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### ACTION.RENDERED: JUNE 14, 2018

NOT TO BE PUBLISHED 

# Supreme ©uurf of ^Reufurk^

2017-SC-000620-WC

FIRST CLASS SERVICES, INC. OATE ^/e^ 

### be

APPELLANT

ON APPEAL FROM COURT OF APPEALS

V. CASE NO. 2016-CA-001367

WORKERS ’ COMPENSATION BOARD NO. 12-WC-60799

GURAL W. HENSLEY; APPELLEES

HON. OTTO D. WOLFF, IV,

ADMINISTRATIVE LAW JUDGE; AND

WORKERS ’ COMPENSATION BOARD

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Factual and Procedural Background

Appellee, Gural Hensley, was an over-the-road truck driver employed by

Appellant, First Class Services, Inc., a trucking company whose employees

haul trailers of hazmat, dry bulk, and liquid tank loads interstate. To ensure

product quality, tank trailers hauled by First Class employees must be

thoroughly cleaned after each delivery prior to the next product being loaded.

After a delivery, Hensley routinely brought his truck with the dirty trailer tank

to Derby City Tank Wash in Louisville, where he left the tank to be cleaned

before returning to Frankfort for another load.Because Hensley lived 30 to 40 miles away from the First Class terminal

in Lewisport, Kentucky, he was permitted to keep his truck and trailer at his

residence in English, Indiana. Hensley began and ended his routes from home.

On November 14, 2012, Hensley informed James Craig, his dispatcher,

and Randy Cutrell, Vice-President of First Class, that he was feeling ill during a

delivery route. On November 15, Hensley brought his dirty trailer tank to

Derby City Tank Wash after his delivery. He was scheduled to take the clean

tank back to Frankfort for a new load, then on to Oklahoma.

However, due to his illness, First Class determined that Hensley should

not finish his dispatch. Instead, another driver was sent with a different truck

to pick up the clean tank and take it to Frankfort for the new load. Hensley

was sent home in his truck with no trailer attached, which is known in the

industry as “ bob-tailing. ”

While “ bob-tailing

” home, Hensley ’ s truck went off the road in Crawford

County, Indiana and struck a tree. Hensley sustained multiple injuries and

filed a workers ’ compensation claim on February 8, 2013.

Initially, the ALJ found in Hensley ’ s favor, finding, inter alia, that

Hensley

’ s travel to store his truck at home qualified for the “ service or benefit

to the employer ” exception. Hensley put less mileage on the truck and was

able to leave for dispatches earlier without driving the extra 30 to 40 miles toand-from the terminal in Lewisport. Because keeping the truck at his

residence was of “ some benefit ” to First Class, Hensley ’ s travel to and from

home with his truck was within the scope of his employment. However, the

2ALJ did not find that Hensley qualified for the “ traveling employee ” exception.

Both parties appealed the ALJ ’ s decision.

On appeal, the Board affirmed the ALJ in part and reversed in part. The

Board found that, in addition to qualifying for the “ service or benefit to

employer ” exception, Hensley ’ s accident and consequential injuries were workrelated under the “ traveling employee ” exception. The Board stated that, as in

Gains Gentry Thoroughbreds/Fayette Farms v. Mandujano, 366 S.W.3d 456,

462-63 (Ky. 2012), Hensley ’ s injuries occurred during the “ necessary and

inevitable ” act of returning from the journey he undertook on behalf of his

employer. First Class appealed to the Kentucky Court of Appeals pursuant to

Section 111 of the Kentucky Constitution and KRS 342.290, which affirmed

the Board ’ s decision.

Analysis

Appellate review of Board rulings strictly concerns whether the Board ’ s

Final Order was: (1) based on a correct interpretation of the law, and (2)

reasonable under the evidence. Fortney v. Airtran Airways, Inc., 319 S.W.3d

325, 328 (Ky. 2010). Appellate courts will only disturb a Board decision that is

reasonable under the evidence “ to address new or novel questions of statutory

construction, or to reconsider precedent when such appears necessary, or to

review a question of constitutional magnitude. ” W. Baptist Hosp. v. Kelly, 827

S.W.2d 685, 688 (Ky. 1992).

