RENDERED: MARCH 14, 2024
TO BE PUBLISHED
Supreme Court of Kentucky
2023-SC-0284-WC
LEWIS HICKS APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. NO. 2022-CA-1392
WORKERS’ COMPENSATION BOARD NOS. WC-20-01293,
WC-20-01296, WC-20-01373, & WC-20-01449
KENTUCKY EMPLOYERS’ MUTUAL APPELLEES
INSURANCE COMPANY;
SOUTHEASTERN LAND LLC; THOMAS
POLITES, ADMINISTRATIVE LAW
JUDGE; UNINSURED EMPLOYERS’
FUND; AND WORKERS’
COMPENSATION BOARD
OPINION OF THE COURT BY JUSTICE NICKELL
AFFIRMING
Lewis Hicks has appealed from the decision of the Court of Appeals
which reversed a decision of the Workers’ Compensation Board (“Board”)
affirming an Administrative Law Judge’s (“ALJ”) Opinion and Order which
awarded KRS Chapter 342 medical and disability benefits after determining
Kentucky had extraterritorial jurisdiction over Hicks’ workers’ compensation
claim. Hicks argues the ALJ and Board correctly determined Kentucky has
extraterritorial jurisdiction over this workers’ compensation claim under KRS 1
1 Kentucky Revised Statutes.
342.670 and the Court of Appeals erred in concluding to the contrary. After a
careful review, we disagree, and affirm the Court of Appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
Hicks worked in Kentucky as a foreman for Eagle Coal, a subsidiary of
Booth Energy, from 1996 until 2017, a period of about twenty-one years. In
August 2017, Booth Energy’s HR director, CEO, and one of its owners, asked
Hicks to transfer his employment to another of Booth Energy’s subsidiaries,
Southeastern Land, LLC, to work as a section foreman at that company’s
“Alma” Mine location in Williamson, West Virginia. Southeastern Land was
headquartered in Debord, Kentucky, approximately a 45-minute drive from the
Alma Mine. Hicks agreed, transferred his employment from Eagle Coal to
Southeastern Land, and began working as an onsite foreman at the Alma Mine
where he remained until January 10, 2019—the date of his work-related
injury.
During that seventeen-month period, Hicks worked six days and sixty
hours per week in West Virginia, although he remained a resident of Kentucky.
He obtained a valid West Virginia mine certification card, performed pre- and
post-shift inspections as an underground foreman, and escorted and interacted
with federal and West Virginia mine inspectors. In addition, he prepared
paperwork from an office in a converted double-wide trailer on the mine
premises provided by Southeastern Land for that purpose.
While working as a full-time foreman at the Alma Mine, Hicks would
occasionally travel to Southeastern Land’s headquarters in Kentucky to drop
2
off and pick up equipment, meet with the human resources supervisor and
other members of management, and visit the mine supply store and safety
office to return or obtain items for use at the Alma Mine. As a member of
Southeastern Land’s mine rescue team, he would also attend quarterly training
sessions in Kentucky and visit the company’s other mining facilities for
training and “familiarization” with the mines. Although he believed his tenure
in West Virginia was to be temporary, he was never offered reemployment in
Kentucky.
On the date of his injury, Hicks was in the Alma Mine when he noticed a
miner cable hung across a belt line. While he was attempting to remove the
cable, a splice in the conveyor belt caught his jacket and pulled him down the
belt line, causing injuries to his right shoulder and neck. He did not return to
work following the injury.
Hicks received medical and income benefits from Southeastern Land’s
West Virginia workers’ compensation insurance carrier. 2 Notwithstanding, on
September 23, 2020, Hicks filed a workers’ compensation claim in Kentucky
alleging acute right shoulder and neck injuries with a claim for psychological
overlay, cumulative trauma injuries to his back and bilateral shoulders,
cumulative hearing loss, and coal workers’ pneumoconiosis (“CWP”).
2 In addition to medical benefits, Hicks received temporary total disability (TTD)
benefits of $823.14 per week from January 11, 2019, through September 3, 2020, and
a permanent partial disability (PPD) award based on an 8% whole person impairment
rating in the amount of $18,438.40.
3
Southeastern Land and its Kentucky insurance carrier, Kentucky
Employers’ Mutual Insurance Company (“KEMI”), argued Hicks’ claim should
be dismissed for lack of jurisdiction because the accident which resulted in his
injuries occurred in West Virginia and Kentucky’s extraterritorial coverage
statute—KRS 342.670—could not operate to save the claim. Following briefing
and a hearing, the ALJ issued an order concluding KRS 342.670(1)(a) was
applicable based on his conclusion that Hicks’ employment was “principally
localized” in Kentucky at the time of his West Virginia injuries, thereby
conferring jurisdiction in Kentucky for his claims. Based on this holding, the
ALJ awarded Hicks TTD benefits, PPD benefits, and medical benefits for his
back and shoulder injuries, while only medical benefits were awarded for his
hearing loss. Hicks’ CWP claim was dismissed.
