Commonwealth of Kentucky (Personnel Cabinet) v. Aimee Timmons ( 2021 )

RENDERED: JULY 2, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1844-WC
COMMONWEALTH OF KENTUCKY (PERSONNEL
CABINET) APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-17-01484
AIMEE TIMMONS; HONORABLE JEFF V.
LAYSON, III, ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
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BEFORE: COMBS, KRAMER, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: The Commonwealth of Kentucky (Personnel Cabinet)
petitions for review of the Workers’ Compensation Board (Board) opinion entered
on November 8, 2019, reversing and remanding the opinion and order entered on
July 25, 2019 by Administrative Law Judge (ALJ) Jeff V. Layson, III. Following
review of the record and the law, we affirm the decision of the Board.
At the time of her injury, Aimee Timmons was employed as a social
services clinician by the Commonwealth of Kentucky. As part of her employment,
Timmons worked with the state’s foster care program where she conducted
quarterly visits at foster parents’ homes and led various foster parenting training
sessions. Timmons typically began her workday at her employer’s main office in
Mayfield, Kentucky and traveled to in-home visits or off-site training sessions
from there. However, she would occasionally travel directly from her home to the
in-home visits or off-site training sessions. When Timmons’s employment
required her to work away from the Mayfield office, she was paid for her travel
time and mileage, regardless of whether she began her journey from there or
directly from her home. On occasions when Timmons commuted directly from her
home to an off-site work location, she was paid from the time she left home until
the time she returned home.
On June 17, 2017, Timmons was scheduled to conduct a training
session for foster parents at Liberty Baptist Church in Hickory, Kentucky. As she
was leaving her home for the church at around 7:15 a.m., Timmons tripped and fell
while walking down her front porch steps. She was immediately taken by
ambulance to Jackson Purchase Medical Center, where she was diagnosed with a
fractured left leg, requiring multiple surgical procedures.
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Timmons filed a Form 101, Application for Resolution of a Claim-
Injury, alleging a work-related injury from the fall down her front porch steps. The
Commonwealth denied Timmons’s claim, and on July 25, 2019, the ALJ issued an
opinion and order dismissing Timmons’s claim for failing to prove her injury
occurred within the course and scope of her employment with the Commonwealth.
Timmons appealed the ALJ’s order to the Board, and on November 8, 2019, the
Board reversed and remanded the ALJ’s decision, holding that Timmons fit within
the “traveling employee” and “benefit to the employer” exceptions to the “going
and coming” rule, thus placing Timmons’s injury within the course and scope of
her employment. This appeal followed.
A claimant in a workers’ compensation action must prove each of the
essential elements of her cause of action through “substantial evidence.” Wolf
Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App. 1984). Substantial evidence
is evidence of relevant consequence having the fitness to induce conviction in the
mind of a reasonable person. Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d
367 (Ky. 1971).
By virtue of statute, the ALJ is the exclusive fact finder, and the
determination of the quality, character, and substance of the evidence is left to the
sole discretion of the ALJ. Kentucky Revised Statute (KRS) 342.285(1); see also
Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky.App. 2009). An
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appellate tribunal is required to give considerable deference to an ALJ’s findings
of fact and cannot set them aside unless the evidence compels a contrary finding.
Miller v. Go Hire Emp. Dev., Inc., 473 S.W.3d 621, 629 (Ky.App. 2015). Reversal
of an ALJ’s opinion is only warranted where there was no evidence of substantial
probative value to support the ALJ’s decision. Id.Additionally, our review of a decision of the Board is limited to
whether “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.” W. Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
Regarding proper interpretation of the law or its application to the facts, we are not
bound by the decisions of an ALJ or the Board. In either case, the standard of
review is de novo. Bowerman, 297 S.W.3d 866.
To be compensable under the Workers’ Compensation Act a
claimant’s injury must arise out of and in the course and scope of her employment.
KRS 342.0011(1). Generally, when an employee is injured while commuting from
home to work or from work to home, compensation is denied. Kaycee Coal Co. v.
