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NOT TO BE PUBLISHED OPINION
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RENDERED: AUGUST 20, 2015
NOT TO BE PUBLISHED
oSuprattr Court of rffi.
2015-SC-000026-WC
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MODERN PROPERTY MANAGEMENT APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2013-CA-001425-WC
WORKERS' COMPENSATION NO. 10-00459
ESTATE OF JEFFREY ALLEN WILBURN
(DECEASED); JULIE A. VAN HOOK,
ADMINISTRATRIX AND PARENT AND
GUARDIAN OF AMANDA WILBURN
AND MAXWELL WILBURN; HEIDI MARIE
CANTER, PARENT AND NATURAL
GUARDIAN OF ICY CANTER;
HONORABLE OTTO DANIEL WOLFF, IV,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Modern Property Management, ("Modern") appeals a Court of
Appeals decision which upheld an Administrative Law Judge's ("ALJ") finding
that Jeffrey Allen Wilburn was within the scope of his employment when he
was shot and killed. Modern argues on appeal that: 1) the finding Wilburn
returned to his work duties when he began to interact with his murderer,
Latarra Martin, is not supported by substantial evidence; and 2) it was an error
to award interest on the benefits per KRS 342.750(6). For the reasons set forth
below, we affirm the Court of Appeals.
Wilburn was employed as a maintenance manager for Modern. He leased
an apartment from Modern and paid a reduced rent because he was fixing it up
for future tenants. Tenants in the building would occasionally approach
Wilburn when repairs needed to be made although he was not assigned to work
at any specific building. Wilburn performed repairs all over Lexington on
behalf of Modern.
On March 11, 2009, Wilburn left work at another building and went to
his apartment to eat lunch with some friends, Harvey Wisman, Mary Ann
Sacco, and George "Cornbread" Corman. During lunch, there was a loud
knock on the door. Wilburn saw it was Martin and opened the door. Martin
was a tenant in Wilburn's building.
A few words were exchanged between Wilburn and Martin. Wilburn
purportedly entered Martin's apartment. None of Wilburn's guests heard the
subject of the conversation. However, Corman testified that he heard Wilburn
say something like "okay" or "I'll handle it." Shortly thereafter, Martin pulled
out a gun and shot Wilburn. Martin attempted to shoot Corman, but her gun
did not fire. Wilburn soon died from his injuries.
Lexington Police Detective John Scott Gibbons was the first officer to
arrive at the scene. He testified at Martin's criminal trial that when he arrived
she was sobbing saying "I want my money." Detective Gibbons asked Martin
what had happened, and she told him that she was tired of "them messing with
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her, that they were trying to make her think she was crazy, and that she could
hear them talking inside her apartment." Martin also stated she had "dirty
water" and that she believed Wilburn was her father and working for the police.
Sergeant Michael Sharpe also testified at Martin's trial. He verified that
Martin told Detective Gibbons that she had dirty water. Sergeant Sharpe said
he inferred that Martin "had some kind of plumbing issue with the apartment
people. And there was just nasty water, rusty water, running water, it was in
her apartment. It bugged her, and she'd had all she could take of it." Upon
checking the water in the apartment, Sergeant Sharpe did not observe any
problems.
Martin was evaluated by Dr. Greg Perri, PhD, for trial. He found that
Martin suffers from personality disorder, with schizoid and paranoid features.
Dr. Perri noted that Martin imagined she had dirty water at her apartment. Dr.
Perri determined that Martin believed the police were coming to have her
committed the day of the murder. Martin also believed that rapper "Lil' Wayne"
stole the lyrics to several songs she had written.
Following a jury trial, Martin was found guilty but mentally ill of murder.
Her conviction was affirmed by this Court on direct appeal. Martin v.
Commonwealth, 2010-SC-000830-MR (December 22, 2011). The Estate of
Jeffrey Allen Wilburn, Julie A. Van Hook, administratrix and parent and
guardian of Amanda Wilburn and Maxwell Wilburn, and Heidi Marie Canter,
parent and natural guardian of Icy Canter, filed for workers' compensation.
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They alleged that Wilburn was within the scope of his employment as a
maintenance manager when he began to speak with Martin.
In making his decision, the ALLI reviewed the transcripts of the witnesses
who testified in Martin's criminal trial. He made the following findings
regarding whether Wilburn was within the scope of his employment when
murdered:
On the morning of [Wilburn]'s death he was clearly an
employee of [Modern]. If [Wilburn] had stopped working to just eat
lunch, per [Corken v. Corken Steel Products, 385 S.W.2d 949 (Ky.
