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April 7, 2017 201360923

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  April 7, 2017

 

 

CLAIM NO. 201360923

 

 

DOUG TREVINO                                   PETITIONER

 

 

 

VS.        APPEAL FROM HON. JEANIE OWEN MILLER,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

TRANSIT AUTHORITY OF RIVER CITY

and HON. JEANIE OWEN MILLER,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

                       * * * * * *

 

 

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

 

STIVERS, Member. Doug Trevino (“Trevino”) appeals from the November 28, 2016, Opinion and Order and the January 3, 2017, Order denying his Petition for Reconsideration of Hon. Jeanie Owen Miller, Administrative Law Judge (“ALJ”). In the November 28, 2016, Opinion and Order, the ALJ dismissed Trevino’s claim for income and medical benefits against Transit Authority of River City (“TARC”). On appeal, Trevino asserts the ALJ erred in relying on KRS 342.610(3) in dismissing his claim. We affirm.

The Form 101 alleges on November 9, 2013, while in the employ of TARC, Trevino sustained work-related injuries to his face and teeth as well as a psychological injury in the following manner: “Plaintiff was driving a bus when he was assaulted by a passenger.”

In its “Notice of Claim Denial Or Acceptance And Special Answer,” TARC denied the claim for the following reasons:

Plaintiff was injured as a result of an altercation in which he was the aggressor, which was outside of his employment as a TARC bus driver.

 

Plaintiff’s injuries were caused primarily by his willful intention to injure another.

 

In its Special Answer, TARC asserted the following:

Defendant, TARC, for its Special Answer states that Plaintiff’s claim is barred (1) because his injury did not arise out of and in the course of his employment, and (2) because his injuries were caused primarily by his willful intention to injure another.

 

Trevino was deposed on February 15, 2016, and testified to the events of November 9, 2013:

A: Just came past – I was coming up on The Healing Place. I don’t remember real good, but seems like I stopped there and there was [sic] some people there and I picked up an old lady and some other people and there was a – some people talking here in the background. Well, just [sic] she got on the bus and then I took off.

 

Well, I got down to I think it was about Sixth Street and somebody said, Hey, somebody’s running after the bus. Well, it was this kid that had a bike that was – well, I won’t say kid. He was 19 or 20. He was running after the bus, so I stopped at – where was it, Seventh Street. Seventh Street is where I stopped.

 

Well, he got on there and he was cussing to blue blazes. He threw my – the bike rack down, slammed it down. He was getting on the bus and he said you – do you want me to use the words he said –

 

Q: Yes.

 

A: - or –

 

He said, You – you fucking honkie, son of a bitch. I’ll – I’ll beat your ass, I’ll kill you, I’ll beat the shit out of you. You passed me up. And I said, Sir, I didn’t pass you up. You weren’t at the stop like you’re supposed to be. Please sit down, sir, and I’ll take you to where you got [sic] to go. He just kept on and on and on.

 

So I got the bus up, went on down, got to about Sixth. Well, he was still cussing and hollering and yelling, and here I am trying to drive the bus, and I got people ringing the bell, I got to let them out, and I got people walking across the street. So I said, Sir, you’re going to have to be quiet or you’re going to have to get off the bus because I can’t leave you on here like that.

 

So I parked right between Fifth and Sixth right behind the Louisville Metro Police Station because I figured maybe that will calm him down because there’s all police cars there and it’s right behind where the cops are at. He didn’t calm down at all. He just kept on getting irate, hollering, yelling. So I hit – we have what they call a panic button. So I hit the panic button, but where it was a Saturday, there’s not as many people working, so it took a while for it to actually get registered. So I wasn’t getting no response there.

 

Well, this guy’s getting madder and madder and madder, so I called them even on the thing. I said, Hey, I need some help here. I got a guy that’s irate. I need you to help me out.

 

Q: And you just stopped at this point?

 

A: Yes. Lowered – lowered the bus, opened the doors so he could get out, front and back. He wouldn’t get out. He just wanted to scream and holler and yell. I said, Sir, you’re going to have to get out.

