RENDERED: DECEMBER 3, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0684-WC
PILGRIM’S PRIDE CORPORATION APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NOS. WC-2019-01490 AND WC-2019-53330
PATSY HERNDON; HONORABLE
TONYA CLEMMONS,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION
BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.
CETRULO, JUDGE: Pilgrim’s Pride (“Employer”) appeals an opinion of the
Workers’ Compensation Board (“the Board”) which reversed and remanded the
opinion and order of the Administrative Law Judge (“the ALJ”) dismissing Patsy
Herndon’s workers’ compensation claims for injuries sustained on November 11,
2019, and November 13, 2019.1 We affirm the Board.
Herndon worked for Employer, a poultry processing facility, as a
main inspector helper for approximately twenty-five years. She worked the night
shift and was not permitted to clock in until 9:07 p.m. However, for approximately
five years up to and including 2019, Herndon arrived for work any time from 7:00-
7:30 p.m. She was never instructed by a supervisor not to arrive in this timeframe,
and most workers arrived thirty minutes prior to the start of the night shift.
Herndon arrived early to eat supper with a fellow employee who worked an earlier
shift.
Upon arrival to work, Herndon was required to pass through a secured
entrance into Employer’s parking lot. After exiting her vehicle, Herndon walked
across the parking lot, then swiped her employee badge at a set of turnstiles to
enter the building. Herndon testified that she would then put on her work clothes
and gear prior to eating her meal. On the evening of November 11, 2019, Herndon
arrived for her shift at approximately 7:10 p.m. The parking lot was covered by ice
and snow. She parked her vehicle, exited, and walked around to the passenger’s
side to retrieve a bag containing her work gear when she fell. Herndon got up,
1
Herndon had two separate claims based on the date of each incident. The claims were
consolidated by the ALJ.
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opened the vehicle’s door, and fell again on a piece of waxed cardboard that was
covered by the snow and ice. Upon falling the second time, she landed on her left
foot and heard a pop in her left knee. Herndon managed to walk into the facility
and notified a supervisor of the falls. She was seen by Employer’s medical staff
and placed on light duty in the supply room for the duration of her shift. Herndon
testified in her deposition that she experienced pain and difficulty walking after the
falls and for the remainder of her shift.
The next day, Herndon arrived early for the night shift and worked in
the supply room on light duty. On November 13, 2019, she arrived at her usual
early time. Herndon testified in her deposition that as she was walking across the
parking lot, approaching the turnstiles just outside of the facility, her legs went
numb and she fell. Two employees, who did not see her fall, but heard her asking
for help, assisted her to a nearby bench and retrieved a supervisor. Herndon
requested an ambulance and was transported to the hospital where X-rays were
performed. She was ultimately diagnosed with a left leg fracture and underwent
surgery. After surgery, she was admitted to a skilled nursing and rehabilitation
facility for assistance and therapy. She was discharged from the facility on March
1, 2020.
Herndon sought workers’ compensation in the form of total temporary
disability, medical, and credit for short-term disability benefits. Her claim was
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denied by the ALJ. On appeal, the Board reversed and remanded the ALJ’s
decision. Employer appealed. Further facts will be developed as necessary.
Generally, the ALJ is the sole fact-finder in all workers’ compensation
claims. “KRS[2] 342.285 designates the ALJ as finder of fact, and has been
construed to mean that the fact-finder has the sole discretion to determine the
quality, character, weight, credibility, and substance of the evidence, and to draw
reasonable inferences from the evidence.” Bowerman v. Black Equipment Co., 297
S.W.3d 858, 866 (Ky. App. 2009). As the claimant, Herndon had the burden of
proving every element of her claim. Wetherby v. Amazon.com, 580 S.W.3d 521,
526 (Ky. 2019) (citation omitted). When a claim is denied by the ALJ, on appeal
to the Board, the issue is whether substantial evidence supported the ALJ’s
findings. Id. “Substantial evidence means evidence of substance and relevant
consequence having the fitness to induce conviction in the minds of reasonable
men.” Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971).
