Dr. Ellen Ballard, a physical medicine and rehabilitation specialist.
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As a result of the injury, Tiger Truck paid Brow temporary total disability benefits
under its Indiana workers’ compensation policy from September 26, 2006, through
September 27, 2007. Brow has not returned to work anywhere since September
26, 2006.
Tiger Truck is an Indiana corporation with its principal place of
business in New Albany, Indiana. In addition, Tiger Truck has a second New
Albany, Indiana, location which is used to park tractors. Tiger Truck does not
have and has never had a Kentucky office or location. While Tiger Truck has no
workers’ compensation coverage in Kentucky, it maintains Indiana workers’
compensation with All States Coverage. Finally, with regards to its Indiana
business location, all Tiger Truck’s drivers were dispatched from its principal
office location in New Albany.
Brow testified that on Sundays he usually received his load
assignments by telephone at his home from the dispatcher in Indiana. He would
then, that same evening, pick up his tractor and trailer from New Albany. Brow
was not, however, allowed to begin charging for mileage until he hooked up the
load to be delivered, which was often the next day. According to Brow, 90 percent
of the time he would be dispatched to General Electric (GE) in Louisville,
Kentucky, to hook up his load for deliveries to Tennessee or Georgia. Often, his
return deliveries would be to GE and sometimes to the New Albany truck yard.
At the end of the week, Brow stated that typically he was required to
return his assigned tractor/truck to his employer’s truck yard in Indiana. Regarding
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truck maintenance, Brow explained that if his truck broke down while on the road,
repairs were made locally; otherwise, all truck maintenance was performed by
Tiger Truck at its Indiana truck facility. Furthermore, Brow testified that as part of
his employment, he was also required to drop off all invoices, bills of lading, and
his log book on Fridays at Tiger Truck’s main office in Indiana. Except for the
routine described above, Brow only went to the main office when requested to by
the dispatcher to deliver or discuss specific bills of lading.
On June 16, 2008, the ALJ ruled that, given the evidence available to
him, the language contained in Kentucky Revised Statutes (KRS) 342.670(1) and
(5)(d)(1) and (2) extended Kentucky coverage to Brow’s injury. The ALJ reasoned
in his opinion on page nine as follows:
Based on the facts not in dispute, plaintiff’s claim can
only be covered if his employment is localized in
Kentucky. Further, his employment can only be
localized in Kentucky if it is first determined that KRS
342.670(5)(d)1 does not apply. If so, there is no dispute
that KRS 342.670(5)(d)2 would apply because plaintiff
lives in Kentucky and spends a substantial part of his
working time in Kentucky. Therefore, the entire issue
turns on whether KRS 342.670(5)(d)1 is applicable.
Specifically, although the parties agree the defendant
only has a place of business in Indiana, they dispute
whether plaintiff regularly worked “at or from that place
of business.”
Ultimately, the ALJ determined that Brow did not “work from” Indiana, and
therefore, while KRS 342.670(5)(d)(1) was not applicable, KRS 342.670(5)(d)(2)
was applicable. Consequently, the ALJ, pursuant to that statute, decided that
extraterritorial coverage existed. He reasoned that because Brow lived in
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Kentucky and performed a substantial amount of his employment activities in
Kentucky, he was covered under Kentucky’s workers’ compensation act.
Furthermore, after establishing jurisdiction, the ALJ went on to find that the
erectile dysfunction and bladder problems were compensable as work-related
conditions and awarded Brow disability benefits.
Following a motion for reconsideration, Tiger Truck appealed to the
Board arguing that Brow’s employment was principally localized in Indiana as he
regularly worked at or from the Indiana location, and the ALJ erred as a matter of
law in finding that Kentucky had extraterritorial jurisdictional over the claim.
Further, Tiger Truck contends that the erectile dysfunction and bladder problems
were not compensable as work-related conditions.