 

Well, then because I wouldn’t move the bus, he’s saying get this bus out of here, I’m late, I got to go to work.

 

Well, I saw him in the mirror. He started coming forward. So I get up out of my seat. I’m standing right there, like, right here, my hands are like this. The guy’s coming up there. And I can see he’s mad and he’s cussing, he’s yelling, he’s – you know, he’s – I don’t know what he’s going to do. So, you know, I try to get him as close to that door as I can. Then when I do, I try to take him out the door like that (indicating).

 

Q: Now, you’re pushing your hands up.

 

A: Yes.

 

Q: I assume you pushed him out the door or –

 

A: I tried to. That’s where that lower level – level of force comes in, not swing at him or punch him or kick him, but that’s the least amount of force I could do to get him out of here. If I can get him out, shut the door. I’ll be okay.

 

The guy was too – too young, too fast, too strong. Didn’t even budge him. And as soon as I did that, that’s when he started unloading. And, I mean, it was like eight or ten punches like (snaps fingers). All I seen [sic] was stars and flashes and…after he unloaded on me – which I never did – I was – I couldn’t defend myself, I didn’t swing back at him – he quit, and he said, Man, you’re bleeding all over the place. I done [sic] fucked you up, Dude. I said, That’s all right, don’t worry about it, so…there was a lady back in the back. She said I’ve got some napkins and tissues to – because I was bleeding everywhere at the time, out of my mouth, I had cuts over my eyes.

 

He went ahead then and he got off the bus, took his bike and (makes noise) took off. Everybody came forward and offered some help. I managed to call the dispatch, told them what happened, and then they had a supervisor that came out there eventually. And the EMS showed up and, you know, they were – they were really mad because they said, you know, you should have shot the guy. Because TARC actually has a policy where you can carry a gun on the bus if you want as a driver now, but I – I don’t – I’m not going to do that. And I told them, I said, No, I would never kill somebody over something like that, so…

 

And I’m getting a little emotional now, but that’s part of going through that situation, I get like that and…

 

Q: Let’s back up for just a second.

 

So when you said earlier that you pushed your hands toward him, and I think you said you didn’t budge him; is that right?

 

A: (Witness shakes head side to side). The dude was strong as a bull.

 

Q: Okay. So you were trying to just –

 

A: Take him out the door.

 

Q: Take him out the door.

 

A: Yeah, already kneeled, take him out the door, shut it everybody’s safe. I didn’t want to run off the bus because then he’s in control of the bus. You see, there’s one thing they tell we could do, too, is just run off the bus. Well, why do I want to leave a crazy on there with the bus running. Who know [sic] what he might do, you know. So to me my only option was to try to get him out the bus and shut the door.

Q: And – and you’re saying that when you pushed – when you pushed your hands out, that he just didn’t move at all; is that right?

 

A: (Shakes head side to side).

 

Q: And was that the only time that you touched him?

 

A: The only time.

 

Q: Do you know what his name was?

 

A: Don’t know his name, just know that he’s – he’d been apparently a frequent flyer for assaults and trouble like that. That’s it.

 

Q: So when you say he’s been a frequent flyer for assaults, what do you mean by that?

 

A: He’s been in jail before for assault.

 

Q: Had you ever seen him before?

 

A: Never. He was probably – if he was hanging out at The Healing Place, he probably didn’t have really a place to stay or anything like that. He was probably on drugs. He was probably on drugs that day.

 

Q: And why do you say that?

 

A: He was too hyped up. I mean, he was like – you know, he was – I mean, he was just – he was hyped up, so he was on something.

 

 

Q: And did you have any words with him where you raised your voice at all?

 

A: Just to try to get him quiet when he was – I mean, it was, Sir, you’re going to have to be quiet, you know, you’re going to have to – you know, tried to tell him that he was going to have to be quiet or I have to put him off the bus, but he wasn’t listening to none of that.

 

Q: Did you lose your temper with him?