Southeastern Land’s subsequent petition for reconsideration was denied
and KEMI appealed the ALJ’s decision to the Board. In affirming, the Board
concluded the evidence did “not compel a different result.” KEMI then
appealed to the Court of Appeals which reversed and remanded upon
concluding the ALJ and Board had misconstrued KRS 342.670, having erred in
holding Hicks’ employment was “principally localized” in Kentucky rather than
West Virginia. This appeal followed.
II. STANDARD OF REVIEW
The Court of Appeals conducts a review of the Board with the purpose of
“[correcting] the Board only where the Court perceives the Board has
overlooked or misconstrued controlling statutes or precedent, or committed an
4
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). Further review by
this Court of the decisions of the Court of Appeals and the Board is meant “to
address new or novel questions of statutory construction, or to reconsider
precedent when such appears necessary, or to review a question of
constitutional magnitude.” Id. at 688.
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
evidence.” Abbott Laboratories v. Smith, 205 S.W.3d 249, 253 (Ky. App. 2006).
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 Equip. Co., 297 S.W.3d
858, 866 (Ky. App. 2009).
More particularly, “[t]he question of jurisdiction is ordinarily one of law,
meaning that the standard of review to be applied is de novo.” Appalachian
Reg’l Healthcare, Inc. v. Coleman, 239 S.W.3d 49, 54 (Ky. 2007). While KRS
342.670 is titled “Extraterritorial coverage,” Kentucky appellate decisions have
historically used the terms “extraterritorial jurisdiction” and “extraterritorial
coverage” interchangeably in relation to KRS 342.670, and this Court has
expressly stated “KRS 342.670(1) provides that Kentucky can, under certain
limited circumstances, exercise jurisdiction over injuries suffered in other
states.” Consol of Kentucky, Inc. v. Goodgame, 479 S.W.3d 78, 84 (Ky. 2015)
(emphasis added).
5
III. STATUTORY CONSTRUCTION
As a matter of law, we review issues relative to statutory construction de
novo. Thus, on appeal, we owe no deference to the construction of statutes by
the trial court or Court of Appeals. Cumberland Valley Contractors, Inc. v. Bell
Cnty. Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007).
The primary objective in construing statutory language is determining
the intent of the Legislature in enacting the legislation. To do so, “we look first
to the language of the statute, giving the words their plain and ordinary
meaning.” Richardson v. Louisville/Jefferson Cnty. Metro Gov’t, 260 S.W.3d
777, 779 (Ky. 2008). Statutes are to be construed as they are written, and “the
intent of the Legislature must be deduced from the language it used, when it is
plain and unambiguous[.]” W. Ky. Coal Co. v. Nall & Bailey, 228 Ky. 76, 14
S.W.2d 400, 401-02 (1929).
If the statutory language is unambiguous, extrinsic evidence of legislative
intent and public policy need not be considered. Cnty. Bd. of Educ. of Jefferson
Cnty. v. Southern Pac. Co., 225 Ky. 621, 9 S.W.2d 984, 986 (1928). Conversely,
if an ambiguity exists, we may resort to examining legislative history and public
policy considerations to determine the true intent of the statute. MPM
Financial Group Inc. v. Morton, 289 S.W.3d 193, 198 (Ky. 2009). Otherwise,
statutes are to be “read . . . as a whole, and with other parts of the law of the
Commonwealth, to ensure that our interpretation is logical in context.”
Lichtenstein v. Barbanel, 322 S.W.3d 27, 35 (Ky. 2010). Utilizing these
principles, we turn to an analysis of the language contained in KRS 342.670.
6
IV. ANALYSIS
As in the Court of Appeals, the sole issue to be decided is whether KRS
342.670 authorizes KRS Chapter 342 medical and income benefits for injuries
Hicks sustained while working under a Kentucky employment contract as a
foreman for Southeastern Land at its West Virginia mining facility. Generally,
the statute was enacted to extend such benefits to employees suffering out-of-
state work-related injuries which would have otherwise been available under
KRS Chapter 342 had the injuries occurred within Kentucky, but only in
certain limited circumstances. In relevant part, 3 KRS 342.670(1) provides:
(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; . . . .
Thus, the dispositive issue in the present appeal concerns whether Hicks’
employment was “principally localized” in Kentucky, thereby sanctioning KRS
Chapter 342 coverage under KRS 342.670(1)(a), or whether his employment
3 Under the present facts, KRS 342.670(1)(c) cannot authorize KRS Chapter
342 extraterritorial coverage because—though he was hired under a Kentucky
employment contract and even if his employment were deemed “principally localized”
in West Virginia—that state’s workers’ compensation laws were applied to provide
medical and income benefits covering Hicks’ work-related injuries. Further, KRS
342.670(1)(d) cannot authorize KRS Chapter 342 coverage because—even though
Hicks was hired under a Kentucky employment contract—his position did not entail
work “outside the United States or Canada.”
7
was not “principally localized” in Kentucky but rather another state, including
West Virginia, whose workers’ compensation law is applicable, under KRS
342.670(1)(b), thereby disallowing KRS Chapter 342 coverage.