1965)], he would remain an employee during that time, but
according to Wisman's testimony, we know [Wilburn] took a break
from his work for personal reasons - to lunch with his out-of-town
guests, to visit with them and to take them to the airport. This
was a personal errand which caused him, at least temporarily, to
be removed from the employee/employer relationship.
This could be the end of the analysis, but there may have
been another change in his status when he interrupted his lunch
and was required to do business with Martin. If what transpired
with Martin was of a business nature, then [Wilburn] would have
ceased being on his own errand and would return to
employee/employer status. Consequently, the facts must be
examined in an effort to characterize [Wilburn]'s status when he
was dealing with Martin.
It is unclear exactly what transpired between [Wilburn] and
Martin, because [Wilburn] is dead and Martin, as determined by
the Fayette Circuit Court, is insane. The best available evidence to
make this determination comes from several of the witnesses.
Witness [Van Hook], [Wilburn]'s ex-wife answered, "Definitely no"
to the question of whether [Wilburn] would have had any other
type of relationship with Martin, other than that of a business
nature, and she knew [Wilburn] had been to Martin's apartment to
deal with a plumbing problem.
Witness Corman, who was closer to the action than anyone,
observed [Wilburn] leave his apartment and go a slight way into
Martin's apartment. When [Wilburn] came out of Martin's
apartment Corman thought he heard [Wilburn] say something like,
"okay, or I'll handle it."
Detective Gibbons, immediately following the shooting asked
Martin why she shot [Wilburn] and she stated, "She had dirty
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water." Subsequent investigations found [Martin] did not have
dirty water in her plumbing.
When asked about Martin's dirty water Sgt. Sharp stated,
"We were led to believe that she had some kind of plumbing issue
with the apartment. There was just nasty water, rusty water,
running water, it was in her apartment. It bugged her, and she did
all she could to take [sic] of it."
Forensic psychologist Gregory Perri testified, he spoke with
Martin approximately a month after the murder. This was also
after she had been given medication to bring in check, as best
could be done, her mental illness. When asked why she shot
[Wilburn], she listed several reasons, one of which was, her
answering "Yes" to the question, did she believe there was dirty
water coming out of her faucet. She asked him [Wilburn] to come
and observe the leak.
On the day of his death, there was no reason for [Wilburn] to
be involved with Martin, but for his being a maintenance man for
[Modern]. Martin engaged him to discuss preconceived dirty water
problem because he was [Modern]'s maintenance man. [Wilburn]
was placed in a place of danger due to his employment with
[Modern].
The evidence comes in the form of circumstantial evidence;
an employee is authorized to use circumstantial evidence to prove
the elements of his workers' compensation claim. Hunt's Adm'x v.
Fugue, 224 S.W.2d 917 (Ky. 1950). The circumstantial evidence
includes the fact [Wilburn] had previously been to [Martin]'s
apartment to work on a plumbing problem, Corman's testimony
[Wilburn] entered Martin's apartment and left saying something to
Martin like, "Okay, I'll handle it." The two police officers heard
[Martin] give an explanation that she shot [Wilburn] because she
believed she had dirty water, and Dr. Perri's report that Martin
believed she had dirty water and asked [Wilburn] to come into her
apartment to observe faucet leaks. In determining whether an
injury is work-related under workers' compensation law, no single
factor should be given conclusive weight instead the coverage
decision must be based upon the quantum of aggregate facts,
rather than the existence or nonexistence of any particular factor.
Based upon the above, this ALJ is persuaded [Wilburn], at
the time of his death, was in an employee/employer relationship
with [Modern].
Modern attempted to appeal to the Board. However, the Board dismissed
the appeal, finding that it was taken from an interlocutory order. On remand,
the ALJ readopted his finding that Wilburn was within the scope of his
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employment with Modern when he was murdered. The ALJ also awarded
Wilburn's estate death benefits pursuant to KRS 342.750. The ALJ further
determined that Wilburn's estate was entitled to interest on the death benefits
at the rate of 12% per KRS 342.750(6). Modern was ordered to pay income
benefits to each of Wilburn's dependents pursuant to KRS 342.750(1)(d).
On appeal, the Board affirmed the ALJ's opinion, order, and award.
The Court of Appeals also affirmed, and this appeal followed.
The function of the Court of Appeals is to "correct the Board only where
the Court perceives the Board has overlooked or misconstrued controlling
statutes or precedent, or committed an error in assessing the evidence so
flagrant as to cause gross injustice." W. Baptist Hosp. v. Kelly, 827 S.W.2d
685, 687-88 (Ky. 1992). The ALJ, as fact-finder, has sole authority to
determine the weight, credibility, and inferences to be drawn from the evidence.