 

A: I don’t [sic] say I would [sic] lose  my temper, just I was trying to keep him quiet because I knew if I got him too upset, I didn’t know if he had a gun or a knife or whatever, because they’ve already had people killed on TARC by guns and knives already, too, so I didn’t want to provoke that. That’s why I say I just tried to put him out the door the least way I could, you know. That’s what they taught us to do in prison too. And after I worked here at TARC, I took a part-time job at juvenile justice, took more aikido there and that’s the same way they teach you there, but those kids are – they’re crazy, so I didn’t stay there very long.

 

 

Q: How many times did this young man hit you?

 

A: I’m going to guess eight or ten at least.

 

Q: And when –

 

A: I mean, I thought – I was thinking when he was hitting me, I’m like, he’s got to be related to Muhammad Ali, because this guy is just too good. I mean, I’ve been in prison and seen them go toe to toe and this guy was – I mean, he was dead on with every shot he had. He wasn’t missing at all. So then I found out later on that maybe, you know, he had a little bit of boxing training, too, so he – he was a bad dude, let’s put it that way.

 

Q: So you say he hit you – hit you eight to ten times –

 

A: Yeah.

 

Q: - in the face?

 

A: Yeah.

         

Q: And where?

 

A: Face, mouth, side of the head. I had cuts over my eyes. I got some pictures here if you want to see what I looked like.

 

 

Q: So after he punched you, did this young man leave the bus?

 

A: He took off and went somewhere. Then he came back later on. He said – that’s where he was – I think he was drugged. He was, like, Well, I just came back to check up on things or something like that. That’s when the cops grabbed him. Because the lady said, Yeah, that’s the guy that hit – that assaulted this guy. So then they got him right there.

         

          TARC’s April 4, 2016, witness and exhibit list designates the following exhibit: “CD containing video of TARC bus on November 9, 2013 (provided to Plaintiff’s counsel March 7, 2016).”

The April 19, 2016, Benefit Review Conference (“BRC”) Order and Memorandum sets forth the following contested issues: “benefits per KRS 342.730, underpayment of TTD, work relatedness, willful intention to injure another per 610(3), course and scope.”[1]

At the September 28, 2016, hearing, counsel for TARC stated the parties stipulated at the BRC to the authenticity of the November 9, 2013, surveillance video.

In the hearing, Trevino testified concerning the events of November 9, 2013:

A: I was assaulted by a passenger that was unruly on the bus.

 

Q: Back up a little bit and take us from the point where you picked him up or first noticed him.

 

A: I first noticed him at The Healing Place. He was sitting there.

 

Q: And Judge Miller is from Owensboro, so just so we kind of know.

 

A: That’s like a rehab, halfway.

 

Q: It’s East Market Street. I think it’s at 8th or something, 8th or 9th. No, 10th Street maybe.

 

He wasn’t showing any interest in the bus, so I stopped and picked up a bunch of people, moved on. As I was going down the street about I’ll say around 7th Street somebody said, somebody is trying to catch the bus. This guy was running and carrying his bike at the same time, and I stopped to let this older lady off and held the bus while this dude, I guess my assaulter, he went up front and slammed the rack down on the bus and he was cussing the whole time. I had the door open. He’s like what – I don’t want to say what he was saying unless you want me to.

 

 

A: He was cussing and he put that bike on there and he slammed it down. When he came in the door he said, you blankity blank blank, you passed me up. I said, no sir. You weren’t at the stop. Well, he went straight on by and didn’t even try to pay for the fare, so I didn’t say anything, because we have a thing at TARC where if they don’t have bus fare, we let them ride anyway.

 

 

A: He went ahead and went to the back, continued the screaming and hollering. So I went up to I think it was about Fifth Street, right where the police station in the back is at. I said, okay, this guy is – the whole time we’re going through he said I’m going to kick your ass, you ain’t no good, whoop, whoop, whoop and all. No you don’t want to go there. I said, now, be quiet or I’m going to have to put you off the bus.

 

Well, when I got there and kneeled the bus down, I called and requested that someone come and take him off the bus. I set there for a while. This guy kept arguing and cussing [sic] me. Well, then I noticed in the mirror he started coming up the aisle. About two more stops up I picked people up that’s [sic] handicapped in wheelchairs. I knew if I didn’t get him somehow away from this crowd or whatever, off the bus, there was going to be a problem.