KRS 342.670(5)(d) provides the statutory definition to be applied to the
term, “principally localized,” stating:
A person’s employment is principally localized in this or another
state when:
1. His or her employer has a place of business in this or the other
state and he 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). 4 Thus, when determining if employment is “principally
localized” within a particular state, KRS 342.670(5)(d) directs an ALJ to first
discern whether the employer has a regular place of business in the state, and
if so, to then establish whether the employee regularly works at or from that
place of business. Haney v. Butler, 990 S.W.2d 611, 616 (Ky. 1999). If the
4 Notably, the General Assembly incorporated the disjunctive “or”
multiple times in crafting KRS 342.670(5)(d). As we have previously held “[i]n
common and natural usage the word ‘or’ is disjunctive and expresses an
alternative as between either of two or more separate subjects or conditions and
implies an election or choice as between them.” Cabinet for Health and Fam.
Servs. on behalf of C.R. v. C.B., 556 S.W.3d 568, 572 (Ky. 2018) (citations
omitted). Applying this legal precedent, it is clear the General Assembly plainly
intended that only one state—if any—can qualify as an employee’s “principal”
employment location. This construction is wholly consistent with the legal
understanding of the term, “principal,” which has been defined to mean “[c]hief;
primary; or most important,” thereby suggesting a singular and preeminent
character. Principal, Black’s Law Dictionary, 1443 (Rev. 11th ed. 2019).
8
answer to each inquiry is in the affirmative, then the employee’s employment
must be deemed to be “principally localized” in the subject state, and no
further analysis is warranted. Id. The resulting employment characterization
must be appropriately applied under the provisions contained in KRS
342.670(1).
The parties agree Hicks was injured while working in West Virginia.
Further, it is undisputed that Hicks would have been entitled to KRS Chapter
342 benefits if his injury had occurred in Kentucky. Thus, Hicks plainly falls
within the category of employees for whom KRS 342.670 potentially extends
coverage. Therefore, the dispositive issue centers on where Hicks’ employment
was “principally localized.”
Here, the ALJ determined Southeastern Land had a place of business at
its headquarters in Debord, Kentucky, that Hicks regularly worked at or from
that place of business, and that he had done so for twenty of the previous
twenty-three years “until the temporary transfer or loan” to the West Virginia
mine. The Board noted Hicks’ past work in Kentucky was not determinative
yet concluded Hicks’ testimony regarding the temporary nature of his West
Virginia employment to be compelling.
The Court of Appeals, citing Amax Coal Co. v. Smith, 748 S.W.2d 158,
160 (Ky. App. 1988), agreed with the Board that an employee’s past work
history is irrelevant because the inquiry under KRS 342.670(1) is limited to the
employee’s status “at the time of the injury.” It disagreed with the remainder of
the ALJ’s and the Board’s conclusions that KRS 342.670(1)(a) was applicable
9
and entitled Hicks to KRS Chapter 342 benefits. Our review confirms the
analysis and conclusion of the Court of Appeals was correct.
First, as relates to Kentucky workers’ compensation claims, the term
“regular” has been defined to mean “customary, usual or normal.” General
Elec. Co. v. Cain, 236 S.W.3d 579, 586 (Ky. 2007) (citing Webster’s New College
Dictionary, 928 (1995)). Legal lexicons have similarly defined “regular” to mean
“[s]teady or uniform in course, practice or occurrence; not subject to
unexplained or irrational variation” and “[u]sual, customary or general.”
Regular, Black’s Law Dictionary, 1155 (Rev. 5th ed. 1979).
Second, this Court has previously clarified the two-pronged requirements
enacted in the foregoing statutory definition of “principally localized,” holding:
for an employment to be principally localized within a particular
state for the purposes of KRS 342.670(4)(d)1., the employer must
either lease or own a location in the state at which it regularly
conducts its business affairs, and the subject employee must
regularly work at or from that location.
Haney, 990 S.W.2d at 617. Thus, to meet the first prong of the definition, it
must be shown an employer not only leased or owned a “place of business”
within a state, the employer must have also “regularly” conducted its business
affairs from that location. For this reason and applying the plain and ordinary
meaning of “regular,” an employer’s place of business under KRS
342.670(5)(d)1. is any leased or owned location at which its customary, usual,
and normal business-related activities are generally, typically, and routinely
carried out in a steady, stable, and consistent course.
10
Hicks argues Southeastern Land did not have a principal place of
business in West Virginia, thereby making it impossible for his employment to
be considered “principally localized” in that state under the first prong of KRS
342.670(5)(d)1. As an initial matter, the statutory scheme does not require an
employer to have a “principal” place of business in a state, but merely a “place
of business.” The location of Southeastern Land’s headquarters is immaterial
to the calculus. Further, Hicks’ assertion that Southeastern Land did not
operate a place of business in West Virginia is contrary to the evidence. Hicks
himself testified Southeastern Land’s Alma Mine was an active mine site and
admitted the company maintained structures on the site for equipment and
materials storage along with two mobile office trailers—one of which served as
his personal space for completion of paperwork. In support of his assertion
that his position was merely temporary, Hicks makes much of the office trailers
being “mobile” structures. However, Hicks’ point is immaterial because our
inquiry focuses on whether the employer owns or leases a location with a state
rather than on the permanency of a particular location or structure. Haney,
990 S.W.2d at 617.
Here, the record establishes Southeastern Land owned or leased
locations in both Kentucky and West Virginia at which it “regularly” conducted
business affairs related to its mining operations, whether at its headquarters or
its active mine sites. For these reasons, Southeastern Land clearly maintained
“a place of business” in each state pursuant to KRS 342.670(5)(d)1.