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). The ALO
is given broad discretion to weigh the quality and substance of the evidence.
Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). Keeping these
principles in mind, we affirm the Court of Appeals.
I. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ'S FINDING THAT
WILBURN WAS MURDERED IN THE SCOPE OF HIS
EMPLOYMENT WITH MODERN
Modern's first argument is that the record does not support the ALJ's
conclusion that Wilburn was murdered while within the scope of his
employment. Modern makes several arguments to contend that the ALJ's
conclusion is contrary to the record. These arguments include that: 1) Corman
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testified that Wilburn said "ok" or "I'll handle it" after speaking with Martin
which prohibits a conclusion that they were discussing apartment
maintenance; 2) it is irrelevant that other tenants had previously approached
Wilburn about maintenance issues because there is no testimony regarding the
content of the conversation between Wilburn and Martin; 3) the fact Wilburn
previously visited Martin's apartment to perform maintenance is irrelevant in
determining the actual reason for the murder; and 4) Martin did not actually
say that she shot Wilburn because of dirty water in her apartment. Boiled
down, Modern argues that the ALJ's findings are based on circumstantial
evidence which could be interpreted to support its position that Wilburn was
not within the scope of his employment when he was murdered. Modern
specifically notes Martin's apparent belief that Wilburn was working for the
police and he was trying to get her committed as a motive for the murder.
Admittedly, the evidence Modern points to can support the contention
that Martin did not murder Wilburn because of an alleged maintenance issue
involving dirty water in her apartment. However, the fact that there is evidence
to support its position over the one the ALJ adopted is not grounds to reverse
his findings. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). There
is evidence to support the ALJ's finding that Wilburn was within the scope of
his employment when murdered, and thus we may not disturb it on appeal.
This evidence includes Martin's statement about dirty water, the fact that
residents would personally approach Wilburn for maintenance assistance, that
Wilburn did purportedly step into Martin's apartment, and Corman's testimony
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that Wilburn might have said "I'll handle it" after speaking with Martin. Thus,
we must reject Modern's argument.
Modern additionally argues that this situation is not analogous to
Corken, 385 S.W.2d 949, which was cited as support in the ALJ's opinion. In
Corken, a salesman employed by Corken Steel, was visiting customers in
Campbell County, Kentucky. He stopped for lunch at a restaurant in Newport.
As he was leaving the restaurant, Corken was shot and killed by a mentally
disturbed individual for no apparent reason. Our predecessor Court found that
Corken's employment was the reason for his presence at what turned out to be
a place of danger, since he would not have been killed but for his visiting
customers in that area. Thus, Corken's death arose out of his employment. Id.
at 950. Like Corken, Wilburn's employment with Modern placed him in the
position to have contact with Martin. Wilburn's agreement with Modern to
receive reduced rent for his apartment in exchange for renovating it made him
Martin's neighbor. As stated above, there was sufficient evidence to support
the ALJ's conclusion that Martin approached Wilburn to discuss a
maintenance issue.
II. THE ALJ DID NOT ERR BY AWARDING INTEREST ON THE
DEATH BENEFITS
Modern's other argument is that the ALJ erred by awarding interest on
the death benefits awarded in this matter. Modern contends that death
benefits which are awarded under KRS 342.750(6) are not income benefits
subject to interest, but are medical benefits. However, Realty Improvement Co.,
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Inc. v. Raley, 194 S.W.3d 818, 822 (Ky. 2006), states that for the purposes of
KRS 342.750(6), a deceased worker's estate is a person and that the lump-sum
benefit is a form of income benefit. Additionally, Bradley v. Commonwealth,
301 S.W.3d 27, 30 (Ky. 2009), held "that interest accrues on a lump-sum death
benefit under KRS 342.040(1) just as it does on other past-due income benefits
awarded under Chapter 342." Id. The AI,.J did not err by awarding interest on
the death benefits, and we must reject Modern's argument to the contrary.
Thus, for the above stated reasons, we affirm the decision of the Court of
Appeals.
All sitting. All concur.
COUNSEL FOR APPELLANT,
MODERN PROPERTY MANAGEMENT:
Ronald Jude Pohl
COUNSEL FOR APPELLEES,
ESTATE OF JEFFREY ALLEN WILBURN
(DECEASED); JULIE A. VAN HOOK,
ADMINISTRATRIX AND PARENT AND
GUARDIAN OF AMANDA WILBURN
AND MAXWELL WILBURN; HEIDI MARIE
CANTER, PARENT AND NATURAL GUARDIAN
OF ICY CANTER:
Laurie Goetz Kemp
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