 

He was coming up here and he had his hands balled. Now, TARC policy is – this is their actual policy. I’m going to tell you what it is. You’re supposed to sit there like this and look straight ahead. Well, when I looked in the mirror and saw him coming, because I’m an ex-corrections officer, I know what the levels of force are and what can be used, what can’t be used. I got up out of my seat and just came like that to watch what he was doing. When he came up front we were like this close and he’s cussing. And, you know, just something on his face to – I’ve got to do something. So I tried to the – the bus was kneeled down, the door was open, I tried to get him out the door.

 

When I got him out the door, he came right back in, and as soon as he came in – I said he was at the Muhammad Ali Center. I ain’t [sic] kidding you. He started punching and all I seen [sic] was lightning bolts and everything else. I didn’t return any punches. After he hit me I don’t know, about six or eight times, he said, yeah, I made you bleed, didn’t I, you know, cussing. I said that’s all right. I said, I’ll be all right, I said, but the police are coming. You’re going to be picked up.

 

Well, then he went ahead and went off the bus and I was able to ask for EMS to some [sic] and give me some – because I was bleeding every way. I had some people come from the back and give me something. I was bleeding out of my mouth and my nose and everything. Finally EMS shows up and the police show up. There was some reason this guy comes back in and starts arguing with the police there. He told them, yeah, I beat that blankity blanks ass. Well, then the police picked him up right then and arrested him. He was charged for assault. He admitted assault. Then I was transported to I think it was Jewish, and they gave me some medical treatment and said, go see your doctor on Monday.

 

I had contusions and I had teeth that were lose [sic] and everything too, but they couldn’t take care of that so…I turned in a report at the TARC, they told me to fill a Workers’ Comp thing out of the packet and then after that I went and had the treatments made.

 

Trevino testified further:

Q: I know we heard you describe [sic] kind of incident that lead to your assault on the bus. Did you say anything threatening to that passenger up to the point of when he assaulted you?

 

A: I just told him he needed to calm down or he’d be put off the bus is what I told him.

 

Q: Did you threaten to drop him off at the police station?

 

A: That’s what I did, I dropped behind the police station. I said, hey, I’m stopping here. I wanted him to know that right there is the cop, so you go getting violent there [sic] going to probably get you. Do you know what I mean? But this guy didn’t care.

 

Q: At that point he told you he had a flat bicycle tire; is that right?

A: Uh-huh.

 

Q: And he told you he still had about five blocks to go and he just wanted to ride the bus?

 

A: Yes.

 

Q: And you told him you were [sic] ex-corrections officer; is that right?

 

A: That’s right.

 

Q: Why did you tell him you were an ex-corrections officer?

 

A: To let him know that I was at one time part of law enforcement. I know what’s right and what’s wrong. I let him know, you don’t need it [sic] get all violent and everything.

 

Q: When did you tell him that you were an ex-corrections officer?

 

A: Just before he came up front to come at me. Just before he came up there. I could see he was getting riled [sic] back there.

 

Q: So how could you tell he wanted to become violent?

 

A: When you’re in corrections, you learn body language. His body language was saying, I’m going to mess this guy up. He was balling up and threatening me. That’s cool, but once you get up out of your seat, you went beyond that.

 

Q: I’m sorry, I thought you observed him to be threatening when he was walking towards you.

 

A: Yeah, he was. He was threatening – if you’re sitting there, and he said, motherfucker I’m going to kick your fucking ass and you ain’t [sic] going to be able to do nothing. That’s threatening to begin with right there. Now, once he gets up out of there, he’s going to try to enforce that threat.

 

Q: Are you changing your testimony that you perceived him as a threat when he was still in the back of the bus?

 

A: He always was a threat. When he came on he was a threat. He just cussed me right to my face, wouldn’t pay the fare. He went right there behind me and started cussing me right then. He was a threat from the very get-go.

 

Q: Because earlier you said you perceived him as a threat when he was walking down the aisle towards you.

