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March 24, 2017 201502010

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  March 24, 2017

 

 

CLAIM NO. 201502010

 

 

BILLY JOE GIBSON                               PETITIONER

 

 

 

VS.       APPEAL FROM HON. STEPHANIE L. KINNEY,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

COLUMBUS HOGGS AGENT

HON. STEPHANIE L. KINNEY,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

 

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

ALVEY, Chairman.   Billy Joe Gibson (“Gibson”) appeals from the Opinion, Award and Order rendered July 11, 2016 by Hon. Stephanie L. Kinney, Administrative Law Judge (“ALJ”), dismissing his claim for injuries sustained in a motor vehicle accident (“MVA”) on December 16, 2013.  Gibson also appeals from the October 20, 2016 order denying his petition for reconsideration.  

          On appeal, Gibson argues the ALJ erred in dismissing his claim by failing to properly apply either the benefit to the employer or the dual purpose doctrine exceptions to the “going and coming” rule.  The ALJ performed the appropriate analysis in determining Gibson’s injuries are not compensable because they occurred while carrying out a personal errand with no business purpose being served.  Likewise, the ALJ did not err in determining the route to his daughter’s school was a substantial deviation from his required business travels.  We also note Gibson did not argue the applicability of the dual purpose doctrine before the ALJ in either his brief, or in his petition for reconsideration.  Likewise, this was not specifically raised as an issue at the benefit review conference (“BRC”).  Because the ALJ applied the appropriate standard, and a contrary result is not compelled, we affirm.

          Gibson filed a Form 101 alleging he injured both of his arms and shoulders, as well as his neck and low back, along with associated headaches, when he was rear-ended while stopped at a stop sign, “on US 119 near Pike Central High School in Pike County,” on December 16, 2013.  Gibson disclosed he had previously filed a workers’ compensation claim for a neck and back injury occurring in 1989, and he eventually had cervical surgery.  Because the sole issue on appeal is whether Gibson’s injuries occurred within the course and scope of his employment with Columbus Hobbs Agent (“Columbus”), the medical evidence will not be discussed. 

          Gibson testified by deposition on March 28, 2016, and at the hearing held May 23, 2016.  He resides in Pikeville, Kentucky, and began working as a well tender for gas companies after he was injured in a 1989 coal mining accident.  He has worked for Columbus since 1994 as a well tender.  Gibson is responsible for thirty-five to forty wells located in Pike and Martin counties in Kentucky.  His responsibilities include checking meters, repairing leaks, walking gas lines, carrying pipe, lifting gas meters, mowing, weed eating, trimming bushes, and traveling from location to location.  Gibson sets his own schedule, but is on call twenty-four hours a day.  Prior to the MVA, Gibson had a helper who assisted him with job tasks which required two people. 

          Columbus furnished Gibson a truck which he kept in his possession at all times, and drove every day.  Gibson was not required to turn in the truck to Columbus and was not provided restrictions on its use.  Columbus paid for the automobile insurance and fuel, and provided Gibson with the tools necessary to perform his job.  Gibson took the company truck home every night.  Gibson testified no representative from Columbus told him he could not use the company truck for personal use.  Gibson testified it was normal for him to travel directly from his home to the wells, and he did not have to first report to an office.    

          On the morning of December 16, 2013, Gibson left his home driving the company truck, a three-quarter ton GMC.  He was going to work on a gas well at Island Creek that morning, but first dropped off his stepdaughter at Pike Central High School.  Gibson was stopped at a stop sign in the school parking lot while waiting to exit the Pike Central High School premises in order to pull onto US 119 when he was rear-ended by a driver of another vehicle.  Gibson confirmed he was still in the school parking lot at the time of the MVA.  At the hearing, Gibson provided the following testimony:

Q:  The day that you had this accident, you have already testified you were dropping off your girl at Pike Central High School, I think it was; is that correct?

 

A:  Yes.

 

Q:  Had you done that before?

 

A:  Yes.

 

Q:  Had anybody ever told you not to do that?

 

A:  No.

 

Q:  And were you using that - - Once you dropped her off, where were you going?

 

A:  To Island Creek here in Pikeville to a gas well location.

 

Q:  Okay.  And had you left directly from your house?

 

A:  Yes.

 

. . . .

 

Q:  Okay.  This - - This truck for them, do you use it essentially every day?

 

A:  Yes.

