PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-09-81735
The opinion of the court was delivered by: Vanmeter, Judge:
RENDERED: FEBRUARY 1, 2013; 10:00 A.M.
BEFORE: CAPERTON, LAMBERT, AND VANMETER, JUDGES.
JJ's Smoke Shop ("JJ's") petitions for review of the Workers' Compensation Board ("Board") opinion which affirmed an opinion of an Administrative Law Judge ("ALJ") awarding death benefits to Mary Jo Walker, adminstratrix of the Estate of Joshua Pendleton ("the Estate"), and to Priscilla Pendleton, the decedent's widow, and Jayden Pendleton, the decedent's daughter. For the following reasons, we affirm.
On July 22, 2009, shortly after 10 p.m., Joshua Pendleton was found murdered in the bathroom of JJ's, his place of employment. His shift had ended at 8:30 p.m. that night; at approximately 8:40 p.m. he locked the door to the store, set the security alarm, and voluntarily left the premises. Pendleton was later picked up at his house by Andrew and Samuel Marra under the pretext of going to purchase drugs. Andrew called Pendleton on the way to pick him up; Andrew told Pendleton that he had left his wallet in JJ's earlier that day.
Upon entering the Marras' car with JJ's store keys in hand, Pendleton was tasered with an electric stun gun and held hostage at knifepoint. The Marra brothers told him they were going to rob JJ's. Pendleton agreed to be compliant and begged them to return him home safely to his family after the robbery. Upon arriving at JJ's, Pendleton unlocked the store door, disabled the alarm, and entered the code to the safe. The Marra brothers proceeded to rob the store. During the robbery, Andrew Marra forced Pendleton into the store bathroom, where he stabbed him sixty-eight times. The Marra brothers then fled the scene.
Shortly after 10 p.m., the alarm company telephoned the owner of JJ's, John Blakeman, to alert him that the store alarm had been disabled. Blakeman then called a friend of his to go to the store with him to investigate. Upon realizing that the store had been robbed, the police were called, and Pendleton's body was found in the bathroom. The next day, the Marra brothers were taken into custody and later pled guilty to murdering Pendleton.
The Estate, Pendleton's widow and daughter filed a claim for death benefits alleging that Pendleton had been killed during the course and scope of his employment with JJ's. JJ's denied the claim on the basis that Pendleton's death was not work related. The matter came before the ALJ for adjudication.
The ALJ found that the Estate had provided prima facie evidence that Pendleton was murdered in the course and scope of his employment. Accordingly, the ALJ applied the presumption set forth in KRS*fn1 342.680, which provides:
In any claim for compensation, where the employee has been killed, or is physically or mentally unable to testify as confirmed by competent medical evidence and where there is unrebutted prima facie evidence that indicates that the injury was work related, it shall be presumed, in the absence of substantial evidence to the contrary, that the injury was work related[.] . . .
KRS 342.680 is read to create "a rebuttable presumption of causation in instances where a worker is incapable of explaining how a workplace injury occurred." AK Steel ...