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.
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