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Trevino v. Transit Authority of River City

Supreme Court of Kentucky

March 14, 2019

DOUG TREVINO APPELLANT
v.
TRANSIT AUTHORITY OF RIVER CITY; HON. JEANIE OWEN MILLER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES

          CORRECTED: MARCH 14, 2019

          ON APPEAL FROM COURT OF APPEALS CASE NO. 2017-CA-000753-WC WORKERS' COMPENSATION BOARD NO. 13-WC-60923

          COUNSEL FOR APPELLANT: Phillipe W. Rich

          COUNSEL FOR APPELLEE, TRANSIT AUTHORITY OF RIVER CITY: Michelle Turner Derek Ryon Miles Turner Keal & Button PLLC

          COUNSEL FOR APPELLEE, JEANIE OWEN MILLER, ADMINISTRATIVE LAW JUDGE: Jeanie Owen Miller

          COUNSEL FOR APPELLEE, WORKERS' COMPENSATION BOARD: Dwight Taylor Lovan Executive Director - Department of Workers' Claims

          OPINION

          KELLER JUSTICE

         Douglas Wayne Trevino (Trevino) was injured while working as a bus driver for Transit Authority of River City (TARC) in Jefferson County, Kentucky. He initiated a claim for benefits pursuant to Kentucky Revised Statutes (KRS) Chapter 342, the Workers' Compensation chapter. After reviewing the relevant evidence, an Administrative Law Judge (ALJ) denied Trevino's claim. Trevino filed a motion for reconsideration, which was also denied. He appealed to the Workers' Compensation Board (Board), which unanimously affirmed the ALJ's determination. Trevino then appealed to the Court of Appeals, which unanimously affirmed the Board's decision. He now appeals to this Court.

         I. BACKGROUND

         While operating a TARC bus on November 9, 2013, Trevino was assaulted by a passenger resulting in injuries to his face, teeth, as well as causing post-traumatic stress disorder. Trevino filed his Form 101 on October 30, 2015. TARC responded by denying the claim pursuant to the special defense provided in KRS 342.610(3).[1] At the time Trevino's claim was filed and litigated, this provision stated:

[l]iability for compensation shall not apply where injury, occupational disease, or death to the employee was proximately caused primarily by voluntary intoxication as defined in KRS 501.010, or by his or her willful intention to injure or kill himself, herself, or another.

         TARC specifically argued that Trevino was the aggressor in the altercation and that he acted outside of the scope of his employment. TARC bases its position on the on-board bus surveillance video.[2] At the Benefits Review Conference (BRC), both parties stipulated the video's authenticity. After reviewing the video multiple times, as well as considering Trevino's live testimony, the ALJ denied Trevino benefits pursuant to KRS 342.610(3). The ALJ specifically determined the following:

I find the plaintiffs 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 violent response.

         During his live testimony, Trevino stated that the assailant was unruly from the moment he entered the bus. According to Trevino, the assailant was angry that Trevino "passed him up", presumably at an earlier stop. Trevino further testified that the assailant was cursing ...


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