Released for Publication April 2, 2015.
ON APPEAL FROM COURT OF APPEALS. CASE NO. 2011-CA-002253-WC. WORKERS' COMPENSATION NO. 09-WC-10385.
FOR APPELLANT: James Gordon Fogle, Stephanie Dawn Ross, Fogle Keller Purdy, PLLC, Sherri Lynn Keller, Ferreri & Fogle, PLLC.
FOR APPELLEE: Thomas M. Rhoads, Rhoads & Rhoads, P.S.C.
OPINION OF THE COURT BY JUSTICE KELLER. All sitting. Minton, C.J., Abramson, Noble and Venters, JJ., concur. Scott, J., dissents by separate opinion in which Cunningham, J., joins.
The Administrative Law Judge (the ALJ) found that Andrea Schrecker's (Schrecker) injury is work-related and compensable. The Workers' Compensation Board (the Board) and the Court of Appeals affirmed. Having reviewed the
record and the arguments of the parties, we reverse.
Schrecker worked in the payment processing department at US Bank Home Mortgage (US Bank). The US Bank facility is located on Frederica Street in Owensboro, Kentucky. Frederica Street is a busy four-lane road with a traffic island dividing the northbound and southbound lanes. As a full-time US Bank employee, Schrecker was entitled to a one hour unpaid lunch-break and two fifteen-minute paid breaks per day. US Bank did not have an onsite cafeteria, but it did have a lunchroom and vending machine that were available for employees' use. During their breaks, employees were permitted to leave the premises, and they often did, going to fast food restaurants that are across Frederica Street from US Bank.
On December 31, 2007, one of Schrecker's co-employees was absent; therefore, Schrecker decided to work through her lunch-break. At approximately 1:30 p.m., Schrecker signed out for her paid afternoon break, with the intention of getting something to eat from the Taco Bell across Frederica Street from US Bank and returning to work. Based on Schrecker's testimony and the police report that was entered into evidence, Schrecker was crossing Frederica Street at a point between two intersections where there was no cross-walk. The driver in the outside northbound lane stopped and waved for Schrecker to cross. The driver in the inside northbound lane did not see Schrecker and, when she crossed into that lane, struck her. Schrecker was treated for her injuries at the scene and returned to work. She continued to work at US Bank until June 2008, when she was terminated.
The dissent emphasizes several times that Schrecker was under " employer-generated time pressure" because she had skipped her lunch break and had " to quickly grab food from a fast food restaurant across the street." While it is true that Schrecker did not take her lunch break when she usually did, there is nothing in the record indicating that she could not have taken her lunch break at 1:30 p.m. In fact, the evidence established that employees had no set lunch time and that a supervisor, Jennifer Roberts, had previously advised Schrecker that she was always entitled to a lunch break. Furthermore, Schrecker testified that three to five days a week she took the three minute trip across the street to get something to eat during her afternoon break. Therefore, the dissent's emphasis on an " employer-generated time pressure" is not supported by the record.
Following the injury, Schrecker complained of pain in her mid and low back, chest, right shoulder, left knee, and left calf. She also complained of headaches, depression, memory loss, difficulty concentrating, and sleep disturbance related to a traumatic brain injury suffered when her head struck the car's windshield. As a result of that injury, Schrecker has had difficulty working and functioning as she did in the past. The parties filed a significant amount of evidence regarding Schrecker's mental and physical conditions. We do not summarize that evidence because our holding only involves whether
Schrecker's injury occurred in the course and scope of her employment.
Based on the evidence and our Opinion in Meredith v. Jefferson County Property Valuation Administrator, 19 S.W.3d 106 (Ky. 2000), the ALJ concluded that Schrecker's injury occurred while she was within the course and scope of her employment. He then awarded Schrecker medical expense benefits and income benefits based on a fifteen percent impairment rating. US Bank filed a petition for reconsideration, which the ALJ summarily denied.
US Bank then appealed to the Board. The Board noted that the only issue before it was whether Schrecker's injury occurred within the course and scope of her employment. It then reviewed passages from Larson's Workers' Compensation' Law (2011), 9A Couch on Insurance 3d (2011), and 82 Am.Jur.2d Workers' Compensation regarding the " personal comfort doctrine." Based on its review, the Board concluded that the ALJ did not err in finding that Schrecker's injury occurred in the course and scope of her employment.
US Bank appealed to the Court of Appeals, which affirmed the Board. The Court of Appeals, also citing to Larson's and Couch, affirmed the Board, noting that Schrecker was injured while on a paid break seeking refreshment and that US Bank condoned employees crossing the street during such breaks. US Bank appealed from that opinion, again ...