On July 22, 2008, the Board ruled that the ALJ erred in finding that
Brow’s employment with Tiger Truck was principally localized in Kentucky and
reversed the decision. It based its decision on KRS 342.670(5)(d)(1) and not
(d)(2), which the ALJ had relied on. The Board instructed the ALJ, on remand, to
dismiss the claim for lack of jurisdiction. Based on the ramifications of its ruling,
the Board did not reach the question of whether erectile dysfunction and bladder
problems were compensable as work-related conditions. This appeal followed.
ISSUES
Brow maintains that the ALJ’s determination that he did not
“regularly work at or from” his employer’s place of business is mainly a question
of fact, and therefore, the Board may not substitute its judgment for that of the
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ALJ. KRS 342.285. Whereas, Tiger Truck insists that the controversy concerns
the legal interpretation of statutory language, and hence, although the Board has no
authority to substitute its opinion as to the weight of the evidence, it does have
authority to determine whether “[t]he order, decision, or award is not in conformity
to the provisions of this chapter[.]” KRS 342.285(2)(c).
ANALYSIS
The issue in this case rests squarely on whether it is one of fact or law.
Obviously, different standards of review are required for questions of fact and
questions of law. For questions of fact, a reviewing court must give great
deference to the conclusions of a fact-finder, if the facts are supported by
substantial evidence and the opposite result is not compelled. When considering
questions of law, or mixed questions of law and fact, the reviewing court has
greater latitude to determine whether the findings below were sustained by
evidence of probative value. Aetna Cas. and Sur. Co. v. Petty, 282 Ky. 716, 140
S.W.2d 397 (Ky. App. 1940); M.H. and H. Coal Co. v. Joseph, 310 S.W.2d 257
(Ky. 1958).
In the case at hand, we note that there is little or no dispute as to the
facts of the case. Generally, whether jurisdiction exists is a question of law if the
facts below are substantially undisputed, and is a question of fact if the facts are
disputed. See Uninsured Employers' Fund v. Garland, 805 S.W.2d 116, 117 (Ky.
1991). Here, we observe that the facts are not disputed but the application of these
facts to the existing statute, KRS 342.670(5), has been construed differently by the
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ALJ and the Board. Undoubtedly, interpretation of statutory language is a question
of law. Combs v. Kentucky River Dist. Health Dep’t., 194 S.W.3d 823 (Ky. App.
2006). Therefore, in this case, we find that the issue herein is a legal one, and as
such, will be reviewed under the appropriate standard for legal matters.
On appeal, our standard of review of a decision of the Board “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 injustice.” AK Steel Corp. v. Childers,
167 S.W.3d 672, 675 (Ky. App. 2005)(quoting Western Baptist Hospital v. Kelly,
827 S.W.2d 685, 687-88 (Ky. 1992). Because “the interpretation to be given a
statute is a matter of law, we are not required to show any deference to the decision
of the Board.” Newberg v. Thomas Industries, 852 S.W.2d 339, 340 (Ky. App.
1993). Similarly, “we review the ALJ's and the Board's application of law to the
facts de novo.” White v. Great Clips, 259 S.W.3d 501, 503 (Ky. App. 2008). The
Board’s review is based on KRS 342.285(2)(c), which authorizes the Board to
reverse the ALJ if “[t]he order, decision or award is not in conformity to the
provisions of this chapter[.]” Thus, whether Kentucky has jurisdiction under KRS
342.670 is a matter of statutory interpretation, which we review de novo. Because
the review is de novo, we are not required to defer to either the ALJ or the Board.
Initially, we will examine the statutory guidelines for determination of
extraterritorial coverage of the Kentucky Workers’ Compensation Act. KRS
342.670 states:
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(1) If an employee, while working outside the territorial
limits of this state, suffers an injury on account of which
he, or in the event of his death, his dependents, would
have been entitled to the benefits provided by this chapter
had that injury occurred within this state, that employee,
or in the event of his death resulting from that injury, his
dependents, shall be entitled to the benefits provided by
this chapter, if at the time of the injury:
(a) His employment is principally localized in this
state, or
(b) He is working under a contract of hire made in
this state in employment not principally localized
in any state, or
(c) He is working under a contract of hire made in
this state in employment principally localized in
another state whose workers' compensation law is
not applicable to his employer, or
(d) He is working under a contract of hire made in
this state for employment outside the United States
and Canada.
