James Ray Foley v. Pegasus transportation/crst International ( 2022 )

RENDERED: OCTOBER 7, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0785-WC
JAMES RAY FOLEY APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-20-00322
PEGASUS TRANSPORTATION/CRST
INTERNATIONAL; INDEMNITY
INSURANCE OF NORTH AMERICA;
HONORABLE THOMAS G. POLITES,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION
BOARD APPELLEES
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND MCNEILL, JUDGES.
MCNEILL, JUDGE: On March 11, 2018, Appellant, James Ray Foley (Foley),
sustained serious injuries resulting from an automobile collision. He was driving a
vehicle rented for him by his prospective employer, Pegasus Transportation/CRST
International (Pegasus). More specifically, after Foley had applied for a truck
driver position with Pegasus and it was determined that he was initially qualified,
Pegasus invited Foley to come to their Louisville facility to complete the
requirements necessary for an offer of employment. The purpose of providing
Foley with a rental vehicle is that if he was hired, he could leave the rental vehicle
in Louisville and begin driving for Pegasus, without leaving his personal vehicle
there and necessitating further delay. The collision and resulting injuries at issue
here occurred the day before Foley was scheduled to drive to Louisville.
Foley subsequently filed his Form 101, Application for Resolution of
Workers’ Compensation Claim. After a final hearing on the matter, the
Administrative Law Judge (ALJ) issued a sixteen-page opinion and order
dismissing Foley’s claim on the basis that there was no employer-employee
relationship at the time of the underlying injury. Foley petitioned the ALJ for
reconsideration, which was denied. He then appealed to the Workers’
Compensation Board (Board), which unanimously affirmed the ALJ’s
determinations. Foley now appeals to this Court as a matter of right. Having
reviewed the record and the law, we affirm.
STANDARD OF REVIEW
The ALJ has “the sole discretion to determine the quality, character,
weight, credibility, and substance of the evidence, and to draw reasonable
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inferences from the evidence.” Bowerman v. Black Equipment Co., 297 S.W.3d
858, 866 (Ky. App. 2009). Therefore, “appellate courts may not second-guess or
disturb discretionary decisions of an ALJ unless those decisions amount to
an abuse of discretion.” Id. (citing Medley v. Bd. of Educ., Shelby County, 168
S.W.3d 398, 406 (Ky. App. 2004)). “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, 302 (Ky. 1962)). “Substantial evidence means evidence of substance and
relevant consequence having the fitness to induce conviction in the minds of
reasonable men.” Smyzer v. B.F. Goodrich Chem. Co., 474 S.W.2d 367, 369 (Ky.
1971) (citation omitted). “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.’” Fresenius Medical Care Holdings, Inc. v. Mitchell, 507 S.W.3d
15, 19 (Ky. App. 2016) (quoting Kentucky Bd. of Nursing v. Ward, 890 S.W.2d
641, 642 (Ky. App. 1994)). With these standards in mind, we now turn to the
merits of the present case.
ANALYSIS
Foley argues that the ALJ and Board erred by: 1) failing to find an
implied employment contract between Foley and Pegasus; and 2) failing to find
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that Foley was an employee by virtue of performing services that benefitted
Pegasus at the time of his injury. As to his first argument, Foley specifically
contends that he had been promised employment by Pegasus’ recruiters and that he
relied on those promises to his detriment. The ALJ addressed these issues most
succinctly in its order denying Foley’s petition for reconsideration as follows:
Essentially [Foley] argues that because of the assurances
of employment made by [Pegasus], [Foley] engaged in
activities as part of his subjective belief of employment
in which he suffered his injury therefore the promises
made by [Pegasus’] personnel to him in the hiring
process were sufficient to compel a finding of
employment by estoppel. [Foley] cites UPS v. Rickett,
996 S.W.2d 464 (Ky. 1999) in support. As noted in the
Opinion there is no dispute in this claim that [Pegasus]
made assurances or promises to [Foley] that, if he
successfully performed them, he would be hired. These
promises were to present himself in Louisville on
Monday morning for participation in the remainder of the
hiring process, perform and pass a road test, pass a drug
screen, and complete other paperwork. [Foley] did not
complete any of these requirements as a result of his
motor vehicle accident and the ALJ ruled that [Foley]
was not far enough along in the hiring process to be
considered an employee as a matter of law. . . . The fact
remains, as set forth in the Opinion, that the Kentucky
Supreme Court seemed to make clear in [Rahla v.
Medical Center at Bowling Green, 483 S.W. 3d 360 (Ky.
2016)], that injuries that occur during the preliminary
aspects of the hiring process are not deemed to have
occurred in the course and scope of employment and that
is the exact situation the facts here present. . . .
[Foley] also argue[s] that [he] was performing
services that benefited [Pegasus] at the time of his injury
. . . . At no time was [Foley] herein performing work for
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[Pegasus] and as such, [Foley’s] Petition on this issue is
without basis.
In so holding, the ALJ addressed the additional authority argued by Foley. See
Hubbard v. Henry, 231 S.W.3d 124 (Ky. 2007) (finding that employment
relationship existed where claimant was actually performing work activities for the
employer on a trial basis); and Gaines Gentry Thoroughbreds/Fayette Farms v.
Mandujano, 366 S.W.3d 456 (Ky. 2012) (applying the “coming and going rule” to
hold in favor of an admitted employee who was injured while returning from a
work trip, although the employee delayed his return due to other reasons).
In its opinion affirming the ALJ, the Board also addressed Foley’s
arguments and authorities at length, ultimately agreeing that Foley’s claim was
properly dismissed. We also conclude that the ALJ’s opinion was based on
substantial evidence, i.e., “evidence of substance and relevant consequence having
the fitness to induce conviction in the minds of reasonable men.” Smyzer, 474
S.W.2d at 369 (citation omitted). More precisely, the ALJ meticulously discussed
the relevant evidence, observed that which favored both parties, and ultimately
found Pegasus’ evidence most convincing. This is squarely within the province of
the ALJ. And having considered the legal authority cited by Foley and discussed
by the underlying tribunals, we certainly cannot say that the ALJ’s ruling is based
on an “incorrect view of the law.” Mitchell, 507 S.W.3d at 19 (internal quotation
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marks omitted). Therefore, we ultimately conclude that the ALJ did not abuse his
discretion here.
CONCLUSION
For the foregoing reasons, we hereby affirm the Board, affirming the
decision issued by the ALJ.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE CRST
INTERNATIONAL/PEGASUS
John F. Kelley, Jr. TRANSPORTATION:
London, Kentucky
Johanna F. Ellison
Lexington, Kentucky
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