11
Third, under the foregoing statutory definition of “principally localized”
employment, it must next be determined whether the employee “regularly”
worked at or from the employer’s place of business located within a state.
Hicks argues he did not regularly work in West Virginia because he spent the
vast majority of his working years in Kentucky; his assignment to West Virginia
was merely “temporary;” he only paid Kentucky state income taxes; 5 his
domicile remained in Kentucky throughout his employment; and he completed
substantial amounts of work in Kentucky. We disagree.
Again, applying the plain and ordinary meaning to terms used in the
second prong of KRS 342.670(5)(d)1., an employee “regularly works” at or from
an employer’s place of business where he or she usually, ordinarily, generally,
or routinely performs his or her usual, customary, chief, or primary
employment duties, as opposed to locations where he or she may occasionally,
sporadically, or intermittently perform special, ancillary, subsidiary, or
subordinate employment duties. Generally, evidence that an employee spent a
significant portion or majority of his or her work time at an employer’s
particular place of business within a state impact the inquiry, if not prove
dispositive. Haney, 990 S.W.2d at 617-18. 6
5 We note, however, Kentucky and West Virginia entered into a reciprocal
income tax agreement on April 9, 1965, whereby employees who reside wholly in one
state but earn wages or salaries in the other are taxed by their state of residence, and
not the state where the income is earned. See 103 KAR 17:140. Thus, because Hicks
remained a Kentucky resident throughout the period he was working at the Alma
Mine, his income was only subject to taxation by the Kentucky Department of Revenue
and not by the West Virginia Tax Division.
6In Haney, the employer maintained corporate headquarters in Paducah,
Kentucky, and was involved in the business of hauling cargo over inland waterways
12
In Eck Miller Trans. Corp. v. Wagers, 833 S.W.2d 854 (Ky. App. 1992), the
Court of Appeals dealt with a factually analogous situation to the present
appeal. Wagers was a truck driver who resided in Kentucky and worked for a
company which did business in Kentucky and Tennessee. Id. at 855. For
approximately eighteen months, he was assigned to his employers’
Chattanooga, Tennessee, terminal, where he received most of his work orders.
Id. However, he performed a “substantial” amount of work from his home,
including preparing paperwork and performing vehicle maintenance tasks. Id.
During that time, Wagers sustained a work-related injury and did not return to
work. Id. An ALJ concluded Kentucky did not have extraterritorial jurisdiction
over Wagers’ claim. The Board reversed, but the Court of Appeals disagreed,
stating that
[u]pon our review of the record, we must hold that the ALJ’s
findings were consonant with the evidence presented to him. It is
indisputably the case that Miller assigned Wagers to work from
Miller’s place of business in Chattanooga, Tennessee, for the one
and one-half years prior to his accident. Wagers received
stretching across Kentucky, Alabama, Mississippi, Tennessee, and Louisiana. The
employee maintained an office at the Kentucky headquarter facilities but resided near
Nashville, Tennessee. As a “troubleshooter,” he traveled extensively, but there was no
evidence concerning what portion of his work time was spent in each state. He was
killed in a motor vehicle accident in Alabama while returning to his Tennessee home
after attending to the employer’s business affairs in Alabama. Though the employee
spent significant work time in Alabama at various ports, the employer did not lease or
own any property, nor did it maintain a business office in the state. We held the
evidence was insufficient to establish an Alabama place of business. We similarly held
the evidence was insufficient to establish the employee “spent a ‘substantial part’ of
his working time” in his employer’s service in Tennessee. Because it was undisputed
that employment was not principally localized in Kentucky, and because the evidence
was insufficient to establish employment was principally located in Alabama,
Tennessee, or any other state, we concluded Kentucky had jurisdiction over the claim
pursuant to KRS 342.670(1)(b), due to his having been hired under a Kentucky
employment contract.
13
substantially all his work orders from Chattanooga, and was in
fact in Tennessee when the accident in question occurred. Under
these circumstances, the ALJ’s finding under KRS 342.670(1)(a) as
defined by (4)(d)(1) [now KRS 342.670(5)(d)1 7] that Wagers worked
“from” Tennessee for statutory purposes is certainly supported by
“reliable, probative, and material evidence.” KRS 342.285(2)(d).
Here, like the truck driver in Wagers, Hicks was required to perform
some work-related tasks in Kentucky. However, as correctly noted by the
Court of Appeals, none of those tasks could be deemed more “substantial” than
the work performed by Wagers. Notably, the injuries incurred in the present
case and in Wagers each occurred outside of Kentucky after both employees
had regularly worked for a significant period in a neighboring state. Thus, the
logic and holding of Wagers apply with equal force to the present
circumstances.