Here, it is undisputed that Brow's contract of hire was made in Indiana
rather than in Kentucky. Thus, subsections (b), (c), and (d) of KRS 342.670(1) are
inapplicable as they apply only to contracts of hire made in Kentucky. Thus,
Brow’s ability to claim Kentucky benefits rests on the language of KRS
342.670(1)(a) – “[the] employment [must be] principally localized in this state[.]”
The phrase "principally localized" is defined in KRS 342.670(5)(d) for purposes of
extraterritorial coverage as follows:
A person's employment is principally localized in this or
another state when:
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1. His employer has a place of business in this or
the other state and he regularly works at or from
that place of business, or
2. If subparagraph 1. foregoing is not applicable,
he is domiciled and spends a substantial part of his
working time in the service of his employer in this
or the other state[.]
Unless Brow meets one of these two statutory definitions, he is not entitled to
claim Kentucky workers' compensation benefits on the ground that his
employment was principally localized in another state. See Haney v. Butler, 990
S.W.2d 611 (Ky. 1999).
Here is the crux of the issue: if KRS 342.670(5)(d)(1) is applicable,
then KRS 342.670(5)(d)(2) is not applicable. The ALJ interpreted “works at or
from” as not pertinent, and thus, relied on the second subsection. We do not agree
with the ALJ’s reasoning, but find the Board’s reasoning persuasive. Our
difference with the ALJ’s determination is well-explained in the Board’s thorough
and carefully crafted decision. We agree with the decision reached by the Board
and adopt its analysis into the body of this Court’s opinion:
When an employee is injured while in another
state, KRS 342.670, the statute dealing with
extraterritorial jurisdiction, provides the conditions under
which Kentucky will have coverage over that employee’s
workers’ compensation claim. In undertaking an analysis
of this issue, it must first be determined whether Brow
falls within the general purview of KRS 342.670 and, if
so, which of the four circumstances described in KRS
342.670(1) apply. KRS 342.670(1) provides in pertinent
part:
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(1) If an employee, while working outside the
territorial limits of this state, suffers an injury on
account of which he, or in the event of his death,
his dependents, would have been entitled to the
benefits provided by this chapter had that injury
occurred within this state, that employee, or in the
event of his death, his dependents, shall be entitled
to the benefits provided by this chapter, if at the
time of the injury:
(a) His employment is principally localized
in this state, or
(b) He is working under a contract of hire
made in this state in employment not
principally localized in any state, or
(c) He is working under a contract of hire
made in this state in employment principally
localized in another state whose workers’
compensation law is not applicable to his
employer, or
(d) He is working under a contract of hire
made in this state for employment outside
the United States and Canada.
It is not at issue that Brow’s work-related injury
occurred while he was working for Tiger Truck in
Georgia, which is well “outside the territorial limits of
this state.” It is further undisputed that Brow was hired
by Tiger Truck in New Albany, Indiana. Hence,
according to the express dictates of KRS 342.670(1),
Brow does not meet the requirements set out in
subsections (b), (c), or (d). The question to be answered
then is whether Brow qualifies for coverage under KRS
342.670(1)(a). To that extent, the evidence of record
must support the ALJ’s finding that Brow’s employment
with Tiger Truck was “principally localized” in
Kentucky.
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For purposes of determining where an injured
worker’s employment is principally localized, KRS
342.670(5) states:
(d) A person’s employment is principally
localized in this or another state when:
1. His employer has a place of business
in this or the other state and he regularly
works at or from that place of business,
or
2. If subparagraph 1. foregoing is not
applicable, he is domiciled and spends a
substantial part of his working time in
the service of his employer in this or the
other state[.]