However, the facts as stated herein are largely uncontested. Rather,
we must review whether the ALJ correctly applied the law to the facts. “As a
reviewing court, we are bound neither by an ALJ’s decisions on questions of law
or an ALJ’s interpretation and application of the law to the facts. In either case,
2
Kentucky Revised Statutes.
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our standard of review is de novo.” Ford Motor Co. v. Jobe, 544 S.W.3d 628, 631
(Ky. 2018) (citing Bowerman, 297 S.W.3d at 866).
We are unpersuaded by Employer’s argument that the Board
substituted its own findings for that of the ALJ. The narrow issue, as framed by
the ALJ and the Board, is whether Herndon’s injuries on November 11 and 13,
2019, arose out of and in the course of her employment. This is a question of law
and, accordingly, our review is de novo. We agree with the Board that Herndon’s
injuries did arise out of and in the course of her employment.
The coming and going rule is applicable in the instant action. The
ALJ noted the rule in workers’ compensation cases states
[t]he general rule is that injuries[3] sustained by workers
when they are going to or returning from the place where
they regularly perform the duties connected with their
employment are not deemed to arise out of and in the
course of the employment as the hazards ordinarily
encountered in such journeys are not incident to the
3
KRS 342.0011(1) defines “injury” in workers’ compensation claims as
any work-related traumatic event or series of traumatic events,
including cumulative trauma, arising out of and in the course of
employment which is the proximate cause producing a harmful
change in the human organism evidenced by objective medical
findings. “Injury” does not include the effects of the natural aging
process, and does not include any communicable disease unless the
risk of contracting the disease is increased by the nature of the
employment. “Injury” when used generally, unless the context
indicates otherwise, shall include an occupational disease and
damage to a prosthetic appliance, but shall not include a
psychological, psychiatric, or stress-related change in the human
organism, unless it is a direct result of a physical injury[.]
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employer’s business.
Receveur Const. Co./Realm, Inc. v. Rogers, 958 S.W.2d 18, 20 (Ky. 1997) (citation
omitted).
The ALJ also noted the exception to the coming and going rule, which
is that injuries are compensable if they occur on the employer’s operating
premises. Ratliff v. Epling, 401 S.W.2d 43 (Ky. 1966). Briefly, in Ratliff, a coal
mine employee (Employee) asked a fellow worker for a ride home when their shift
ended. However, the vehicle would not start, so the fellow worker left to find
assistance. While he was gone, Employee decided to exit the vehicle and collect
coal for his own personal use. While doing so, an embankment caved in and
crushed Employee, resulting in his death. This happened approximately one half
hour after Employee’s shift had ended. Kentucky’s then-highest Court, in adopting
the operating premises rule, also found that Ratliff was not entitled to
compensation in the form of death benefits because, even though the accident
occurred on employer’s operating premises, Employee was on a “personal
mission” when he decided to exit the vehicle and collect coal for his personal use.
The Court also instructed that time was a factor to consider and that an employee
remains in the course of his employment only for a
reasonable time necessary to accomplish the ‘going’ or
‘coming’ process. Delay in departure itself increases the
hazard. It may be said that the longer the delay, the
lesser the deviation which will take the employee out of
the course of his employment. Here the delay in
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departure plus the nature of the deviation unreasonably
compounded the risks to which the employer should be
subjected.
Id. at 46.
Looking to Ratliff, the ALJ relied on the fact that Herndon reported to
work two hours before she was able to start her shift and made a conclusion of law
that such an early arrival was unreasonable. Thus, the ALJ concluded the incidents
on November 11 and 13, 2019, did not constitute an injury as defined in KRS
342.0011 because they were not in the course of Herndon’s employment, stating
[t]he ALJ is not convinced that an unpaid, pre-shift meal
approximately two hours prior to the beginning of a work
shift is work-related or incidental to [Herndon’s] work.