Here, Southeastern Land conducted ongoing business-related activities
at its West Virginia mining facility where Hicks worked six days and sixty
hours per week while regularly and steadily performing his chief duties as an
onsite underground section foreman. He only occasionally traveled to the
company’s Kentucky headquarters or other mining locations to perform
ancillary, subsidiary, secondary, or special administrative or mining duties. He
had been employed as a foreman at the Alma Mine for seventeen months when
he sustained his injuries while performing his duties at the facility. Certainly,
the vast majority of his work time was devoted to his employment
7In 1996, the Kentucky legislature amended KRS 342.670, resulting in a
renumbering of this section. See 1996 Ky. Laws ch. 355 (S.B. 161) (eff. Jul. 15, 1996).
14
responsibilities at the West Virginia jobsite. For these reasons, Hicks
“regularly” worked at or from Southeastern Land’s regular “place of business”
in West Virginia pursuant to KRS 342.670(5)(d)1.
Based on the foregoing, and pursuant to KRS 342.670(1), we hold Hicks’
employment was “principally localized” in West Virginia. As a result, we
further hold Hicks does not qualify for KRS Chapter 342 benefits under KRS
342.670(1)(a) because his employment was not principally localized in
Kentucky, nor does he qualify under KRS 342.670(1)(b) because though
working under a Kentucky employment contract his employment was
principally localized in another state.
Accordingly, the decision of the Court of Appeals is affirmed.
VanMeter, C.J.; Bisig, Conley, Keller, Nickell and Thompson, JJ., sitting.
VanMeter, C.J.; Bisig and Conley, JJ., concur. Keller, J., dissents by separate
opinion in which Thompson, J., joins. Lambert, J., not sitting.
KELLER, J., DISSENTING: According to the record, Lewis Hicks is a 53-
year-old lifelong Kentuckian and coal miner who worked for a single
corporation or its subsidiaries for over two decades. He possesses a high school
degree and numerous mining certificates. While working at his employer’s West
Virginia mine in January 2019, Hicks attempted to remove a mining cable from
a conveyer belt line when a splice in the conveyer belt caught his jacket and
pulled him down the conveyer belt. He sustained significant injuries to his
right shoulder and neck. Hicks received approximately $92,000 in total
workers’ compensation income benefits from Southeastern’s West Virginia
15
workers’ compensation insurance carrier. A Kentucky Administrative Law
Judge (ALJ) awarded Hicks approximately $275,000 in workers’ compensation
income benefits (plus interest) to be reduced by the award he had already
received in West Virginia—meaning that Hicks would additionally receive over
$180,000 in income benefits for his injury in the Commonwealth of Kentucky
under KRS Chapter 342, our Workers’ Compensation Act. The Workers’
Compensation Board (Board) affirmed the ALJ’s award. Today, the Majority has
affirmed the Court of Appeals, which reversed the ALJ and the Board, and, in
doing so, has stripped Hicks of his Kentucky workers’ compensation award.
Because I would hold that the ALJ’s factual determination that Hicks
regularly worked at or from Kentucky is both supported by substantial
evidence and entitled to this Court’s deference, I would affirm the ALJ’s award
of workers’ compensation benefits to Hicks.
A. Standard of Review
Our standards of review in workers’ compensation cases have been firmly
established for decades. It is the ALJ, not this Court, that has the sole
discretion to determine the quality, character, and substance of the evidence.
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). On
appellate review, the ALJ’s findings of fact are entitled to considerable
deference. U.S. Bank Home Mortg. v. Schrecker, 455 S.W.3d 382, 384 (Ky. 2014)
(citing Bullock v. Peabody Coal Co., 882 S.W.2d 676 (Ky. 1994)). By the time a
workers’ compensation appeal reaches this Court, “our review is generally
limited to the determination of ‘new or novel questions of statutory
16
construction, or to reconsider precedent when such appears necessary, or to
review a question of constitutional magnitude.’” Lexington Fayette Urban Cnty.
Gov’t v. Gosper, 671 S.W.3d 184, 200 (Ky. 2023) (quoting W. Baptist Hosp. v.
Kelly, 827 S.W.2d 685, 688 (Ky. 1992)). Simply, we will not second-guess the
decisions of the ALJ, Board, or Court of Appeals upon the same evidence. Id. at
200. Accordingly, we will only reverse the ALJ’s decision where the “ALJ
overlooked or misconstrued controlling law or so flagrantly erred in evaluating
the evidence that it has caused gross injustice.” Schrecker, 455 S.W.3d at 384
(citing W. Baptist Hosp., 827 S.W.2d at 687–88).
B. Analysis
Whether Hicks is entitled to Kentucky workers’ compensation benefits,
as a matter of law, hinges on whether his injury is covered under our
Commonwealth’s “extraterritorial coverage” statute which prescribes certain
factual circumstances in which an employee who is injured outside of
Kentucky “shall be entitled to the benefits.” KRS 342.670(1). Hicks is “covered”
under KRS 342.670, in this case, if his employment was “principally localized”
in Kentucky under KRS 342.670(1)(a), which is, in turn, predicated on a
necessary factual finding that he “regularly works at or from” Southeastern’s
place of business in Kentucky.