 

Q:  And the direction you were going to go to Island Creek, was that the same direction where your daughter was essentially in school?

 

A:  Yes.

 

Q:  So other than pulling in the parking lot and pulling out, did you really deviate from anything where you were going at that time to work on Island Creek?

 

A:  No. 

 

          The local police investigated the accident and prepared a report.  Gibson went home after the MVA and soon developed symptoms in his neck and shoulders, as well as a headache.  After the accident, he received treatment from various medical providers.  Dr. Leon Ravvin recommended cervical surgery.    

          After missing a few weeks of work, Gibson resumed his duties with Columbus as a well tender earning the same salary.  Gibson testified he now works only half of his previous hours due to continued symptoms, and effective May 1, 2016, Columbus reduced his salary from $3,700.00 to $2,700.00 per month.  Gibson has continued responsibility for thirty-five to forty wells, but physically only tends to twenty of them.  Gibson filed a civil suit against the other driver, which resulted in a settlement. 

          The traffic collision report was submitted into evidence by Columbus.  The investigating officer noted Gibson was stopped at the intersection of US 23[1] and the Pike Central High School entrance when he was rear-ended.  Likewise, the accompanying diagram indicates Gibson was waiting to turn right onto US 23 North from the school at the time of the MVA.  The Silverado Crew Cab driven by Gibson sustained minor damage. 

          In her opinion rendered July 11, 2016, the ALJ summarized the lay and medical evidence.  The ALJ provided the following analysis in determining Gibson’s injury occurred while he was engaged in a substantial deviation from the course and scope of his employment to perform an entirely personal errand, and dismissed his claim:  

The rule as to whether an injury occurred in course of employment was stated in Receveur Construction, Co. v. Rogers, 958 S.W.2d 18, 20 (Ky. 1997), as follows:  

 

The general rule is that injuries sustained by workers when they are going to or returning from the place where they regularly perform the duties connected with their employment are not deemed to arise out of and in the course of the employment as the hazards ordinarily encountered in such journeys are not incident to the employer's business.

 

Generally, an injury which occurs on the way to or from work is considered not to be in furtherance of the employer’s business.  Therefore, the injury is not considered to be within the course and scope of employment and, as such, is not work-related or compensable.  Fortney v. Airtran Airways, Inc., 319 S.W.3d 328 (Ky. 2010). There are exceptions to the “going and coming” rule, particularly if the journey is part of the services for which the worker is employed. Id.

 

The “going and coming” rule excludes an employee’s injuries as being covered under workers' compensation law when sustained on his way to or from the place where he actually performs employment connected[sic] duties as they are not deemed to arise out of and in the course of the employment.  Harlan Collieries v. Shell, 239 S.W.2d 923 (Ky. 1951) and Kaycee Coal Co. v. Short, 450 S.W.2d 262 (Ky. 1970).  There are exceptions to the general rule.  An injury is merely incidental to the employment unless the employee is engaged in some service to the employer.  Howard D. Sturgill and Sons v. Fairchild, 647 S.W.2d 796 (Ky. 1983); Olsten-Kimberly Quality Care v. Parr, 965 S.W.2d 156 (Ky. 1998).  Therefore, in order to be eligible for workers’ compensation benefits, when a job involves travel and an employee is injured outside the employer’s operating premises, the employee must be engaged in work duties or activities which are providing service or furthering the interests of the employer at the time of the injury.  Receveur Construction Co./Realm, Inc. v. Rogers, 958 S.W.2d 18 (Ky. 1997).  Although an employee may be on an employer’s operating premises when injured, if the activity in which the employee is engaged at the time of the accident is a substantial deviation from his work activities, then the employee may not necessarily be considered within the course and scope of their employment.  Ratliff v. Epling, 401 S.W.2d 43 (Ky. 1966).

 

The Defendant has argued Plaintiff deviated from his normal work route for a purely personal side trip to drop his step-daughter off at school.  The Defendant further argues there was no business purpose served by Plaintiff’s side trip to the high school which was ‘clearly severable’ according to Larson’s §17.03.

