RENDERED: MAY 26, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1392-WC
KEMI APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS' COMPENSATION BOARD
ACTION NOS. WC-20-01293, WC-20-01296, WC-20-01373,
AND WC-20-01449
LEWIS HICKS; SOUTHEASTERN LAND LLC;
HONORABLE THOMAS POLITES,
ADMINISTRATIVE LAW JUDGE; UNINSURED
EMPLOYERS’ FUND; AND WORKERS’
COMPENSATION BOARD APPELLEES
OPINION
REVERSING AND REMANDING
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BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.
KAREM, JUDGE: KEMI, Kentucky Employers’ Mutual Insurance, appeals the
decision of the Workers’ Compensation Board (the “Board”) affirming an
Administrative Law Judge’s (“ALJ”) Opinion and Order granting extraterritorial
jurisdiction to Lewis Hicks’ workers’ compensation claim. Because we believe the
ALJ and Board misconstrued Kentucky’s extraterritorial statute, we reverse the
Board’s decision and remand to the ALJ for findings consistent with such law and
this Opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Lewis Hicks (“Hicks”) began working for Southeastern Land, LLC
(“Southeastern”) in 1996. Southeastern owned several coal mines in Kentucky and
one mine – the “Alma” Mine – in Williamson, West Virginia. Additionally,
Southeastern’s headquarters were in Debord, Kentucky.
Hicks’ primary work location during his first 20 years of employment
with Southeastern was the “Eagle” Mine in Kentucky. However, in August 2017,
Southeastern’s management moved Hicks to the Alma Mine in West Virginia.
Hicks worked approximately sixty (60) hours a week at the Alma location as a
foreman overseeing a new type of mining process. While at the Alma Mine, Hicks
worked approximately six (6) days a week, sixty (60) hours per week. He
performed pre- and post-shift inspections as an underground foreman and prepared
paperwork for the West Virginia authorities. Additionally, Southeastern supplied
Hicks with his own office trailer at the Alma Mine.
While working at the Alma location, Hicks continued living in
Kentucky and drove daily to work in West Virginia. He testified that
Southeastern’s management told him the transfer was temporary and he would
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eventually be allowed to return to work in Kentucky. Additionally, Hicks
remained in contact with the supervisor of the Kentucky mines. Moreover, while
working in West Virginia, Hicks went to Southeastern’s Kentucky office in
Debord for insurance issues, to drop off and pick up equipment, and to meet with
the human resources supervisor and other people in Southeastern’s management.
He also stated he went to the mine supply store and safety office in Kentucky to
drop off or pick up items.
Hicks was also part of Southeastern’s mine rescue team, which he
trained for in Warfield, Kentucky. In addition, he visited each Southeastern mine
in Kentucky as part of his mine rescue training. Hicks also entered the mines in
Pike and Perry Counties on a “regular basis” for familiarization.
On January 10, 2019, while at the Alma Mine, Hicks noticed a miner
cable hung across the belt line and attempted to take it down. Unfortunately, a
splice in the conveyor belt caught his jacket and pulled him down the beltline,
causing injuries to his right arm and shoulder. Hicks did not work after his injury.
Hicks filed a workers’ compensation claim in Kentucky on September
23, 2020, alleging acute right shoulder and neck injuries occurring at work from
the January 10, 2019, accident. He also filed a hearing loss claim. He later filed
two additional claims, one alleging injuries to multiple body parts caused by
cumulative trauma and a coal workers’ pneumoconiosis (“CWP”) claim.
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The ALJ ultimately determined that, although Hicks had suffered the
injury in West Virginia, Kentucky had extraterritorial jurisdiction over Hicks’
claim under Kentucky Revised Statute (“KRS”) 342.670(1). Additionally, the ALJ
awarded Hicks temporary total disability benefits (“TTD”), permanent partial
disability (“PPD”) benefits, and medical benefits for the injuries to his back and
shoulders. Additionally, the ALJ dismissed Hicks’ CWP claim and awarded only
medical benefits for Hicks’ occupational hearing loss claim.
Southeastern filed a Petition for Reconsideration, arguing the ALJ
erred in concluding Hicks’ employment was “principally localized” in Kentucky at
the time of his injuries under KRS 342.670(1)(a). The ALJ overruled the Petition
for Reconsideration by Order on June 10, 2022. KEMI then filed an appeal of the
ALJ’s decision with the Board. The Board affirmed the ALJ, determining that the
evidence did “not compel a different result.” This appeal followed.