 

A: No, I said when he – he threw that thing down so hard, the bus shook. Now, he was already [sic] threatening motion in that gesture, because everybody on the bus like – they were looking all weird. He was already in a threatening motion already before that even happened. All I tried to do was defuse him when he came on the bus. I said, hey, you need to calm down. He wasn’t going to calm down.

 

Q: Do you think you’d defuse the situation by telling him you were an ex-corrections officer?

 

A: I hoped it might make him think a little bit.

 

Q: Did you intend to injure him when you threw him off the bus?

 

A: I used the least amount of force necessary, which was this?  [sic]

 

Q: You gently pushed him?

A: Enough to get him off the bus.

Q: So you would describe that as gently?

 

A: Yes, I would.

 

Q: Do you think the surveillance video from the bus would show something that might not be so gentle?

 

A: I think it would. It [sic] shoved him on his shoulder and pushed him out the bus. When he came up, he was right at me. The door was open there. That was [sic] intent to try to get him off the bus before he did something to me or somebody else.

 

Trevino testified he viewed the surveillance video of the events of November 9, 2013:

A: I’ve seen it.

 

Q: Is it substantially as you –

 

A: I think it’s right dead [sic] to what I’ve described. It don’t [sic] show me going up there and grabbing him like this and throwing him, no. It was on the shoulder like this, and out the door. I didn’t try to punch or anything, I seen the guy had his fists up, so I knew I had to do something. I’m not a dummy. I know that, the lower level force is try to get him off the bus, and that’s what I did, because I’ve got to think of the passengers’ safety too, not just mine. I had some old people on the bus. I didn’t want them getting hurt.

 

Q: You said you have seen the video?

 

A: Yes.

Q: Would that video show you saying anything that was perhaps less than polite to the passenger?

 

A: Just hollering at him saying, you know, you’ve got to be quiet and you’ve got to get off the bus.

 

Q: Would that video perhaps show that he was a little more calm and collected that [sic] you’re indicating here today?

 

A: I don’t think it will, no.

 

     In the November 28, 2016, Opinion and Order, the ALJ set forth the following “Summary of the Evidence”:

The defendant submitted the video of the entire incident from which this claim arises. The undersigned has reviewed the video numerous times. The threshold question, preserved by the defendant, is whether KRS 342.610(3) bars the plaintiff’s claim. For the following reasons, I find that the plaintiff’s intentional action, leading up to the assault which injured him, was the proximate cause of the assault. In other words, Mr. Tervino’s [sic] actions of standing up and shoving the assailant (backwards down the bus steps) as well as the verbal argument with the assailant were definitely the precipitating factors leading to the assailant’s violent response.

 

The plaintiff testified that he was only responding to the assailant’s threatening behavior. However, as I viewed the video and audio, several factors were not as Mr. Trevino had described in his Hearing testimony. First he testified that the assailant did not pay the bus fare. The assailant clearly offers his bus pass and Mr. Trevino waives it off. Mr. Trevino is heard arguing with the assailant. The assailant goes to a seat and is seen putting his bus pass in his pants pocket, while “jawing” with Mr. Trevino. Mr. Trevino testified that the assailant stood up and approached him in a threatening manner (with his fists balled up). The assailant appears to have his hands in his pockets as he rises from his seat to walk to the front of the bus. Mr. Trevino has stopped the bus and essentially tells the assailant that he is going to have “Metro” take him off the bus. The assailant is standing up front continuing to verbally argue with Mr. Trevino – but does not appear to be upset. Some of the passengers complain that they are going to be late. Indeed one passenger exits the bus in what appears to be frustration that the bus is not moving on. Mr. Trevino continues to tell the assailant he is going to have him taken off the bus. The assailant tells Mr. Trevino that he is going to wait to tell them how Mr. Trevino is not doing his job. Mr. Trevino tells the assailant that he cannot come on the bus cussing. They exchange “f---- you” with each other. The assailant tells Mr. Trevino that he has just 5 blocks to go and that he has a flat tire and cannot ride his bike as suggested by Mr. Trevino. Then the assailant turns and appears to start toward the door. He turns as Mr. Trevino says something else to him, and then the assailant basically tells Mr. Trevino to step outside the bus if he thinks he can “whip him”. Mr. Trevino rises from his seat and shoves the assailant backwards down the stairs. Clearly, Mr. Trevino was the physical aggressor. The assailant, pushes back up the stairs and punches Mr. Trevino three or four times with brutal force. A female passenger attempts to stop the attack by yelling at the assailant to “chill out”. The assailant then leaves the bus. Then Mr. Trevino says something about it being on the tape.

