FIRST CLASS SERVICES, INC. V. GURAL W. HENSLEY, ET AL.
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IMPORTANT NOTICE NOT ·To BE PUBLISHED OPINION . ' ( THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHEJ) AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, _ UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IJ,f THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS TllE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSil)ERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JUNE 14, 2018 NOT TO BE PUBLISHED ~upr:ettt:e Olourf of ~:enfutkit 201 7 -SC-000620-WC FIRST CLASS SERVICES, INC. V. APPELLANT ON APPEAL FROM COURT OF APPEALS CASE NO. 2016-CA-001367 WORKERS' COMPENSATION BOARD NO. 12-WC-60799 GURAL W. HENSLEY; HON. OTTO D. WOLFF, IV, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD. APPELLEES MEMORAN-DUM OPINION OF THE COURT AFFIRMING Factual and Procedural Background Appellee, Gural Hensley, was an over-the-road truck driver employed by Appellant, First Class Services, Inc., a trucking company whose employees haul trailers of hazmat, dry bulk, and liquid tank loads interstate. To ensure product quality, tank trailers hauled by First Class employees must be thoroughly cleaned after each delivery prior to the next product being lo~1.ded. After a delivery, Hensley routinely brought his truck with the dirty trailer tank to Derby City Tank Wash in Louisville, where he left the tank to be cleaned before returning to Frankfort for another load. · Because Hensley lived 30 to 40 miles away from th_e First Class terminal in Lewisport, Kentucky, he was permitted to keep his truck and trailer at his residence in English, Indiana. Hensley began and ended his routes from home. On November 14, 2012, Hensley informed James Craig, his dispatcher, and Randy Cutrell, Vice-President of First elass, that h~ was feeling ill during a delivery route. On November 15, Hensley brought his dirty trailer tank to . . Derby City Tank Wash after his delivery. He wa~1 scheduled to take the clean tank back to Frankfort for a new load, then on ·to Oklahoma. However, due to his illness; First Class determined that Hensley should not finish his dispatch. Instead, another driver was sent with a different truck to pick up the clean tank and ~ake it to Frankfort for the new load. Hensley was sent home in his truck with no ,trailer attached, which is known in the industry as "bob-tailing." ·' While "boo-tailing" home, Hensley's truck went off the road in\Crawford County, Indiana and struck a tree. Hensley sustained multiple injuries and filed a workers' compensation claim on February 8, 2013. Initially, the AW_found in Hensley's favor, finding, inter alia, that Hensley's travel to store his truck at home qualified for the "service or benefit to the employer" exception. Hensley put less mileage on the truck and was able to leave for dispatches earlier without driving the extra 30 to 40 miles toand-from the terminal in Lewisport. Because keeping the truck at his residence was of "some benefit" to First Class, Hensley's travel to and from home with his truck was within the scope of his employment. However, the 2 AW did not find that Hensley qualified for the "traveling employee" exception. Both parties appealed the AW's decision. On appeal, the Board affirmed the AW in part and reversed in part. The Board found that, in addition to qualifying for the "service or benefit to employer" exception, Hensley's accident and consequential injuries were workrelated under the "traveling employee" exception. The Board stated that, as in Gains Gentry Thoroughbreds/Fayette J!'arms v. Mandujano, 366 S.W.3d 456, 462-63 (Ky. 2012), Hensley's injuries occurred during the "necessary and inevitable" act of returning from the journey he undertook on behalf of his employer. First Class appea.J.ed to the Kentucky Court of Appeals pursuant to Section 111 of the Kentucky Constitution and KRS 342.290, which affirmed the Board's decision, Analysis Appellate review of Board rulings strictly concerns whether the Board's Final Order was: (1) based on a correct interpretation of the law, and (2) reasonable under the evidence. Fortney v. AirtranAinvays, Inc., 319 S.W.3d 325, 328 (Ky. 2010). Appellate courts will only disturb a Board decision that is reasonable under the eyidence ·"to address new or novel questions of statutory construction, or to reconsider precedent when such appears necessary, or to review a questi?n of.constitutional magnitude." W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 688 (Ky. 1992). "When the decision of the fact-finder favors the person with the burden of proof, his only burden on app~al is to show that there was some evidence of 3 substance to support the finding, meaning evidence which would permit a fact. . finder to reasonably find as it did." Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986) (emphasis added). "In order to reverse the finding of the Board, the claimant, who has the burden of proof, must present evidence that is so overwhelming as to compel a finding in his favor." Howard D. Sturgill & Sons v. Fairchild, 647 S.W.2d 796, 798 (Ky. 1983) (citing Old Republic Ins. Co. v. McCarty, 599 S.W.2d 163 (Ky. 1980)). A compensable "injury" under the Workers' Compensation Act must have resulted from a work-related occurrence "arising out of and in the course of employment .... " KRS 342.0011(2). The going and coming rule states that, "[w]here an employee is traveling between his home and the place of employment and is not performing some special service or benefit for his. . . employer, his injuries are not sustained in the course of his employment." Fairchild, 647 S.W.2d at 797 (citing Brown v. Owsley, 564 S.W:2d 843 (Ky. 1978)). "The rationale supporting the ru.le is that perils encountered during travel to and from work are no different from those encountered py the general pubi~c and, thus, are neithet occupational nor industrial ·hazards fo~ which the employer is liable." Fortney, 319 S.W.3d at 328 (internal citations omitted). However, this Court has addressed several exceptions to the going and coming rule, including the "service or benefit to the employer" exception, see id. at 329-30, and the "traveling_ employee" doctrine. See Mandujano, 366 S.W.3d at 462. Although only one exception to the going and coming rule is needed, the following analysis demonstrates that both are satisfied in the case at bar. 4 A. Traveli~g Employee Exception \ "[T]he traveliri.g,employee doctrine considers an injury that occurs while I the employee is in travel status to be work-related unless the worker was engaged in a significant departure from the purpose of the trip." Id. Travel status applies ·to "[e]mployees whose work entails travel away from the employer's premises." Black v. Tich,enor, 396 S.W.2d 794, 797 (Ky. 1965). Ac~ordingly, traveling employees perform within the scope of their employment "continuously during the trip, except when a distinct departure on a personal errand is shown." Id. Here, the Board held that Hensley's return trip to 4is residence was a "necessary and inevitable" act of completing his travel, undertaken as a First Class employee.' ·The Board found that "[s]ometitnes [Hensley] brought a trailer home with him, and sometimes he did not." Further, the Board stated that "a mere deviation from his usual em:ployment.due to an illness [does] not negate the fact Hensley was still working until he returned home." So, it was not a distinct departure from his duties to be driving the truck home without a trailer~ Thus, the :Soard concluded that Hensley's accident fell within the traveling employee exception. B. Some Service or Benefit to the Employer Exception "The rule excluding injuries that occur off the employer's premises, . during travel between work and l_iome, does not apply if the journey is part of the service for which the worker is employed or otherwise benefits 'the employer." Fortney, 319 S.W.3d at 329. Hence, driving and other forms·of 5 movement required to complete an employee's duties are covered if they provide some benefit or. service to the employer. Here, the AW's recommendation and the Board's final order both described Hensley's storage of his truck and trailer at his residence as being of "some benefit" to first Class. Among the benefits listed were. that less mileage was put on the truck and it allowed Hensley to spend more time on the road. C. Applying the Exceptions Substantial evidence supports the Board's findings that Hensley's storage of the company truck at his home was of benefit to First Class, and that Hensley was a traveling employee. Therefore, the reviewing court was bound by the record. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). Accordingly, the Court of Appeals properly deferred to the Board's findings, which were based upon evidence of substance, as to the applicability of those two exceptions. Finding no legal error, the Court of . Appeals appropriately affirmed the Board's Final Order. Conclusion For the reasons stated herein, we here by affirm the decision of the Court . \ of Appeals. All sitting. All concur. 6 COUNSEL FOR APPELLANT: Richard Christion Hutson WHITLOW, ROBERTS, HOUSTON & STRAUB, PLLC COUNSEL FOR APPELLEE: Paul Allen Brizendine BRIZENDINE LAW OFFICE, LLC 7
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