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Workers’
Compensation Board
OPINION ENTERED: March 31, 2017
CLAIM NO. 201392143
PROFESSIONAL FINANCIAL SERVICES PETITIONER
VS. APPEAL FROM HON. R ROLAND CASE,
ADMINISTRATIVE LAW JUDGE
SERENA GORDON
HON. R ROLAND CASE,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Professional Financial Services (“PFS”) appeals from the October 5,
2016 Opinion, Award and Order, and the November 9, 2016 order denying its
petition for reconsideration rendered by Hon. R. Roland Case, Administrative
Law Judge (“ALJ”). The ALJ found Serena
Gordon (“Gordon”) sustained a work-related injury on February 25, 2013, and
awarded temporary total disability (“TTD”) benefits, permanent partial
disability (“PPD”) benefits and medical benefits. On appeal, PFS argues the ALJ erred in
determining Gordon’s claim is work-related under the “coming and going”
rule. PFS also argues the ALJ failed to
provide sufficient findings of fact or analysis of law. For the reasons set forth herein, we
affirm.
The facts relevant to this appeal are largely
undisputed. Because the medical evidence
has no bearing on the issues raised on appeal, it will not be discussed.
Gordon injured her left knee, ankle and foot on February
25, 2013 as she stepped from a curb while going to her car. At the time of the accident, Gordon was the
branch manager for PFS, an automobile financing company. As
branch manager, she spent approximately seventy percent of her time in the
office. The remainder of her time was
spent attending automobile auctions, visiting dealerships, and collecting
accounts. PFS provided a tablet for
Gordon’s use outside the office. She
used the tablet to process requests for financing from dealerships, and would
often work from home via the tablet.
On
February 25, 2013, Gordon had worked late
to catch up on collections because it was nearly the end of the month. Upon reaching her car, Gordon realized she
had left behind the tablet PFS provided for her to use while out of the office. She returned to her office, got the tablet, and
was returning to her car when she stepped off of the curb rolling her left
ankle which caused her to fall.
Nat Reider (“Reider”),
a regional manager for PFS, testified branch managers, like Gordon, may take
tablets home with them. Business may be
conducted via the tablet. Branch
managers are on call to dealerships in order to process credit
applications. It is not unusual to take
tablets home for this purpose.
Proof was developed
concerning whether PFS maintained the parking lot where Gordon was
injured. Gordon testified she had no
parking pass for PFS parking. The
parking spots were not numbered. There
was no parking spot specifically bearing her name.
Amy Paxton Mellinger,
an employee of Fortune Business Property Management (“Fortune”), testified
Fortune owns the building where the PFS offices are located in Lexington. PFS is located in one of eleven buildings
Fortune owns in the office complex.
There is open parking throughout the complex, and PFS shares the parking
lot with the other tenants. No specific
parking spots are reserved and no parking passes are required. Fortune has no agreement with PFS regarding
where its employees are supposed to park.
Tenants are only responsible for maintenance within the walls of their
leased space.
Reider also testified
PFS does not maintain the sidewalks, parking lots, or landscaping, and has no
specifically reserved parking spots.
Additionally, Jason Scott Claypool (“Claypool”), current branch manager
for PFS in Lexington, testified no PFS employee is advised to park in a
specific location. The parking lot is
shared by other businesses, and the parking spots are not numbered. In addition to employees, parking spots are
used by vendors, deliverers and customers.
PFS does not pay for parking spots.
He stated the sidewalk and curb had been repaired prior to the date of
the accident.
In the decision
rendered October 5, 2016, the ALJ first noted the general rule that injuries
occurring while an employee are coming and going to work are not compensable. He then considered whether PFS maintains the
parking lot where Gordon’s injury occurred.
He concluded PFS does not maintain the parking lot, and therefore it
cannot be considered part of PFS’ operating premises. That finding has not been appealed.
The ALJ next recognized
that “workers’ compensation coverage can extend to injuries occurring outside
the boundaries of the employers’ premises”, and considered whether any
exceptions applied to Gordon’s situation.
He explained:
Again it is a fact sensitive analysis as to
whether or not an injury occurred within the course and scope of employment. In
this case the plaintiff had been issued a tablet by her employer to finish work
at home. The plaintiff indicated that many times after she left work she would
take calls from dealers in her vehicle and use the employer’s tablet. She also
indicated that it was normal practice that she would work at home at different
times. She also indicated the tablet was issued to her by the employer and
could only be used to do work. In other words this clearly was not a personal
tablet for her personal use but was provided to her by the employer for work.
In this case the plaintiff had forgotten the tablet and returned to the office
to retrieve the tablet and while returning to her car sustained an injury. Considering the totality of the circumstances
the ALJ is persuaded that the plaintiff sustained a work related injury. The
act of retrieving the tablet to take same home for use was for the benefit of
the employer and not for her personal benefit. Clearly the employer obtained a
benefit by her having the employer issued tablet at her disposal at home. Under
the specific facts of this case the ALJ is persuaded that the plaintiff
sustained a work related injury.
PFS filed a petition
for reconsideration requesting the ALJ engage in further analysis regarding
compensability pursuant to the applicable parking lot, and “coming and going”
rule cases. PFS additionally requested
the ALJ provide additional analysis as to why this case is distinguishable from
the holding in Hanik v. Christopher & Banks, Inc., 434 S.W.3d 20
(Ky. 2014); why walking from her office to her car provided some benefit to her
employer; when in the sequence of events leading up to the injury Gordon’s activity
became beneficial for the employer; and, whether the ALJ intended to find
Gordon’s entire trip from the office to her private residence was in the course
and scope of her employment, “because she might do work from home.” The petition was overruled by the ALJ in an
order entered November 9, 2016, which states, “The defendant’s position is
nothing more than a re-argument of the case.”