 

As applied to this case, the Administrative Law Judge finds Plaintiff’s personal errand, which took him away from his normal travel route to his daughter’s school, provided no service to the employer and, as such, the accident, which occurred during the deviation for the entirely personal errands, is not work-related and therefore not compensable. In reaching this conclusion, the Administrative Law Judge rejects Plaintiff’s argument that any injury which occurs while operating a company provided vehicle is compensable so long as the vehicle was originally supplied to the employee as part of a service to the employer. Here, Plaintiff argues the company van was provided so he could more reliably be available to show up at the various work locations and, as such, any use of the vehicle thereafter constitutes a service to the employer.  The Administrative Law Judge is not persuaded that the current “going and coming” case law in Kentucky can be interpreted to hold that any injury incurred while operating a company provided vehicle is compensable, regardless of the personal use and lack of business purpose of the vehicle at the time of the accident, so long as the vehicle was originally provided in furtherance of some business interest to the employer.  Barring such an interpretation, it is determined Plaintiff’s accident in this case is not compensable as a matter of law because it occurred while on an admittedly personal errand with no business purpose being served and it required a substantial deviation from Plaintiff’s normal travel route to his daughter’s school. The Administrative Law Judge’s research of applicable law and review of the cases cited by each party does not yield any precedent to undermine or overturn the basic premise set forth in Fortney v. Airtran Airways, Inc., 319 S.W.3d 328 (Ky. 2010) as described above. Therefore, because Plaintiff’s injury occurred while he was engaged in a substantial deviation from his regular work activity of taking a normal travel route to a work site to instead perform an entirely personal errand, his injury is not compensable.  His claim must therefore be dismissed.

 

     Gibson filed a petition for reconsideration asserting Kentucky law allows for a deviation for the “going and coming” rule, and the ALJ did not discuss the Board’s opinion of First Class Services, Inc. v. Hensley, Claim # 2012-60799, (rendered August 14, 2015).  Gibson requested the ALJ reconsider her determination the deviation was not a violation of the “going and coming” rule, and Gibson was immediately resuming his employment to go directly to the well site at the time of the MVA. 

          The ALJ provided the following additional analysis in her October 20, 2016 order denying Gibson’s petition: 

In Hensley’s case, he was returning home due to an illness.  Hensley was driving a company vehicle which he drove from his home to various delivery check points.  Hensley became ill and elected to return home.  In Hensley, the Workers’ Compensation Board cited Gaines Century Thoroughbreds/Fayette Farms v. Mandujano, 366 S.W.3d 456 (Ky. 2012).  The Kentucky Supreme Court held that an injury that occurs while an employee is in travel status is deemed to be work-related unless the worker was engaged in a significant departure from the purpose of the trip.  Id.

 

Plaintiff’s situation does not parallel Hensley’s scenario.  In the case sub judice, Plaintiff deviated from his job to attend to a purely personal mission wherein he dropped his daughter off at school.  Plaintiff’s presence at the site of the motor vehicle accident was not related to his employment, but was predicated upon his need/responsibility to drop his daughter off at school.  Plaintiff was rear-ended in the school parking lot where he dropped his daughter off.  Work-related travel was not what placed Plaintiff at what turned out to be a place of danger, where he was rear-ended and injured.  Plaintiff’s presence at the motor vehicle accident was due to a significant departure from Plaintiff’s work travel route.  The Workers’ Compensation Board held Hensley did not deviate from his route to return home after becoming ill.  That is not the case here.  Plaintiff deviated from his route from his home to a well site in order to take his daughter to school.  This was not a necessary and inevitable act of completing a journey for the employer.  Thus, Plaintiff was not a traveling employee based upon dictates outlined in the cases cited herein. 

 

          On appeal, Turner argues the ALJ failed to properly apply the “service/benefit” exception to the “going and coming” rule.  Turner also argues his trip was work-related under the dual purpose doctrine.  Craddock v. Imperial Casualty and Indemnity Company, 451 S.W.2d 658 (Ky. 1970).   

  As the claimant in a workers’ compensation proceeding, Gibson had the burden of proving each of the essential elements of his cause of action, including whether his injury occurred within the course and scope of his employment.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Since Gibson was unsuccessful in his burden, the question on appeal is whether the evidence compels a different result.  Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). “Compelling evidence” is defined as that which is so overwhelming no reasonable person could reach the same conclusion as the ALJ.  REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985).  The function of the Board in reviewing the ALJ’s decision is limited to a determination of whether the findings made by the ALJ are so unreasonable under the evidence they must be reversed as a matter of law.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

In rendering a decision, KRS 342.285 grants an ALJ as fact-finder the sole discretion to determine the quality, character, and substance of evidence.  Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).  The ALJ may draw reasonable inferences from the evidence, reject any testimony, and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof.  Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).  Although a party may note evidence supporting a different outcome than reached by an ALJ, this is not an adequate basis to reverse on appeal.  McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).  Rather, it must be shown there was no evidence of substantial probative value to support the decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). 

