Opinion
NO. 2015-CA-001527-WC
07-29-2016
CIRCLE K APPELLANT v. TRAVIS W. CARTER; HON. STEVEN G. BOLTON, ADMISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Judson F. Devlin Louisville, KY BRIEF FOR APPELLEE: Scott C. Justice Louisville, KY
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO: WC-14-87612 OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, D. LAMBERT AND MAZE, JUDGES. D. LAMBERT, JUDGE: This matter is before the Court following a petition for judicial review of a decision rendered by the Workers' Compensation Board (hereinafter "the Board") which reversed the decision of the Administrative Law Judge ("ALJ"), denying benefits to the injured employee, Petitioner Travis W. Carter. The Respondent, Circle K, operates a number of convenience stores. For the foregoing reasons, we affirm the ruling of the Board.
I. FACTUAL AND PROCEDURAL HISTORY
Carter's employment with Circle K began in 2011, and ended in 2014. He worked as a night shift cashier at a Circle K location in Louisville. During Carter's employment with Circle K, he would typically report to work thirty minutes early and eat his dinner in the manager's office before clocking in. The store's security cameras connect to a set of monitors located in that office. On March 29, 2014, Carter ate his dinner in the office as usual, and while doing so he observed, in one of the monitors, a young man placing items from the store shelves into his pockets. Carter then proceeded from the office and confronted this suspected shoplifter.
The man ran out the door of the store, and Carter chased after, grabbing him by the hood of his sweatshirt. The suspected shoplifter continued to run, causing Carter to fall forward and land on the ground onto his outstretched arm. He sustained serious injuries as a consequence, including a torn rotator cuff and a fractured right humerus. These injuries required surgery to repair, and he developed a pulmonary embolus after surgery, which resulted in a weeklong hospital stay.
Circle K terminated Carter's employment four days later as a result of this incident, citing Carter's violation of company policy. Circle K's employee handbook contains provisions which prohibit employees "[f]or my safety and that of others," from "chasing, pursuing, or attempting to apprehend, persons committing crimes on store property." The handbook also has a provision that states "[t]he use of force to prevent a crime is outside the scope of employment and may subject an associate to substantial personal liability." Another provision notes that "it is the Company policy that I will work INSIDE the store late night hours unless there is a safety emergency that requires my attention." The record provides ample and uncontested proof that Carter was aware of these policies.
Carter filed a claim for workers' compensation benefits. The ALJ issued an order dismissing the claim, reasoning that Carter's violation of company policy was much more egregious than a failure to abide by safety rules. Carter's knowing violation of company policy, the ALJ reasoned, represented a substantial deviation from the course and scope of his employment; therefore, the injury did not arise out of his employment. Carter then appealed the ALJ's ruling to the Board, which reversed and remanded.
This appeal followed, in which Circle K contends the ALJ's opinion was supported by substantial evidence and the Board erred in reversing it.
II. ANALYSIS
1. STANDARD OF REVIEW
The standard of appellate review of an administrative decision is a very deferential one. "On appeal, our standard of review of a decision of the Workers' Compensation 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.'" Pike County Bd. of Educ. v. Mills, 260 S.W.3d 366, 368 (Ky.App. 2008) (quoting Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-688 (Ky. 1982). A claimant bears the burden of proof—and the risk of non-persuasion —on every element of a workers' compensation claim. Id. (citing Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App 1984).
When reviewing a workers' compensation claim, Kentucky Revised Statutes (KRS) 342.285 designates the ALJ as the fact-finder. KRS 342.285(1). This provision has been construed to grant the ALJ "...the sole discretion to determine the character, quality, weight, credibility, and substance of the evidence, and to draw reasonable inferences from the evidence." Bowerman v. Black Equipment Co., 297 S.W.3d 858, 866 (Ky.App. 2009). Though KRS 342.285(2)(d) establishes a clear error standard of review for findings of fact, the Board should not "...substitute its judgment for that of the [ALJ] as to the weight of evidence in questions of fact[.]" Id. (quoting Shields v. Pittsburgh & Midway Coal Mining Co., 634 S.W.2d 440, 441 (Ky.App. 1982). An ALJ is entitled to believe or disbelieve all or parts of the evidence presented for review. Caudill v. Maloney's Discount Stores, 560 S.W.2d 15 (Ky. 1977). "In short, appellate courts may not second-guess or disturb discretionary decisions of an ALJ unless those decisions amount to an abuse of discretion." Bowerman, at 866 (citing Medley v. Bd. of Educ., Shelby County, 168 S.W.3d 398, 406 (Ky.App. 2004)).