This Court is not in the business of relitigating or reweighing the facts of
each workers’ compensation case that comes before it; we will not substitute
our judgment for that of the ALJ. However, that is exactly what the Majority
does in the case before us today. Rather than afford the ALJ’s factual findings
17
their due deference in this case, the Majority couches its analysis as a purely
de novo review of the ALJ’s “jurisdiction” determination. This is the wrong
standard of review against which to examine this case. Although often couched
as a question of extraterritorial “jurisdiction,” the plain language of KRS
342.670 itself makes no mention of jurisdiction, as it is titled “Extraterritorial
coverage,” and merely states circumstances under which an employee who is
injured outside of Kentucky “shall be entitled to the benefits provided by [the
workers’ compensation] chapter.” KRS 342.670(5)(d)(1).
Kentucky’s courts have often treated the factual preconditions necessary
to establishing extraterritorial coverage as just that: facts. Accordingly, our
appellate courts have not disturbed the ALJ’s determination of those facts
where they were supported by substantial evidence. See, e.g., Ky. Emps.’ Mut.
Ins. v. Burnett, 432 S.W.3d 733, 738–39 (Ky. App. 2014) (substantial evidence
supported the ALJ’s determinations that Appellee’s contract of hire was entered
into in Kentucky and his employment was not principally localized in any
state); Eck Miller Transp. Corp. v. Wagers, 833 S.W.2d 854, 855 (Ky. App. 1992)
(substantial evidence supported the ALJ’s determination that Appellee worked
“from” employer’s place of business in Tennessee, therefore his employment
was principally localized in Tennessee); Graham v. TSL, Ltd., 350 S.W.3d 430,
432-33 (Ky. 2011) (substantial evidence supported the ALJ’s determinations
that Appellant’s contract of hire was made in Missouri and his employment
was not principally localized in any state); Dallas Nat. Ins. Co. v. Board, No.
2012-SC-000288-WC, 2013 WL 3155846, *2 (Ky. June 20, 2013) (substantial
18
evidence supported the ALJ’s determination that Appellee regularly worked at
or from employer’s place of business in Kentucky, therefore his employment
was principally localized in Kentucky).
Here, the ALJ determined, as a matter of fact, that “[Southeastern] has a
place of business in Kentucky . . . and [Hicks] regularly works at or from that
place of business . . . .” As support for that finding, the ALJ noted an
abundance of substantial evidence which is necessary to recount.
The ALJ found that Hicks worked for Southeastern (or its predecessor)
for 23 years and worked full time in Kentucky for Southeastern for
approximately 20 of those years. The ALJ further found that Southeastern
asked Hicks to temporarily transfer to its mine in West Virginia in 2017 to
assist in developing a new mining technique. Hicks testified that he was chosen
for this assignment because of his expertise and skills pertaining to ventilation
techniques and his experience as a mine superintendent. The ALJ found that
Hicks was “loaned” to the West Virginia mine “with the understanding that he
would return to Kentucky to work.”
The ALJ noted that even after he began working in the West Virginia
mine, Hicks “remained in constant contact with his mines in Kentucky in
regard to equipment, inspections, and dust reports.” The ALJ further noted
that Hicks would receive phone calls and text messages from the workers at
the Kentucky mines “when he was in Kentucky and at home, all hours of the
night.” The ALJ also stated that Hicks “would occasionally visit the [Kentucky]
office to drop off equipment, discuss payroll issues, pick up parts that he could
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haul in his vehicle to take to West Virginia, and turn in safety equipment that
needed replacement or calibration.” Hicks would also go to the Kentucky office
to meet with supervisors “to receive instructions regarding mining issues and
execution of mine plans in regard to mines in Kentucky and West Virginia.”
The ALJ further stated that Hicks “would still work in Kentucky in regard
to mine safety practices and he would go back and forth.” Hicks conducted
“mine rescue visits at mines in Perry and Pike counties which were quarterly
visits and he trained in Kentucky at the Defendant’s mine rescue training
facility which was in Kentucky.” (Emphasis added). The ALJ further specifically
stated that Hicks “returned to Kentucky regularly to train at the Defendant’s
mine rescue facility in Warfield, Kentucky, and he entered underground mines
on a regular basis in Pike and Perry counties to train and be familiar with the
mines.” (Emphasis added).
My review of the record and the ALJ’s detailed opinion convince me that
the ALJ’s finding that Hicks “regularly worked at or from” Southeastern’s place
of business in Kentucky was supported by substantial evidence, and thus
entitled to this Court’s deference. I note that my conclusion is also shared by
the Board, which upheld the ALJ’s determination on this matter and stated
that “substantial evidence supports the ALJ’s finding that jurisdiction extended
to Kentucky pursuant to KRS 342.670(1)(a).” The Board further stated, “The
ALJ found Hicks’ testimony that he was a loaned employee to the Alma mine in
West Virginia on a temporary basis was credible and never rebutted. The ALJ
found Hicks was hired in Kentucky, was paid in Kentucky, and he continued to
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have contacts with the main office in . . . Kentucky on a regular basis.