ANALYSIS
a. Standard of Review
Our Supreme Court has explained that the “standard of review in
workers’ compensation claims differs depending on whether we are reviewing
questions of law or questions of fact.” Miller v. Tema Isenmann, Inc., 542 S.W.3d
265, 270 (Ky. 2018). As to questions of fact, “the ALJ, not this Court and not the
Board, has sole discretion to determine the quality, character, and substance of the
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evidence.” Abbott Laboratories v. Smith, 205 S.W.3d 249, 253 (Ky. App. 2006)
(citations omitted). Indeed, “[w]here the ALJ has found in favor of the party, who
had the burden of proof, this Court must determine whether the ALJ’s findings
were supported by substantial evidence.” Id. (citation omitted). “Substantial
evidence” is “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) (citation omitted).
However, “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, our standard of review is de novo.” Bowerman v. Black Equipment Co., 297
S.W.3d 858, 866 (Ky. App. 2009) (citations omitted). Jurisdiction is a question of
law, and our review of the ALJ’s ruling as to jurisdiction is de novo. Appalachian
Regional Healthcare, Inc. v. Coleman, 239 S.W.3d 49, 53-54 (Ky. 2007) (citations
omitted) (“The question of jurisdiction is ordinarily one of law, meaning that the
standard of review to be applied is de novo.”).
b. Discussion
The sole question in this appeal is whether Kentucky’s jurisdiction
extended to Hicks’ workers’ compensation claims through the extraterritorial
jurisdiction statute. The applicable provisions of the statute – KRS 342.670(1) –
provide:
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(1) If an employee, while working outside the territorial
limits of this state, suffers an injury on account of which
the employee . . . would have been entitled to the
benefits provided by this chapter had that injury
occurred within this state, that employee . . . shall be
entitled to the benefits provided by this chapter, if at the
time of the injury:
(a) His or her employment is principally
localized in this state; or
(b) He or she is working under a contract of
hire made in this state in employment not
principally localized in any state[.]
(Emphasis added.)
Additionally, the definition of “principally localized” under KRS
342.670(5)(d) is as follows:
1. His or her employer has a place of business in this or
the other state and he or she regularly works at or
from that place of business, or
2. If subparagraph 1. foregoing is not applicable, he or
she is domiciled and spends a substantial part of his or
her working time in the service of his or her employer
in this or the other state[.]
(Emphasis added.) Thus, the dispute in this matter involves whether Hicks’
employment was “principally localized” in Kentucky or West Virginia.
Therefore, for Kentucky to be the “principal location” under the
statute, Southeastern must have a place of business in Kentucky, and Hicks must
regularly work at or from that place of business in Kentucky at the time of the
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injury. KRS 342.670(1) and KRS 342.670(5)(d)1. Alternatively, for West
Virginia to be the “principal location” under the statute, Southeastern must have a
place of business in West Virginia, and Hicks must regularly work at or from that
place of business in West Virginia at the time of the injury. Id.
After discussing KRS 342.670, the ALJ determined that KRS
342.670(1)(a) applied in this situation and that jurisdiction was appropriate under
Kentucky law. Specifically, the ALJ determined that Southeastern had a place of
business in Kentucky – its business headquarters in Debord – and that Hicks
“regularly works at or from that place of business, having done so for
approximately 20 of the last 23 years, until the temporary transfer or loan to West
Virginia.” Similarly, while noting that whether Hicks had worked in Kentucky in
the past was not dispositive, the Board again found compelling Hicks’ testimony
that his work in West Virginia was temporary in upholding the ALJ’s decision.
As an initial matter, under Kentucky law, whether employment is
“principally localized” in one jurisdiction or another depends on the employee’s
work status at the time of injury, not the location where the employee may have
worked at previous points in his or her career. Amax Coal Co. v. Smith, 748
S.W.2d 158, 160 (Ky. App. 1988). In Smith, Smith was a coal miner who filed a
workers’ compensation claim in Kentucky. Id. at 159. He had worked for ten
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years in Kentucky for Amax and the final four years of his career at Amax’s mine
in Indiana. Id. at 160.