Short, 450 S.W.2d 262 (Ky. 1970). This rule is known as the “going and coming”
rule, and it applies to injuries sustained while the employee is traveling to and from
a fixed place of employment. Husman Snack Foods Co. v. Dillon, 591 S.W.2d 701(Ky.App. 1979). However, Kentucky courts have recognized several exceptions to
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this rule, including the “traveling employee” and the “service to the employer”
exceptions. See Black v. Tichenor, 396 S.W.2d 794 (Ky. 1965); Receveur Const.
Company/Realm, Inc. v. Rogers, 958 S.W.2d 18 (Ky. 1997).
The traveling employee exception applies where a worker’s
employment requires travel away from the employer’s premises. Tichenor, 396
S.W.2d at 797.
When travel is a requirement of employment and is
implicit in the understanding between the employee and
the employer at the time the employment contract was
entered into, then injuries which occur going to or
coming from a work place will generally be held to be
work-related and compensable, except when a distinct
departure or deviation on a personal errand is shown.
Olsten-Kimberly Quality Care v. Parr, 965 S.W.2d 155, 157 (Ky. 1998).
Here, it is undisputed that travel was a requirement of Timmons’s
employment. At the time of her injury, much of Timmons’s job requirements
consisted of conducting quarterly visits at foster parents’ homes and leading
training sessions at various off-site locations. In fact, the training session that
Timmons was scheduled to lead on the morning of her injury was the third such
event in a three-week span. The evidence of record indicated that Timmons was
paid for similar previous such travel from the time she left her home until the time
at which she returned home.
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The ALJ found that “Timmons was leaving her home at about 7:15
a.m. in order to drive straight to the church when she tripped and fell while
walking down the front porch steps of her house.” Ultimately, however, the ALJ
concluded that Timmons did not fit within the traveling employee exception to the
going and coming rule of non-compensability.
Although the ALJ noted the applicable exceptions, he erred in his
application of the law to the facts herein. The ALJ based his finding that
Timmons’s injury did not occur within the course and scope of her employment
with the Commonwealth on the fact that she was injured during an activity that she
would have done regardless of whether she was traveling to her employer’s
physical premises or to an off-site location, i.e., walking down the steps of the
front porch of her home.
The evidence of record indicated that Timmons was traveling to
Liberty Baptist Church, not to her fixed jobsite in Mayfield, to conduct a training
session as part of her employment with the Commonwealth when she tripped down
her front porch steps. At a hearing on May 29, 2019, Timmons testified to the
events of the morning of her injury:
Counsel: All right. If you would, just tell us what
happened to you on Saturday, June 17.
Timmons: I had – I was carrying a three-ring binder and
my purse. I’d closed the door to the house and my car
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was maybe 30, 35 steps away from my front door. I was
going down the porch steps and fell.
Counsel: When had you gotten up that morning?
Timmons: Probably around 6:00 a.m.
Counsel: And you were leaving the house at what time?
Timmons: Around 7:15.
Counsel: If it were not for this work that you had to do
that day, would you have been out at 7:15 on a Saturday
morning?
Timmons: Not – not typically. I mean, there may have
been some other time for some reason I could have but
standardly, no. On Saturday, I’m not going to get up at
7:15 and be outside for any reason.
Counsel: All right. You mentioned that you had a three-
ring binder?
Timmons: It was about a three inch –
Counsel: Three-inch binder?
Timmons: It was a three-ring, three-inch binder.
Counsel: All right.
Timmons: It was big.
Counsel: And what was in the binder?
Timmons: The training manual.
As articulated by the Board in its opinion, “[b]ut for the Commonwealth requiring
[Timmons] to conduct the training session as a function of her employment, she
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would not have been walking down her steps and to her car, thick work binder in
hand, in the early morning hours of Saturday, June 17, 2017.” Thus, we agree with
the Board that the ALJ erroneously concluded that Timmons did not fit within the
traveling employee exception to the going and coming rule.
Turning to the “service to the employer” exception, the ALJ correctly
opined that, under the traditional view of the going and coming rule, Timmons
would not have been covered by the Act if she had been injured while traveling to
her employer’s premises in Mayfield. “[An] employee is not performing any
service for the employer merely by traveling to and from a fixed work site.”
Spurgeon v. Blue Diamond Coal Co., 469 S.W.2d 550, 553 (Ky. 1971). However,
the ALJ erred in finding that the circumstances surrounding Timmons’s injury did
not fit within the service to the employer exception to the going and coming rule.