Certainly, his work in West Virginia was not exclusive.”
I am further unconvinced, and unwilling to hold, that the specific facts of
this case are somehow insufficient as a matter of law to preclude an award of
benefits or that the language of KRS 342.670 precludes an award of benefits.
While this Court does not owe any deference to the ALJ’s application of the
facts of this case to our existing law, nor its interpretation of our
extraterritorial coverage statute, the Majority’s analysis does not adequately
explain which portions of the law the ALJ misconstrued in reaching its
determination—only that the Majority would reach a different determination
based on the facts of this case. Such an analysis is not one grounded in
interpretation of the statute, but rather in a reweighing of the evidence.
Simply, I would hold that the ALJ did not “misconstrue” any controlling
law in concluding that Hicks was entitled to workers’ compensation benefits
under KRS 342.670(1)(a). Until today, this Court had never thoughtfully
considered exactly what the legislature meant when it wrote “regularly works at
or from,” perhaps because of the inherent simplicity of these words. I am of the
opinion that the Majority’s reversal of the ALJ’s award today strips those words
of the simplicity the legislature intended and assigns to them a legal meaning
that hampers the discretion of our ALJs. In short, I do not believe that the ALJ
misconstrued the words “regularly works at or from” as the legislature wrote
them.
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KRS 342.670(1)(a) provides for workers’ compensation coverage under
the laws of Kentucky when an employee is injured in another state if his
“employment is principally localized in this state.” We next look to KRS
342.670(5)(d)(1), which provides that “[a] person’s employment is principally
localized in this or another state when . . . [h]is . . . employer has a place of
business in this or the other state and he . . . regularly works at or from that
place of business.” (Emphasis added). When we construe statutes, “our goal . .
. is to give effect to the intent of the General Assembly. We derive that intent, if
at all possible, from the language the General Assembly chose, either as
defined by the General Assembly or as generally understood in the context of
the matter under consideration.” Shawnee Telecom Res., Inc. v. Brown, 354
S.W.3d 542, 551 (Ky. 2011) (citing Osborne v. Commonwealth, 185 S.W.3d 645
(Ky. 2006)). We are to “lend words of a statute their normal, ordinary, everyday
meaning.” Adams v. Commonwealth, 599 S.W.3d 752, 754 (Ky. 2019) (quoting
Stephenson v. Woodward, 182 S.W.3d 162, 170 (Ky. 2005)). Further, “we
assume that the ‘[Legislature] meant exactly what it said, and said exactly what
it meant.’” Revenue Cabinet v. O’Daniel, 153 S.W.3d 815, 819 (Ky. 2005)
(alteration in original) (quoting Stone v. Pryor, 103 Ky. 645, 45 S.W. 1136, 1142
(1898) (Waddle, S.J., dissenting)). We also presume that the General Assembly
intended for all of a statute’s parts to have meaning. Shawnee Telecom, 354
S.W.3d at 551.
I find it noteworthy that the plain language of the statute includes no
requirement of comparative analysis—meaning it does not require that a
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person work at or from one state (Kentucky) more often than another (West
Virginia), in order for his employment to be principally localized there
(Kentucky). Neither does the statute prohibit the ALJ from considering the
“temporary” nature of an employee’s work location at the time of injury. Nor
does it preclude the ALJ from considering an employee’s entire work history
with his employer. The statute simply requires that the employee “regularly
works at or from” a place of business in Kentucky at the time of his injury.
As the Majority points out, this Court has previously employed the words
“customary, usual or normal” to define the meaning of the word “regular” in
some workers’ compensation contexts. Gen. Elec. Co. v. Cain, 236 S.W.3d 579,
586 (Ky. 2007) (citing Webster’s New College Dictionary, 934 (1995)). However, I
assert that the use of the word “regular” in the phrase “regularly works” in KRS
342.670 refers only to regularity of time spent at the place of business as
opposed to regularity of task performed at the place of business, as is held by
the Majority. In order for an employee to “regularly work” at or from a certain
place of business, he must “usually, ordinarily, generally, or routinely perform[]
his or her” work duties there. There is nothing in the statute, however, that
requires that the duties performed at that location must also be “usual,
customary, chief, or primary.” Such a requirement would further frustrate the
portion of the statute that extends coverage to employees who regularly work
from Kentucky.
I further posit to the Majority that a determination of what is usual,
ordinary, or routine necessarily involves a consideration of past practices and
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temporality—exactly the considerations most persuasive to the ALJ in the case
before us today. The Majority’s interpretation of KRS 342.670 minimizes, if not
erases, those considerations from the ALJ’s review; surely this cannot be what
the legislature meant when it used the word “regularly.” I am of the opinion
that the legislature did not intend to exclude from workers’ compensation
coverage those long-term Kentucky employees, like Hicks, who devote
substantial portions of their careers to one Kentucky company and are merely
temporarily transferred out of state for the benefit of their Kentucky employer.