The Court of Appeals began by noting that the Board’s decision “was
based on the fact that Smith spent a substantial part of his working history for his
employer in Kentucky. For this reason, it determined that his employment was
principally localized in Kentucky.” Id. However, the Court of Appeals disagreed
with the Board’s conclusion, stating that “the language of the statutes is expressed
in the present tense. KRS 342.670(1) refers to the nature and location and the
work ‘at the time of such injury.’” Id. As further discussed by the Court, “[w]e
are concerned with where he was at the time of the injury. His employment is
principally localized where he spends a substantial part of his working time in the
service of his employer in this state. The key word is ‘spends.’ It does not read
‘spent’ or ‘did spend.’” Id. Accordingly, the Court concluded Smith’s
employment was principally localized in Indiana under the statute. Id.
Thus, in this case, Hicks’ date of injury for both the traumatic and
cumulative trauma injuries was January 10, 2019. Further, no dispute exists that,
at that time, he was working at the Alma Mine in West Virginia.
The facts in Eck Miller Transportation Corporation v. Wagers, 833
S.W.2d 854 (Ky. App. 1992), are analogous to the facts presented in the record of
this case. In Wagers, a truck driver who happened to be a Kentucky resident
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worked for an employer doing business in both Kentucky and Tennessee. Id. at
855. The truck driver was responsible for “substantial” work-related tasks like
completing paperwork and vehicle maintenance at his home in Kentucky. Id.
However, his employer ultimately assigned him to the Chattanooga, Tennessee
terminal, where he worked for a year and a half and received most of his work
orders. Id. He subsequently sustained a work injury in Tennessee. Id. The Court,
with all concurring, reinstated the ALJ’s original Order that found that the truck
driver worked from Tennessee for the statutory purposes of determining the
jurisdiction of a workers’ compensation claim. Id. at 856.
As in Wagers, while Hicks’ employment for Southeastern required
him to complete some work-related tasks in Kentucky, these tasks were not more
“substantial” than the paperwork and vehicle maintenance the truck driver in
Wagers performed while at home in Kentucky. Furthermore, both Hicks and the
truck driver sustained injuries outside of Kentucky after working primarily in
another state for an extended period. The analogous set of facts presented by
Wagers and Hicks’ employment favors a finding of principally localized
employment in West Virginia.
Hicks also asserts that he spent a “substantial part” of his working
time in Kentucky while similarly being domiciled in Kentucky. However, this is
irrelevant. In this case, Hicks’ employment was principally localized either in
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Kentucky or West Virginia. If either state was the principal location, by its very
terms Section (d)(1) of the statute applies. Moreover, if Section (d)(l) is
applicable, then the condition precedent for Section (d)(2) cannot be met; thus,
Section (d)(2) cannot be utilized as an alternative means by which to establish
Kentucky jurisdiction.
Thus, the record shows that Southeastern Land owned or leased a
mine in West Virginia, and Hicks was regularly required to work at or from the
mine in West Virginia. Hicks worked at the Alma Mine in West Virginia at the
time of injury and last injurious exposure. Hicks worked in West Virginia for
seventeen (17) months, maintaining his own office space. Hicks would spend six
(6) days a week, sixty (60) hours a week, at the mine in West Virginia. While
Hicks may have made occasional trips to Southeastern’s headquarters or other
mines in Kentucky, Hicks spent nearly all his work time at the West Virginia
location at the time he sustained his injuries. Hicks’ belief as to whether his time
at the West Virginia mine was temporary or permanent has no bearing on where
his employment was “principally localized” under the statutory definition. See
KRS 342.670(5)(d)(1).
Therefore, Hicks’ employment was principally localized in West
Virginia, which is the appropriate jurisdiction to pursue his workers’ compensation
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remedies. Thus, we remand this claim to the ALJ for findings consistent with KRS
342.650(1) that Hicks’ employment was principally localized in West Virginia.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE LEWIS
HICKS:
Johanna F. Ellison
Lexington, Kentucky McKinnley Morgan
Gerald Vanover
London, Kentucky
BRIEF FOR APPELLEE
SOUTHEASTERN:
Brandon L. Rosen
R. Tyler Hurst
Huntington, West Virginia
BRIEF FOR APPELLEE
UNINSURED EMPLOYERS’ FUND:
James R. Carpenter
Assistant Attorney General
Frankfort, Kentucky
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