FIRST CLASS SERVICES, INC. APPELLANT
GURAL W. HENSLEY; HONORABLE OTTO DANIEL WOLFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
PETITION FOR REVIEW OF A DECISION OF THE WORKERS'
COMPENSATION BOARD ACTION NO. 12-WC-60799
Christion Hutson Paducah, Kentucky BRIEF FOR APPELLANT
W. HENSLEY: Paul A. Brizendine Jeffersonville, Indiana BRIEF
BEFORE: DIXON, J. LAMBERT, AND STUMBO, JUDGES.
LAMBERT, J., JUDGE:
Class Services, Inc., has petitioned this Court for review of
the August 19, 2016, decision of the Workers'
Compensation Board (the Board) affirming in part, vacating in
part, and remanding the December 11, 2015, Administrative Law
Judge's (ALJ) Remand Opinion and Order and the February
16, 2016, Order on Petition for Reconsideration. In its
appeal, First Class Services contends that, as a matter of
law, injured employee Gural W. Hensley was not entitled to
the "service to the employer" and "traveling
employee" exceptions to the "going and coming"
rule. We disagree and affirm.
begin by repeating the statement of facts and procedural
history as set forth in the Board's opinion:
[Hensley] sustained multiple injuries in an MVA [motor
vehicle accident] on November 15, 2012, while employed by
First Class as an over-the-road truck driver. Hensley kept
his truck at home at all times except when he was driving, or
when he took it to the terminal at Lewisport, Kentucky, for
service. He called the dispatcher from his home to receive
assignments, and left on his route from his home. When his
route was finished, he returned home with the truck. He
generally hauled plastic from Frankfort, Kentucky, to Ada,
Oklahoma. Sometimes he brought a trailer home with him, and
sometimes he did not.
In discussing why he kept his truck at home, Hensley
explained his home is located near the interstate, and the
Lewisport facility was approximately one hour away and off of
his route. He stated keeping a truck at home provided a
benefit to First Class by reducing fuel cost, wear and tear
on the vehicle, and maintenance costs. This testimony was
corroborated by James Craig, Jeff Belcher, and Jackie Moon,
all employees of First Class.
The day before the MVA, Hensley became ill while returning to
Kentucky from a delivery in northern Illinois. He told Randy
Cutrell, Vice President of First Class, that he was not
feeling well. Hensley took his truck to Derby City Tank Wash
in Louisville, where he was to have the tank cleaned then
proceed to Frankfort to pick up a load. On the day of the
accident, it was determined Hensley should not complete his
dispatch and another driver was sent to the tank wash to pick
up Hensley's trailer to take it to Frankfort for a load
to finish the dispatch. Hensley was on his way home from the
tank wash in his truck without the trailer, when his truck
left the road and crashed into trees.
remand, the ALJ specifically determined Hensley kept his
truck at home, and commenced and concluded his routes from
home, which provided a benefit to the employer. The ALJ then
considered the traveling employee exception, and noted the
Board had rejected application of the personal comfort
exception. He stated:
The Board having said what it said, it would seem fruitless
to now determine [Hensley], at the time of his MVA, was not
on a distinct departure from his work route due to a personal
matter; consequently, it is determined [Hensley] does not
qualify for the "traveling employee" exception to
the "going and coming" rule.
Both parties filed petitions for reconsideration. First Class
argued Hensley was on a purely personal mission at the time
of the accident. Hensley argued he was a traveling employee
at the time of the accident, and that returning ...