          The function of the Board in reviewing an ALJ’s decision is limited to a determination of whether the findings made are so unreasonable under the evidence that they must be reversed as a matter of law.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).  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.  Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).

          The “going and coming” rule was stated by the Kentucky Supreme Court in Receveur Construction, Co. v. Rogers, 958 S.W.2d 18, 20 (Ky. 1997), as follows:

The general rule is that injuries sustained by workers when they are going to or returning from the place where they regularly perform the duties connected with their employment are not deemed to arise out of and in the course of the employment as the hazards ordinarily encountered in such journeys are not incident to the employer’s business.

 

          See also Haney v. Butler, 990 S.W.2d 611 (Ky. 1999); Olsten-Kimberly Quality Care v. Parr, 965 S.W.2d 155, 157 (Ky. 1998); Baskin v. Community Towel Service, 466 S.W.2d 456 (Ky. 1971); Kaycee Coal Co. v. Short, 450 S.W.2d 262 (Ky. 1970).  The “going and coming” rule generally applies to travel to and from a fixed-situs or regular place of work where an employee’s substantial employment duties begin and end. 82 Am.Jur.2d Workers' Compensation §270 (2003); Larson’s Workmen’s Compensation §13.01[1].  One rationale of the “going and coming” rule is that going to and coming from work is the product of the employee’s own decision on where to live, which is a matter ordinarily of no interest to the employer.  Collins v. Kelley, No. 2002-CA-002472-MR, 2004 WL 1231633 (Ky. App. 2004).

          There are several exceptions to the “going and coming” rule, including the traveling employee doctrine and the service to the employer exception.  The traveling employee doctrine provides:

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.  (Emphasis added)

 

          William S. Haynes, Kentucky Jurisprudence, Workers’ Compensation, § 10-3 (revised 1990).  Professor Larson elaborates, “[e]mployees whose work entails travel away from the employer’s premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown.”  Larson's Workmen’s Compensation, § 25.01. (Emphasis added).                                         The traveling employee doctrine is well established in Kentucky jurisprudence.  In Black v. Tichenor, 396 S.W.2d 794, 796-97 (Ky. 1965), the Supreme Court held as follows:   

It is quite a different thing to go to and from a work site away from the regular place of employment, than it is to go to and from one’s home to one’s usual place of employment; it is the latter which generally comes within the so-called ‘going and coming rule’ absolving employers from Workmen’s Compensation liability.  The former comes within the principle stated in Larson, Workmen’s Compensation Law, Vol. 1, Sec. 25.00: ‘Employees whose work entails travel away from the employer’s premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable.’ Turner Day & Woolworth Handle Company v. Pennington, 250 Ky. 433, 63 S.W.2d 490 [(1933)]; Standard Oil Company v. Witt, 283 Ky. 327, 141 S.W.2d 271 [(1940)].

 

Although traffic perils are ones to which all travelers are exposed, the particular exposure of Tichenor in the case at bar was caused by the requirements of his employment and was implicit in the understanding his employer had with him at the time he was hired. Palmer v. Main, 209 Ky. 226, 272 S.W. 736 [(1925)]; Hinkle v. Allen Codell Company, 298 Ky. 102, 182 S.W.2d 20 [(1944)]. In the recent case of Corken v. Corken Steel Products, Inc. (1964), Ky., 385 S.W.2d 949, where a traveling salesman was killed on a public street by a demented stranger, we approved an award of compensation, and said:


We accept the view that causal connection is sufficient if the exposure results from the employment. Corken’s employment was the reason for his presence at what turned out to be a place of danger, and except for his presence there he would not have been killed.

 

          Thus, the traveling employee exception to the “going and coming” rule is grounded in the “positional risk” doctrine, articulated by the Supreme Court in Corken v. Corken Steel Products, Inc., 385 S.W.2d 949 (Ky. 1964).