On the other hand, when an error concerns an issue of law, a reviewing court should analyze the error through a different standard. "If the reviewing court concludes the rule of law was correctly applied to facts supported by substantial evidence, the final order of the agency must be affirmed." Kentucky Unemployment Ins. Comm'n v. Cecil, 381 S.W.3d 238, 246 (Ky. 2012) (citing Brown Hotel Co. v. Edwards, 365 S.W.2d 299 (Ky. 1962)). However, a reviewing court is entitled to substitute its judgment for that of the agency where the agency's ruling is based on an "incorrect view of the law." Kentucky Bd. of Nursing v. Ward, 890 S.W.2d 641, 642 (Ky.App. 1994). When the question involves the application of law to a given set of facts, the appropriate review is de novo. Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky.App. 2001).
2. THE BOARD WAS ENTITLED TO FIND CARTER'S ACTIONS WERE
WITHIN THE COURSE AND SCOPE OF HIS EMPLOYMENT
Circle K's primary contention is that the Board impermissibly encroached upon the ALJ's role as fact-finder when it ruled that Carter's failure to abide by safety rules did not rise to the level of deviation from the course and scope of employment. Carter argues that this finding involved an application of law to the facts, and the Board was entitled to reverse the ALJ's finding.
Whether an injury arises from the course and scope of employment is a question of law. Jackson v. Cowen Mfg. Co., 578 S.W.2d 259, 265 (Ky.App. 1978). Because the question is one of law, the ALJ's findings are not subject to the high degree of deference noted above.
Relying on the evidence presented, including the language of the employee handbook noted above that explicitly places use of force to prevent commission of a crime outside the scope of employment, the ALJ made a finding that Carter's actions fell outside the course and scope of his employment with Circle K.
Finding no factually analogous Kentucky case law, the ALJ also examined foreign case law and secondary authorities in arriving at the conclusion reflected in the order. In Scheller v. Industrial Comm'n of Az., 134 P.2d 1279 (Az.Ct.App. 1982), the court held that the injuries sustained by a security guard who abandoned his post to pursue persons he had observed burglarizing the premises next door had not arisen out of his employment. In Wright v. Bi-Low, Inc., 442 S.E.2d 186 (S.C.Ct.App. 1994), the court held that the injuries of a store clerk who chased a shoplifter out of the store and suffered a heart attack, similarly did not arise out of the employment. Both of these cases, as well as the ALJ, cited the treatise written by Professor Arthur Larson on workers' compensation stand for the proposition that "Generally, where an employee undertakes an action which is specifically prohibited, notwithstanding the fact that the employee is attempting to advance the employer's work, that action is held to be outside the course of employment." 1A A.Larson, Workmens' Compensation Law, § 27.14.
While the specific factual scenario presented here may be novel, the law on the issue is not. The most pertinent fact here is that the incident involved a violation of safety rules. It has long been settled law that mere safety violations do not act to entirely deprive an injured employee of benefits. Big Elkhorn Coal Co. v. Burke, 267 S.W.142, 144 (Ky. 1924) ("[W]e are of opinion that under our Compensation Act the intentional violation of a safety rule does not amount to such willful misconduct as to preclude recovery under the act.")
Given that neither party disputes the intentional character of Carter's actions, the true question to be resolved is whether Circle K's policies were mere safety rules, or something beyond. The ALJ premised his conclusion on his own opinion that "[a]lthough this is certainly a safety issue in part, it goes far beyond the bounds of safety as it affects an employer's interests." However, the ALJ's summary of the evidence does not reflect these other interests. Two of the witnesses who testified, store manager Jay Darren Jones and district manager Sherry Vincent, both testified that the policies were in place due to "personal injury issues" outweighing the costs of inventory loss, and "for the safety of the employees, customers, and shoplifters," respectively. Moreover, the interests "beyond the bounds of safety" attributed by the ALJ to the employer, exposure to civil liability, employee health, employee welfare, employee morale, customer welfare, and customer goodwill, are all implicated by any safety rule imposed by any business. The ALJ offers only philosophical, and not legal, justification for deviating from established precedent by precluding recovery entirely rather than reducing recovery pursuant to KRS 342.165. Moreover, the fact that Circle K adopted a policy that explicitly attempts to limit the scope of employment to exclude employees injured by violation of safety rules from compensation contradicts the policy purposes behind the provisions of KRS 342.165.
III. CONCLUSION
Under Burke, Carter's safety violation, even though intentional, does not move the behavior outside of the course and scope of his employment, or justify a complete bar to recovery. Rather, it justifies a reduction in the amount awarded, pursuant to KRS 342.165. Thus the Board was acting within its authority when issuing its conclusion as a matter of law. To rule otherwise would be to reduce the statute and the clear legislative intent behind its passage to nullity.
The ruling of the Workers' Compensation Board is hereby AFFIRMED.
ALL CONCUR. BRIEF FOR APPELLANT: Judson F. Devlin
Louisville, KY BRIEF FOR APPELLEE: Scott C. Justice
Louisville, KY