I am further unwilling to say that the transient nature of Hicks’s
employment—his travel “back and forth” from Kentucky and West Virginia—
somehow disqualifies him from coverage under KRS 342.670. It appears to
have been overlooked that our extraterritorial coverage statute clearly seeks to
extend coverage to those workers who work “at or from” a place of business in
Kentucky. (Emphasis added). The presence of the disjunctive “or” indicates
those two words which it separates are to be given separate meanings. MGG
Inv. Group LP v. Bemak N.V., Ltd., 671 S.W.3d 76, 85 (Ky. 2023).
The plain language of this provision benefits those workers, like Hicks,
that cross state lines for work, but maintain a regular or fixed place of
employment in Kentucky from which they are dispatched. See, e.g., Wagers,
833 S.W.2d 854; Dallas Nat. Ins. Co., 2013 WL 3155846; Gaddis v. Lone Star
Transp., No. 2009-CA-001173-WC, 2010 WL 2010871 (Ky. App. May 21, 2010).
Our extraterritorial coverage statute is perhaps most important to those
workers who work from Kentucky, because it is those workers who assume the
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greatest odds they will be injured outside of the Commonwealth, and therefore
it is for the benefit of those workers that the statute exists at all.
Although the Majority relies heavily on the analysis conducted by the
Court of Appeals in Eck Miller Transportation Corp. v. Wagers, 833 S.W.2d 854,
this Court has only reviewed the application of this crucial portion of the
extraterritorial coverage statute once. In that case, we affirmed an ALJ’s finding
that a Kentucky worker who regularly picked up a truck from his employer’s
place of business in Kentucky, received goods to be shipped, drove those goods
out of state, and was then injured in North Carolina did work “from” Kentucky
for purposes of extraterritorial coverage. Dallas Nat. Ins. Co., 2013 WL
3155846, at *2. I see no reason why the logic of this holding cannot be applied
to those Kentucky workers, like Hicks, who similarly engage in frequent travel
across state lines in service to their employer.
I reemphasize the ALJ’s findings that Hicks would “visit the [Kentucky]
office to drop off equipment, discuss payroll issues, pick up parts that he could
haul in his vehicle to take to West Virginia,” and that he would “receive
instructions [at the Kentucky office] regarding mining issues and execution of
mine plans in regard to mines in Kentucky and West Virginia.” These facts
certainly support a finding that Hicks worked from Southeastern’s place of
business in Kentucky. Dropping off and picking up equipment, along with
receiving instructions and mine plans from a central office, are analogous to
those employment tasks completed by the worker in Dallas National Insurance
Co. who we held did, in fact, work from Kentucky.
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In sum, there is nothing in the plain language of KRS 342.670 that
precludes the ALJ’s award of benefits to Hicks in the case before us today, nor
did the ALJ weigh the facts of this case against an incorrect legal standard. In
interpreting this statute, I further embrace the principle that this Court should
liberally construe our Workers’ Compensation Act “in favor of the employee in
order to effectuate the beneficent purposes of the” Act. Lewallen v. Peabody
Coal Co., 306 S.W.2d 262, 264 (Ky. 1957) (citing Bartley v. Bartley, 274 S.W.2d
48, 49 (Ky. 1954)). The legislature’s use of the entire phrase “regularly works at
or from” indicates an intention to broadly apply its extraterritorial coverage
statute. The phrase shows an intent for extraterritorial coverage to be
comprehensive and inclusive. The Majority applies this phrase narrowly, which
is at odds with both the intent of the legislature and the beneficent purposes of
the Act.
Simply, Hicks regularly worked at or from Southeastern’s place of
business in Kentucky for two decades and was asked to temporarily relocate to
Southeastern’s West Virginia location with the promise that he would soon
return to working in Kentucky full-time. Hicks obliged and began a 17-month
stint in West Virginia, during which he continued to work at or from
Southeastern’s Kentucky places of business on a regular basis. Hicks was then
injured at Southeastern’s place of business in West Virginia. For purposes of
workers’ compensation coverage under KRS 342.670, I cannot say that Hicks
did not “regularly work at or from” Kentucky at the time of his injury as a
26
matter of law. Nor can I say that the ALJ’s factual determination that Hicks
“regularly worked at or from” Kentucky was not based on substantial evidence.
Accordingly, I would affirm the ALJ’s award of benefits to Hicks.
Thompson, J., joins.
COUNSEL FOR APPELLANT:
McKinnley Morgan
W. Gerald Vanover, Jr.
Morgan Collins Yeast & Salyer
COUNSEL FOR APPELLEE, KEMI:
Johanna Frantz Ellison
Taylor L. Oldham
Fowler Bell PLLC
COUNSEL FOR APPELLEE, SOUTHEASTERN LAND LLC:
Brandon L. Rosen
POHL, AUBREY, GRAY P.S.C.
COUNSEL FOR APPELLEE, UNINSURED EMPLOYERS’ FUND:
James R. Carpenter
Assistant Attorney General
WORKERS’ COMPENSATION BOARD:
Hon. Michael Wayne Alvey
Chairman
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