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.