Under the service to the employer exception, “transitory activities of
employees are covered if they are providing some service to the employer[.]”
Receveur, 958 S.W.2d at 20. As noted by the Kentucky Supreme Court, in the
context of this particular exception, “work-related travel has come to mean travel
which is for the convenience of the employer as opposed to travel for the
convenience of the employee.” Id. For example, in Receveur, an employee was
killed while driving a company vehicle home from a remote job site. Id. There,
the Court held that the employee’s injury was covered because, although the
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employee’s use of the company vehicle was a convenience to him, it was primarily
provided for the benefit of the employer, explaining:
The employer’s purpose in providing such a vehicle to
Rogers was to allow him to better perform the
requirements and completion of his duties. Included
within such objective was the premise that use of the
company truck as transportation between Rogers’ home
and the job site would allow Rogers to begin his actual
duties earlier, and to remain productive longer, by
avoiding a stop at the company’s business office in
Louisville. Thus, although the use of such a conveyance
was a convenience for Rogers, it was primarily of benefit
to the employer. Hence, as it can be concluded that
Rogers was performing a service to the employer at the
time of his death, it can be determined that his death was
work-related under the service to the employer exception
to the going and coming rule.
Id. at 21.
Although Timmons was not provided a company vehicle like the
employee in Receuver, her claim is quite similar as it relates to the service to the
employer exception. The evidence of record indicates that the Commonwealth
allowed Timmons to travel straight from her home to off-site locations as part of
her employment. While the Commonwealth’s allowing Timmons to commute
straight from her home to the off-site training sessions may have presented a
logistical benefit to her, there was substantial evidence to support a conclusion that
it was a benefit to her employer. Timmons testified that when she would visit with
foster parents in their homes or conduct off-site trainings, such as the one on the
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date of her injury in this case, she was paid from the time she left her home until
the time that she returned home. Further, Timmons testified that she was
reimbursed for the mileage traveled to off-site locations for work:
Counsel: Now when you were working away from the
Mayfield office, whether it was a home visit or
instruction that you were giving to foster parents, were
you paid for all of that time?
Timmons: Yes.
Counsel: Including the time that it took to travel to those
locations?
Timmons: Yes.
Counsel: Were you also paid mileage for the miles that
you traveled in your car?
Timmons: Yes.
Counsel: To go to and from those locations?
Timmons: Yes.
By allowing Timmons to travel straight to the off-site locations from her home, the
Commonwealth presumably gained the benefit of being able to pay Timmons less
for the time and mileage that she otherwise would have spent commuting to the
Mayfield office before traveling to the off-site locations. Accordingly, we hold
that the Board correctly found that Timmons’s injury falls squarely within the
“traveling employee” and “service to the employer” exceptions to the going and
coming rule.
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The Commonwealth also devotes a portion of its brief to arguing that
the Board impermissibly usurped the authority of the ALJ. The Board, as an
appellate tribunal, “may not usurp the ALJ’s role as fact-finder by superimposing
its own appraisals as to weight and credibility or by noting other conclusions or
reasonable inferences that otherwise could have been drawn from the evidence.”
Miller, 473 S.W.3d at 629 (citing Whittaker v. Rowland, 998 S.W.2d 479, 482 (Ky.
1999)). However, in the present case, the Board did not make impermissible
factual findings, nor did the Board substitute its determination of the facts for those
of the ALJ. Rather, the Board merely found that the ALJ erroneously applied the
law to the facts before him. Specifically, the Board determined that the ALJ erred
in finding that Timmons’s injury did not fit within the traveling employee and
service to the employer exceptions to the going and coming rule. Therefore, the
Board did not impermissibly usurp the fact-finding role of the ALJ.
For the foregoing reasons, we AFFIRM the opinion and order of the
Workers’ Compensation Board.
COMBS, JUDGE, CONCURS.
KRAMER, JUDGE, DISSENTS AND DOES NOT FILE
SEPARATE OPINION.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE AIMEE
TIMMONS:
Robert F. Ferreri
Aaron M. Schechter Rodger W. Lofton
Louisville, Kentucky Paducah, Kentucky
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