          In Gaines Gentry Thoroughbreds/Fayette Farms v. Mandujano, 366 S.W.3d 456, 463-464 (Ky. 2012), the Kentucky Supreme Court held as follows:

Kentucky applies the traveling employee doctrine in instances where a worker’s employment requires travel. Grounded in the position risk doctrine, the traveling employee doctrine considers an injury that occurs while employee is in travel status to be work-related unless the worker was engaged in a significant departure from the purpose of the trip.  The ALJ did not err by concluding that the traveling employee and position risk doctrines permitted compensation in this case.

 

The claimant’s accident did not occur while he was working for Eaton or Paramount but while he was traveling from Saratoga back to Lexington.  As found by the ALJ, the parties contemplated that he would work at the sales and return to his duties at the farm when the sales ended.  The accident in which he was injured occurred during the “necessary and inevitable” act of completing the journey he undertook for Gaines Gentry.  In other words, travel necessitated by the claimant’s employer placed him in what turned out to be a place of danger and he was injured as a consequence. (Emphasis added).

 

          The Kentucky Supreme Court also recognized the “service to the employer” exception to the “going and coming” rule in Receveur Construction, Co. v. Rogers, 958 S.W.2d 18, 20 (Ky. 1997).

          In Receveur, the employer’s construction company was located in Louisville and the employee’s residence was in Campbellsville.  The employee worked at remote job sites around the region.  Shortly before the fatal MVA underlying the claim, Rogers had been promoted to project superintendent and was issued a company vehicle.  The truck was equipped with a CB radio, which allowed him to communicate with Receveur Central Office during the day.  The truck was to be used as a means of transportation both during the course of the workday and between Roger’s home and job site so he would not be required to first go to the central office in Louisville. Rogers was provided a credit card to cover the cost of fuel for the vehicle.  He was not paid for travel time between his home and work though he was paid for travel time between the central office and remote job sites.  On the day of the accident, Rogers had been working at a remote job site in Indiana.  He returned in the company truck to the central office in Louisville where he unloaded a truckload of rubbish.  Rogers then left for home in the company truck when the accident occurred.

          The Kentucky Supreme Court acknowledged that generally injuries incurred while traveling to and from work are not deemed to arise out of and in the course of the employment.  However, the Court held the accident to be compensable under the “service to the employer” exception. Id. at 20.  (citing Standard Gravure Corporation v. Grabhorn, 702 S.W.2d 49 (Ky. App. 1985); Spurgeon v. Blue Diamond Coal Company, 469 S.W.2d 550 (Ky. 1971); Ratliff v. Epling, 401 S.W.2d 43 (Ky. 1966); and Palmer v. Main, 209 Ky. 226, 272 S.W.2d 736 (Ky. 1925)).  The Court in its reasoning did not focus on the particular trip during which the accident occurred, but rather the benefit the employer received generally from Rogers’ use of the company vehicle.  The Court applied “some benefit” test to the particular facts and in finding work-relatedness stated: 

Therefore, based on our interpretation of the applicable case law as summarized above, as well as the facts presented in the case at bar, it appears that there was substantial evidence to support a conclusion that Rogers’ use of the company truck was of benefit to the company.  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.

 

          The Court further noted the claim contained no specific allegation of substantial deviation from the course and scope of employment.   

In view of the foregoing, we need not . . . reach the question of whether we adopt the theories that an employer’s deliberate and substantial payment for the expense of travel, the employer’s issuance of a company vehicle, or the employer’s furnishing of transportation in a conveyance, makes the journey held to be in the course of employment. [citation omitted].  Nor do we find that the evidence compelled the conclusion that there was a substantial deviation from the course and scope of the employment, and there is no such specific allegation herein. 

 

Id.  (Emphasis added); See also Port v. Kern, 187 S.W.3d 329 (Ky. App. 2006); 

In Fortney v. Airtran Airways, Inc., 319 S.W.3d 325, 329 (Ky. 2010), the Kentucky Supreme Court held the rule excluding injuries occurring off of the employer’s premises, during travel between work and home, does not apply if the travel is part of the service for which the worker is employed, or otherwise benefits the employer.  Fortney, a pilot for the employer, resided in Lexington, Kentucky while his work was based in Atlanta, Georgia.  He flew between Lexington and Atlanta, and was not reimbursed for his commuting-related expenses.  However, the employer provided free or reduced fare travel to its employees and their families.  Fortney was killed when the plane in which he was a passenger crashed on takeoff in Lexington in route to Atlanta.  Ultimately, the Court remanded the claim to the ALJ since he failed to consider whether the free or reduced fare arrangement induced the claimant to accept or continue employment with Airtran.  Id. at 330.  There was no allegation of substantial deviation on Fortney’s part.