The ALJ provided no additional analysis as had been requested by PFS.
PFS first argues there
is no substantial evidence to support an applicable exception to the “coming
and going” rule. It acknowledges that an
exception exists to the “coming and going” rule: “The rule excluding injuries
that occur off the employer’s premises, during travel between work and home,
does not apply if the journey is part of the service for which the worker is
employed or otherwise benefits the employer.”
Fortney v. Airtran Airways, Inc., 319 S.W.3d 325, 329 (Ky.
2010). This “service to the employer”
exception was explained by the Kentucky Supreme Court in Receveur
Construction, Co. v. Rogers, 958 S.W.2d 18, 20 (Ky. 1997).
In Receveur,
Rogers was fatally injured while driving a company vehicle. The evidence established the vehicle allowed
Rogers to go directly from his home to various job sites without having to
first report to the employer’s office.
Even though Rogers was killed while driving from a work site to his
home, the Supreme Court concluded the injury was nonetheless compensable
because the use of the company vehicle was of benefit primarily to the employer
because it allowed him to “better perform the requirements and completion of
his duties.” Id. at 21. In other words, Rogers was performing a
service to the employer at the time of his death by driving a company vehicle
to and from home.
Therefore, “transitory
activities of employees are covered if they are providing some service to the
employer.” Olsten-Kimberly Quality Care v. Parr, 965 S.W.2d 155, 157
(Ky. 1998). Here, the ALJ determined
Gordon had been furnished a tablet by her employer so that she could perform
work at home and while making calls to dealerships. When she reached her vehicle the first time,
she realized she had forgotten the tablet.
The ALJ concluded the act of retrieving the tablet and returning to her
vehicle was a benefit to her employer, and of no personal benefit.
First, we conclude the facts as found by the ALJ are supported by
substantial evidence. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.
App. 1984). Gordon and Reider testified
PFS provides tablets to its branch managers so they can conduct work while on
dealership visits and at home. This
testimony constitutes the requisite proof to support the ALJ’s finding Gordon’s
return trip to the office was of benefit to her employer, because the purpose
of the trip was to retrieve the tablet.
We also conclude the ALJ applied the correct law. Although he did not specifically cite any
case law discussing the “service to employer” exception, as PFS emphasizes, the
ALJ’s analysis is substantively complete.
After determining the “coming and going rule” did not apply, the ALJ properly
considered the correct question: whether Gordon was providing a service to the
employer by returning to the office building to retrieve the tablet.
We disagree with PFS’
contention that Gordon’s return trip was no different from generally coming and
going to the work premises. On the contrary,
Gordon had reached her vehicle when she remembered the forgotten tablet. In our view, she did not resume regular
“coming and going” until she had again returned to her vehicle to resume her
drive home. She was injured before she
again reached her vehicle.
This case is
distinguishable from Vaughan v. Jack Marshal Food, Claim No. 2015-89906
(WCB May 6, 2016), which PFS cites.
Vaughn maintained a home office and regularly travelled the region for
sales calls. He was injured when he
returned from a sales call and slipped on the icy sidewalk in front of his
house. The ALJ and this Board noted
there must be “a reasonable line of demarcation between the Plaintiff’s
work-related and non-work-related activities.”
PFS argues both Vaughn and Gordon were simply walking two and from the
operating premises. Again, we
disagree. Under the facts as found by
the ALJ, Gordon had veered from the usual process of “coming and going” to
return to her office. This brief
excursion was in service and of benefit to her employer.
Finally, it is
unnecessary to remand this claim for further findings of fact, as PFS
requests. Again, we acknowledge the ALJ
failed to specifically cite case law concerning the “service to employer”
exception to the “coming and going” rule.
However, the ALJ conducted the correct inquiry and entered findings of
fact supported by the evidence.
Moreover, the facts as found by the ALJ support the conclusion Gordon had
deviated from the normal process of coming and going to the work premises in
order to retrieve the tablet, a deviation which was of benefit to her employer Accordingly, the October 5, 2016 Opinion, Order and Award and the November 9, 2016 Order denying PFS’s petition
for reconsideration rendered by Hon. R. Roland Case, Administrative Law Judge,
are hereby AFFIRMED.
STIVERS, MEMBER, CONCURS.
ALVEY, CHAIRMAN,
DISSENTS AND FURNISHES A SEPARATE OPINION.
ALVEY,
Chairman. I respectfully dissent, and would vacate the ALJ’s decision and remand
for a determination of whether Gordon sustained a compensable work-related
injury. The ALJ did not perform an
appropriate analysis as to whether either the “traveling employee” exception,
or the “some benefit” exception, or both are applicable in accordance with the
cases cited in the majority opinion.
Professional Financial Services requested such analysis, which was
denied by the ALJ. The mere reliance upon
Phil Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S.W. 152 (Ky. App.
1918) in determining workers’ compensation coverage can extend to injuries
occurring outside the boundaries of the employer’s premises is insufficient, as
demonstrated by the analysis provided by the majority. Certainly, the ALJ is free to make any
determination, supported by the evidence, including a finding Gordon sustained
a compensable injury, so long as he performs an appropriate analysis. However, in this instance he did not do
so. Again, I would vacate and remand for
a complete analysis.
COUNSEL
FOR PETITIONER:
HON IAN M GODFREY
771 CORPORATE DR
SUITE 101
LEXINGTON, KY 40503
COUNSEL
FOR RESPONDENT:
HON PAULA RICHARDSON
PO BOX 1169
OWINGSVILLE, KY 40360
ADMINISTRATIVE
LAW JUDGE:
HON R ROLAND CASE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