The evidence does not establish that [Herndon] was
serving [Employer’s] interests or an employer
requirement that arriving early to have a pre-shift meal
was an activity that was in the course of her employment.
On appeal, the Board narrowly focused on the precise time and nature
of Herndon’s accidents and concluded that she was engaged in the normal activity
of going to work and was in the course and scope of her employment at the time of
both falls, despite the fact she arrived approximately two hours early for her shift.
The Board concluded the ALJ misapplied the law to the facts, not that the ALJ’s
findings were not supported by evidence. We agree.
The Kentucky Supreme Court, in offering further clarification of
Ratliff, has instructed
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[a]s a general rule, once the employee of a contractor,
whether independent or subcontractor, has crossed the
threshold onto the private property upon which the job
site is located where his employer is providing services,
he should be considered exposed to the risks because of
his employment and entitled to coverage under the “on
premises” modification of the “going and coming” rule.
However, we recognize that the location or position
where the accident occurs is just one factor to be
considered in deciding whether a person who has not yet
reported to work should be covered by the workers’
compensation law. While the employee is still in a
“going and coming” status the Ratliff case requires the
cause of the injury to also be considered, and this may
outweigh the importance of the place of the injury if the
cause of the injury represents a significant deviation from
normal activity involved in going and coming.
Hayes v. Gibson Hart Co., 789 S.W.2d 775, 779 (Ky. 1990). In sum, when
considering the coming and going rule, “the coverage decision must be based upon
the quantum of aggregate facts rather than the existence or nonexistence of any
particular factor.” Id. at 777 (internal quotation marks and citations omitted).
It is undisputed that the parking lot where the incidents occurred
constitutes Employer’s operating premises.4 It is also undisputed that Herndon
4
In clarifying the operating premises rule in relation to employer-controlled parking lots, the
Kentucky Supreme Court has held
if an employer provides or maintains a parking lot or other
premises for the convenience of its employees, and an employee,
while on said premises, sustains a work-connected injury, then the
employer is responsible to the employee for workers’
compensation benefits. Two factors must be present to fix liability
on the employer. First of all, the employer must control the area,
and second, a work-related injury must have been sustained on the
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suffered three falls on Employer’s operating premises. She was at her vehicle
gathering her work gear when she suffered two falls on November 11, 2019, and
was walking across the parking lot to the facility when she fell on November 13,
2019. She was scheduled to work her regular night shift on both occasions and we
agree with the Board that she was engaged in normal employment activity when
the falls occurred.
Employer attempts to persuade this Court to engage in speculative
“what-if” scenarios, arguing that, had Herndon arrived two hours later on
November 11, 2019, perhaps the parking space she had chosen would have been
occupied, the cardboard box removed, or there would have been a change in the
snow and ice levels in the parking lot.5 We do acknowledge that our analysis
would likely be different if Herndon was injured while eating her early supper in
the facility, or if she had shown up on an evening when she was not scheduled to
work simply to dine with her friend. However, neither of those scenarios, nor
those presented by Employer, are applicable to the facts of November 11 and 13,
2019. Herndon was on Employer’s operating premises and engaged in normal
area. What we are saying is that “operating premises” constitute a
part of the work area, and an employee, under those conditions,
receiving a work-related injury is in a “work connected activity.”
K-Mart Discount Stores v. Schroeder, 623 S.W.2d 900, 902 (Ky. 1981).
5
See p. 18 of Employer’s petition for review.
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coming and going activity when she fell on both dates. She was not engaged in a
“personal mission” at the times the falls occurred. The Board did not err in
considering the quantum of aggregate facts rather than relying upon the sole factor
of time.
For the reasons stated herein, the decision of the Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
James G. Fogle David Troutman
Louisville, Kentucky Mark Edwards
Paducah, Kentucky
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