In this instance, the ALJ engaged in a proper analysis in determining Gibson substantially deviated from the course and scope of his employment at the time of the MVA, and no contrary result is compelled.  It is undisputed Gibson was provided a company vehicle which he used for Columbus’ benefit, as well as for personal use and errands.  Gibson used the vehicle to travel to the numerous gas wells located within his territory.  He was provided tools which he stored in the vehicle.  Although he set his own schedule, Gibson stated he was on call twenty-four hours a day.  Columbus acknowledges Gibson’s travel to the gas wells was a necessary part of his service.  Columbus also acknowledges injuries occurring while traveling from Gibson’s home to the wells and from the wells to home would be considered in the course and scope of his employment, and compensable.

However, the traveling employee doctrine and the service to the employer exception do not apply when there is a significant departure or deviation from the course and scope of the employment.  The ALJ found that at the time of the MVA, Gibson was engaged in the personal errand of dropping off his stepdaughter to school with no business purpose being served, and this constituted a substantial deviation from his regular work activity of taking a normal travel route to a work site.  The exceptions do not apply under these circumstances since Gibson was not merely traveling between home and work sites at the time of his injury.  Although he was attempting to resume his travel to service a well, he had not yet done so, and at the time of the accident he was still engaged in a personal errand.  His deviation was not part of the service for which he was employed and did not benefit Columbus.  See Abbott Laboratories v. Smith, 205 S.W.3d 249 (Ky. App. 2006).

          Receveur, supra; Kern, supra; and Fortney, supra, are factually distinguishable from the case sub judice.  In all of those situations, the claimants were injured while traveling between work and home in company-provided vehicles or at company expense, and not during a portion of a journey to complete a purely personal errand outside of the normal route home.  Likewise, none of these cases involved an allegation of a substantial deviation from the course and scope of the employment as in the case sub judice.  Additionally, there was no evidence the personal errand was, “still part of the integral and necessary travel for the business.”  See Abbott Laboratories v. Smith, supra.  Based upon the foregoing, the ALJ’s dismissal of this claim is supported by substantial evidence and a contrary result is not compelled.

          Regarding Gibson’s argument pertaining to the dual purpose doctrine, we acknowledge this exception was addressed in Craddock v. Imperial Casualty and Indemnity Co., supra.  There the court adopted the rule then enunciated in Larsons, which states:

Therein it is pointed out that when a trip serves both business and personal purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the job purpose and would have been dropped in event of the failure of the private purpose, though the business errand remains undone; it is a business trip if a trip of this kind would have been made in spite of the failure or absence of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with the employee’s personal journey. If permission to take a personal trip is made conditional on the performance of a business errand, the trip becomes a business trip.

 

          This holding was later reaffirmed in Lycoming Shoe Co. v. Woods, 472 S.W.2d 257 (Ky. 1971).  In this instance, the deviation from the business route was strictly personal in nature.  Clearly Gibson had not resumed the business purpose of the trip at the time of the accident, although he was attempting to do so.  This was not specifically raised as an issue at the BRC.  We additionally note Gibson did not raise the dual purpose doctrine in either his brief to the ALJ or his petition for reconsideration, thereby depriving the ALJ of the opportunity to address this issue.  Even if properly preserved, this would not compel a contrary determination by the ALJ.   

          Accordingly, the July 11, 2016, Opinion, Award and Order and the October 20, 2016 order on petition for reconsideration rendered by Hon. Stephanie L. Kinney, Administrative Law Judge, are hereby AFFIRMED.

          ALL CONCUR.

 

 

 

COUNSEL FOR PETITIONER:

 

HON RANDY G CLARK

PO BOX 1529

PIKEVILLE, KY 41502

 

COUNSEL FOR RESPONDENT:

 

HON BONNIE HOSKINS

PO BOX 24564

LEXINGTON, KY 40524

 

ADMINISTRATIVE LAW JUDGE:

 

HON STEPHANIE L KINNEY

PREVENTION PARK

657 CHAMBERLIN AVE

FRANKFORT, KY 40601

 

 



[1] Gibson asserts the reporting officer erroneously identified the road as US 23.  Gibson asserts the report should have reflected the road was US 119.