“ When the decision of the fact-finder favors the person with the burden

of proof, his only burden on appeal is to show that there was some evidence of

3substance to support the finding, meaning evidence which would permit a fact

finder to reasonably find as it did. ” Special Fund v. Francis, 708 S.W.2d 641,

643 (Ky. 1986) (emphasis added). “ In order to reverse the finding of the Board,

the claimant, who has the burden of proof, must present evidence that is so

overwhelming as to compel a finding in his favor. ” Howard D. Sturgill & Sons v.

Fairchild, 647 S.W.2d 796, 798 (Ky. 1983) (citing Old Republic Ins. Co. v.

McCarty, 599 S.W.2d 163 (Ky. 1980)).

A compensable “ injury ” under the Workers ’ Compensation Act must have

resulted from a work-related occurrence “ arising out of and in the course of

employment

. . . . ” KRS 342.0011(2). The going and coming rule states that,

“ [w]here an employee is traveling between his home and the place of

employment and is not performing some special service or benefit for his

employer, his injuries are not sustained in the course of his employment. ”

Fairchild, 647 S.W.2d at 797 (citing Brown v. Owsley, 564 S.W.2d 843 (Ky.

1978)). “ The rationale supporting the rule is that perils encountered during

travel to and from work are no different from those encountered by the general

public and, thus, are neither occupational nor industrial hazards for which the

employer is liable. ” Fortney, 319 S.W.3d at 328 (internal citations omitted).

However, this Court has addressed several exceptions to the going and

coming rule, including the “ service or benefit to the employer ” exception, see id.

at 329-30, and the “ traveling employee ” doctrine. See Mandujano, 366 S.W.3d

at 462. Although only one exception to the going and coming rule is needed,

the following analysis demonstrates that both are satisfied in the case at bar.

4A. Traveling Employee Exception

“ [T]he traveling employee doctrine considers an injury that occurs while

the employee is in travel status to be work-related unless the worker was

engaged in a significant departure from the purpose of the trip. ” Id. Travel

status applies to “ [ejmployees whose work entails travel away from the

employer ’ s premises. ” Black v. Tichenor, 396 S.W.2d 794, 797 (Ky. 1965).

Accordingly, traveling employees perform within the scope of their employment

“ continuously during the trip, except when a distinct departure on a personal

errand is shown. ” Id.

Here, the Board held that Hensley ’ s return trip to his residence was a

“ necessary and inevitable ” act of completing his travel, undertaken as a First

Class employee. The Board found that “ [s]ometimes [Hensley] brought a trailer

home with him, and sometimes he did not. ” Further, the Board stated that “ a

mere deviation from his usual employment due to an illness [does] not negate

the fact Hensley was still working until he returned home. ” So, it was not a

distinct departure from his duties to be driving the truck home without a

trailer. Thus, the Board concluded that Hensley ’ s accident fell within the

traveling employee exception.

B. Some Service or Benefit to the Employer Exception

“ 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, 319 S.W.3d at 329. Hence, driving and other forms of

5movement required to complete an employee ’ s duties are covered if they

provide some benefit or service to the employer.

Here, the ALJ ’ s recommendation and the Board ’ s final order both

described Hensley

’ s storage of his truck and trailer at his residence as being of

“ some benefit ” to First Class. Among the benefits listed were that less mileage

was put on the truck and it allowed Hensley to spend more time on the road.

C. Applying the Exceptions

Substantial evidence supports the Board ’ s findings that Hensley ’ s

storage of the company truck at his home was of benefit to First Class, and

that Hensley was a traveling employee. Therefore, the reviewing court was

bound by the record. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418,

419 (Ky. 1985). Accordingly, the Court of Appeals properly deferred to the

Board ’ s findings, which were based upon evidence of substance, as to the

applicability of those two exceptions. Finding no legal error, the Court of

Appeals appropriately affirmed the Board ’ s Final Order.

Conclusion

For the reasons stated herein, we hereby affirm the decision of the Court

of Appeals.

All sitting. All concur.

6COUNSEL FOR APPELLANT:

Richard Christion Hutson

WHITLOW, ROBERTS, HOUSTON 85 STRAUB, PLLC

COUNSEL FOR APPELLEE:

Paul Allen Brizendine

BRIZENDINE LAW OFFICE, LLC

7