A review of the above language makes it clear that
in considering the propriety of the ALJ’s finding with
regard to Kentucky jurisdiction, the record must first be
examined in view of subsection (5)(d)1. Haney v. Butler,
990 S.W.2d 611, 616 (Ky. 1999). Only if that section
does not apply as determined by the ALJ, does the
analysis proceed to subsection (5)(d)2. Id. at 616. To
that extent, we find the court’s holding in Eck Miller
Transportation Corporation v. Wagers, 833 S.W.2d 854
(Ky. App. 1992), to be instructive. In that case, the
injured truck driver was a Kentucky resident; there was
evidence that he did a substantial amount of work-related
activities (paperwork, vehicle maintenance, etc.) at his
home in Kentucky; the employer had a freight terminal in
Kentucky; and the worker’s paychecks were drawn on a
Kentucky bank. Although the worker was notified of his
hiring in Kentucky, the necessary paperwork was done at
the employer’s principal office which was located in
Indiana, and he was subsequently assigned to the
employer’s freight terminal in Tennessee. It was from
the Tennessee terminal that he essentially received all his
work orders, and he was injured in Tennessee. In light of
those facts, the court concluded that the Tennessee
freight terminal constituted a place of business for the
employer; the worker regularly worked from the
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employer’s Tennessee freight terminal; and, regardless of
other factors, pursuant to KRS 342.670(5)(d)1, the
injured worker’s employment was principally localized
in Tennessee.
In the case sub judice, it is undisputed that at the
time of Brow’s injury Tiger Truck’s only places of
business were located in New Albany, Indiana. It is
further undisputed that Brow would travel to New
Albany on Sundays where he would pick up a truck
owned by his employer at the employer’s truck yard.
Moreover, at the end of each week he was required to
return his assigned truck to the same truck yard. Brow
was also typically obligated to drop off all invoices, bills
of lading, and his log book at Tiger Truck’s offices in
Indiana on a weekly basis. On other occasions, he was
required to report to Indiana when summoned to deliver
or discuss specific bills of lading. In addition, Brow
received all of his work orders from a dispatcher located
in Indiana. Any other proof regarding Brow’s work
routine when traveling in other states including Kentucky
notwithstanding, given these facts we believe the
evidence compelled a finding by the ALJ that Tiger
Truck had its only place of business in another state and
Brow regularly worked at or from that place of business
when he was injured in a state other than Kentucky.
Contrary to the ALJ’s analysis, the fact that Tiger
Truck did not begin to pay Brow mileage until he picked
up a load of cargo, whether in Kentucky or elsewhere,
has no relevance to the application of KRS
342.670(5)(d)1. It is well established that where work
involves travel away from an employer’s premises, the
worker is considered to be within the course and scope of
the employment during the entire trip. Black v. Tichenor,
396 S.W.2d 794, 797 (Ky. 1965). Thus, regardless of
when and how Tiger Truck chose to calculate Brow’s
wage for the time he was traveling on company business,
Brow’s weekly travel to and from the truck yard in
Indiana was nevertheless an integral, necessary and
regular part of his employment with Tiger Truck. Haney
v. Butler at 615; Abbott Laboratories v. Smith, 205
S.W.3d 249, 254 (Ky. App. 2006).
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Consequently, it was error as a matter of law in
line with the express language of KRS 342.670(1)(a) and
(5)(d)1 for the ALJ to determine that Brow’s
employment with Tiger Truck was “principally localized
in this state,” and the ALJ’s decision finding that
Kentucky had extraterritorial coverage must be reversed.
On remand, the ALJ is instructed to issue an order
dismissing Brow’s claim for lack of jurisdiction.
The opinion of the Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kenneth Burgess
Louisville, Kentucky
Derek P. O’Bryan
Louisville, Kentucky
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