 

There is no doubt that Mr. Trevino received a beating that would leave him with significant injuries. However, the initial threshold question is whether Mr. Trevino’s injuries were proximately caused primarily by his willful intention to injure another. (KRS 342.610(3). In Advance Aluminum Co. v. Leslie, 869 S.W.2d 39, 40 (Ky. 1994), the Court explained that "KRS 342.610(3) encompasses situations including horseplay, intoxication, or other employee conduct shown to have been an intentional, deliberate action with a reckless disregard of the consequences either to himself or to another." I find that Mr. Trevino’s actions were indeed intentional and deliberate and were designed to inflict harm on this assailant. His ultimate goal may have been to get the assailant off the bus, but his attempt at framing this episode as essentially “self-defense” belies the obvious events leading up to his assault. It was the plaintiff’s actions that caused the escalation.

 

For those reasons, I find that Mr. Trevino’s claim for benefits per KRS 342. et. seq. are [sic] barred as a result of Mr. Trevino’s intentional, deliberate action with a reckless disregard of the consequences either to himself or to another.

 

Trevino filed a Petition for Reconsideration asserting the ALJ’s reliance upon KRS 342.610(3) is inappropriate.

In the ALJ’s January 3, 2017, Order denying Trevino’s Petition for Reconsideration, the ALJ stated as follows:

The plaintiff’s argument on Petition for Reconsideration is that Mr. Trevino’s ‘primary purpose was to protect the safety of the other passengers and remove a perceived threat from the bus.’ Additionally the plaintiff cites to a case wherein the plaintiff was allowed compensation even though the plaintiff was the aggressor. Hansen v. Frankfort Chair Co. 60 SW2d 349 (Ky. 1933)

 

The plaintiff’s argument must fail for two reasons. First, the undersigned found that Mr. Trevino’s actions were the proximate cause of the assault. In reviewing the entire video footage, it does not appear the passengers on the bus were threatened by the assailant’s behavior – at least until the assailant began his assault on Mr. Trevino. I find there is no error in the factual finding that Mr. Trevino’s actions were the proximate cause of the assault.

 

Secondly, the plaintiff cites a case that pre-dates the statutory defense that is the basis of the undersigned’s findings in this case. No doubt there are a [sic] numerous cases that would hold the plaintiff’s initial aggression would not bar his compensable benefits under the workers compensation act. See Hall vs Clark, 360 S.W.2d 140 (Ky. 1962). Indeed, the courts in the past have awarded benefits to the plaintiff when the plaintiff’s actions were, without a doubt, the proximate cause of the assault. The courts reasoned in the majority of those cases that the workers compensation system was a ‘no fault’ system and ‘but for’ the plaintiff being in the work situation and within the scope of his employment that led to the assault, he would not have been injured.

 

However, all of those causes pre-date the statutory defense outlined in the undersigned’s Opinion. Clearly, the legislative action specifically worded in KRS 342.6710(3)(as amended in 1972, 1996) must take precedence over the case law that reaches a different conclusion.

 

On appeal, Trevino asserts the ALJ erred in relying on KRS 342.610(3) in dismissing Trevino’s claim.

KRS 342.610(3) provides as follows:

Liability for compensation shall not apply where injury… to the employee was proximately caused primarily by voluntary intoxication as defined by KRS 501.010 or by his willful intention to injure or kill himself or another.

