TRAUGOTT (ANTHONY) VS. COMP VIRGINIA TRANSPORTATION , ET AL.
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RENDERED: OCTOBER 22, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001829-WC
ANTHONY TRAUGOTT
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-08-01484
VIRGINIA TRANSPORTATION;
HON. IRENE STEEN, ADMINISTRATIVE
LAW JUDGE; AND WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE AND MOORE, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
ACREE, JUDGE: Anthony Traugott appeals the opinion of the Workers’
Compensation Board affirming the order of the Administrative Law Judge which
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS)
21.580.
determined Kentucky lacks jurisdiction to hear Traugott’s Workers’ Compensation
claim. Because we agree Kentucky lacks jurisdiction over the matter, we affirm.
Traugott began employment with Virginia Transportation in March
2008 as a truck driver. He sustained an injury to his left shoulder on September
25, 2008, in Bridgton, Missouri, notified the employer of the injury, and filed for
Workers’ Compensation benefits.
In preparation for adjudication of the claim, Traugott provided
deposition testimony regarding his hiring and employment. Traugott testified he
contacted a representative in Virginia Transportation’s Rhode Island headquarters
to inquire about employment opportunities. An employee from that office faxed
Traugott an application, which he completed and returned via fax. Traugott stated
he later placed a phone call to the Rhode Island office and learned he had been
hired. He then rented a car, as instructed, and drove from his home in
Harrodsburg, Kentucky, to Rhode Island for training, drug testing, and completion
of tax forms. Virginia Transportation reimbursed him for the car rental. Traugott
testified that, to his knowledge, the employer had only one office, the one in Rhode
Island, and none in Kentucky.
Upon beginning employment as a truck driver, his schedule varied.
Traugott testified he initially stayed on the road for two consecutive weeks before
returning home to Harrodsburg to rest for two to three days. Time on the road later
changed to three-week stretches, and would sometimes last as long as a month.
According to testimony, his last stop prior to a break at home was always in
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Louisville, Kentucky, and his first stop upon returning from his time off was
always in either Louisville or Lexington, Kentucky. His assignments required
travel to all forty-eight contiguous states, and he was not assigned primarily to any
one state.
Both Traugott and Virginia Transportation moved to bifurcate the
claim. The ALJ granted the employer’s motion, deciding to determine the
threshold issue of jurisdiction before adjudicating Traugott’s entitlement to
benefits.
Pursuant to KRS 342.760, and based on Traugott’s deposition
testimony, the ALJ found Kentucky does not have jurisdiction over the
extraterritorial claim because the employment contract was made in Rhode Island
and the employment was not principally localized in Kentucky. The ALJ also
found that Traugott did not spend substantial time performing his work in
Kentucky and that Virginia Transportation did not have a place of business in
Kentucky. The Board upheld this decision, concluding the ALJ’s recommendation
was based upon substantial evidence and correct application of the law. This
appeal followed.
Traugott argues on appeal that the ALJ erred in concluding his
employment contract was made in Rhode Island. If it had been made in Kentucky,
Kentucky could exercise jurisdiction over the claim pursuant to KRS
342.670(1)(c).
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Virginia Transportation contends the Board’s opinion was based upon
substantial evidence and correct application of law, and therefore cannot be
disturbed. We agree.
On appeal, we will alter a decision of the Workers’ Compensation
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.” Pike County Board of
Education v. Mills, 260 S.W.3d 366 at 368 (Ky. App. 2008) (quotation omitted).
KRS 342.670(1) provides for an award of Workers’ Compensation
benefits to certain workers injured outside Kentucky:
(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:
....
(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.
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KRS 342.670(1).2 Our only task is to determine whether it was error for the Board
to conclude the contract of hire was made in Rhode Island instead of Kentucky.
Kentucky has adopted the rule enunciated in the original Restatement
of Contracts: “A contract is made at the time when the last act necessary for its
formation is done, and at the place where that final act is done.” Green River Steel
Corporation v. Globe Erection Company, 294 S.W.2d 507, 509 (Ky. 1956)
(quoting Restatement of Contracts § 74). For a contract to exist, all parties to it
must assent to the contract and express their assent, either by words or actions.
See Harlan Public Service Co. v. Eastern Construction Co., 71 S.W.2d 24, 29 (Ky.
1934). Furthermore it is a “rule of universal application [that] in contracts made by
telephone, the place where the acceptor speaks his acceptance is the place where
the contract is made.” Trinity Universal Ins. Co. v. Mills, 293 Ky. 463, 169
S.W.2d 311, 314 (1943)(citing American Law Institute’s Restatement of the Law
of Conflicts, p. 326, comment B; and 17 C.J.S., Contracts, § 356, p. 814).
In the instant case, the contract for hire was not formed until both
Traugott and Virginia Transportation had manifested their assent. The evidence
before the ALJ indicated Traugott first expressed intent to enter employment: he
submitted his application, and then called the employer to learn whether he had
been hired. Stated differently, he called to seek manifestation of the employer’s
assent. A Virginia Transportation representative expressed the employer’s
acceptance of his application from the location in Rhode Island. No other act was
2
KRS 342.670(1)(a) provides that benefits may be recoverable in Kentucky if the claimant’s
“employment is principally localized in this state[.]” However, Traugott has not argued on
appeal that it was error to conclude the employment was not primarily localized in any state.
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necessary for completion of the employment contract. The Board properly
determined the contract was formed in Rhode Island when the Virginia
Transportation representative spoke the employer’s assent in that state.
The Board also affirmed the ALJ’s determination that the contract was
contingent upon Traugott’s completion of several other steps after the employer
informed Traugott he was hired. These actions included traveling to Rhode Island
to watch orientation videos and complete paperwork. For the contract to have been
formed after Traugott arrived in Rhode Island, it would have had to be contingent
upon completion of those tasks. However, neither party presented evidence that it
was so contingent. While performance of those tasks may have been necessary for
Traugott to begin driving a truck for Virginia Transportation, they occurred after
the employment contract had been completed. The evidence clearly did not
support a conclusion otherwise. However, the Board reached the correct result by
concluding the contract was made in Rhode Island.
Because the contract for hire was completed in Rhode Island, KRS
342.670(1)(c) does not confer jurisdiction upon Kentucky. For that reason, we
affirm the Board’s order upholding the ALJ’s dismissal of Traugott’s claim for
want of jurisdiction.
ALL CONCUR.
BRIEF FOR APPELLANT:
McKinnley Morgan
London, Kentucky
BRIEF FOR APPELLEE, VIRGINIA
TRANSPORTATION:
Ronald J. Pohl
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Andrew F. Manno
Lexington, Kentucky
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