 

KRS 342.610(3) mandates there be a finding by the ALJ that the “willful intention to injure…another” be the "proximate cause" that “primarily” led to the accident. In other words, proof of a willful intention to injure another is insufficient. See Wilson v. Wizor, 544 S.W.2d 231 (Ky. 1976); Ford Motor Co. v. Smith, 143 S.W.2d 507 (Ky. 1940). KRS 342.610(3) is unambiguous on its face; therefore, statutory construction mandates following the provision’s plain meaning. See Layne v. Newberg, 841 S.W.2d 181 (Ky. 1992); See also Claude Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477 (Ky. App. 1983). As a reviewing body, we must give credence to the actual words used by the legislature and avoid offering alternative interpretations the reviewing body might believe to be a better result. See Kentucky Association of Chiropractors v. Jefferson City Medical Society, 549 S.W.2d 817 (Ky. 1977); See also Overnite Transportation Co. v. Gaddis, 793 S.W.2d 129 (Ky. App. 1990). 

The employer bears the burden of proof for any affirmative defense raised, including a defense under KRS 342.610(3). See Whittaker v. Hardin, 32 S.W.3d 497 (Ky. 2000). In order to sustain that burden, the employer must go forward with substantial evidence sufficient to convince a reasonable person. See Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). Since TARC was successful in meeting that burden, the question on appeal is whether there was substantial evidence of record to support the ALJ’s decision. See Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). Substantial evidence is defined as evidence of relevant consequence having the fitness to induce conviction in the minds of reasonable persons. See Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).    

          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. See 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. See Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). 

           TARC asserted an affirmative defense pursuant to KRS 342.610(3) in its Notice of Claim Denial and Special Answer by asserting, in part, that Trevino’s claim was barred “because his injuries were caused primarily by his willful intention to injure another.” The record further reveals a “willful intention to injure another per 610(3)” was preserved as a contested issue at the BRC. Significantly, at no point during the pendency of the litigation did Trevino specifically object to or address TARC’s assertion of an affirmative defense pursuant to KRS 342.610(3), including in his brief to the ALJ. In both the November 28, 2016, Opinion and Order and the January 3, 2017, Order denying Trevino’s Petition for Reconsideration, the ALJ determined TARC’s affirmative defense pursuant to KRS 342.610(3) was indeed applicable. The ALJ set forth the correct “threshold question” in the November 28, 2016, Opinion and Order – i.e. “whether Mr. Trevino’s injuries were proximately caused primarily by his willful intention to injure another” – and concluded Trevino’s actions on the bus on November 9, 2013, as captured by the surveillance video, satisfied this standard. See KRS 342.610(3); See also Advance Aluminum Co. v. Leslie, 869 S.W.2d 39 (Ky. 1994). The authenticity of this surveillance video was stipulated to by both parties at the BRC as represented by TARC at the hearing, without objection by counsel for Trevino. Additionally, Trevino testified at the hearing that he had viewed the surveillance video and felt “it’s right dead [sic] to what I’ve described.” In rendering a decision, KRS 342.285 grants an ALJ the sole discretion to determine the weight, credibility and substance of the evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ has the sole authority to judge all reasonable inferences to be drawn from the evidence, and the surveillance video of the events that took place on TARC’s bus on November 9, 2013, is certainly not an exception. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979). In the November 28, 2016, Opinion and Order, the ALJ set forth in detail what the surveillance video depicted, and this Board has neither the reason nor the authority to question the ALJ’s understanding of the video and the inferences drawn therefrom. As substantial evidence in the record supports the dismissal of Trevino’s claim pursuant to KRS 342.610(3), the dismissal will not be disturbed on appeal.

          Accordingly, the November 28, 2016, Opinion and Order and the January 3, 2017, Order denying Trevino’s Petition for Reconsideration are AFFIRMED.

          ALL CONCUR.

COUNSEL FOR PETITIONER:

HON PHILLIPE W RICH

1001 TREVILIAN WAY

LOUISVILLE KY 40213

COUNSEL FOR RESPONDENT:

HON MICHELLE TURNER

10624 MEETING ST STE 101

PROSPECT KY 40059

ADMINISTRATIVE LAW JUDGE:

HON JEANIE OWEN MILLER

657 CHAMBERLIN AVE

FRANKFORT KY 40601



[1] The year is not written on the BRC Order.