The Kentucky Workers’ Compensation Nominating Commission has recommended Carla H. Montgomery, Carole Meller Pearlman and Rebekkah B. Rechter to fill the unexpired term of Board Member Lawrence Smith, who recently died. Montgomery is former General Counsel with the Department of Workers’ Claims, Pearlman is a Louisville, Ky attorney and Rechter is a Louisville, Ky attorney. The Kentucky Workers’ Compensation Board consists of three members and is the first level of review in the Kentucky workers’ compensation appeal process. Current Board Members of Franklin Stivers and Michael Alvey.
From the Kentucky Department of Workers’ Claims:
“We learned earlier this morning that Workers’ Compensation Board Member and former ALJ Larry Smith passed away yesterday at Hardin Memorial Hospital. Arrangements are pending at this time. When we know more, we will let you know. Larry had a calm demeanor, caring spirit and always tried to serve the Workers’ Compensation community. He accomplished a great deal in his life and will be missed by all of us. Please keep Larry’s wife Dollye and all his family in your thoughts and prayers.”
UPDATE: The funeral will be held 11:00 A.M. Saturday, May 11, 2013, at First Baptist Church, 107 Bishop Lane, Elizabethtown, with Dr. B.T. Bishop officiating. Visitation begins at 5:00 P.M. Friday, May 10, 2013 at Percell and Sons Funeral Home.
For more information or to sign the guest book go to: http://percellandsonsfuneralhome.com/
JJ’s Smoke Shop, Inc. v. Mary J. Walker, et al.
NO. 2012-CA-000851-WC
Rendered: 2-1-2013
On July 22, 2009, Joshua Pendleton who was employed at JJ’s Smoke Shop closed down the shop after his shift was over and went home. Later that night Pendleton was picked up by Andrew and Samuel Marra for what Penleton thought was to go by drugs. However, the Marra brothers tasered Penleton and held him hostage at knifepoint, informed him that they were going to rob JJ’s and forced him to unlock the door and disable the alarm. In the course of robbing the store, Andrew Marra murdered Pendleton by forcing him into the bathroom and stabbed him sixty-eight times.
Pendleton’s estate filed a claim for death benefits claiming that that Pendleton was killed within the course and scope of his employment. JJ’s denied this claim arguing Pendleton’s death was not work related.
The ALJ applied the presumption set forth in KRS 342.680, a rebuttable presumption which presumes work relatedness “in the absence of substantial evidence to the contrary…” In finding the case compensable, the ALJ initially agreed with JJ’s that Pendleton left the course and scope of his employment when he left the shop after work, but that he was later forced back into the scope of his employment when he was made to reopen the shop and disable the alarm. The ALJ found that there was a “direct relationship between Mr. Pendleton’s knowledge and capability of getting into the store and his murder.”
The ALJ denied JJ’s petition for reconsideration, the Board affirmed the ALJ’s decision on appeal, and a petition to review the Board’s decision followed.
On review, JJ’s first claimed that the ALJ filed to make correct or sufficient findings of fact. The Court disagreed finding that relying on Samuel Marra’s recorded statement in finding Pendleton was murdered during the course of the robbery was sufficient to support the award.
JJ’s argued that the ALJ’s finding that the smoke shop was a business more prone to being robbed than an ordinary retail business was unsupported by the record. The Court disagreed and referenced various facts in the record which would support this finding. However, the Court stated that even if this finding were unsupported by the record, this would be a harmless error. Because there was sufficient evidence to establish a causal connection between Pendleton’s employment and his death, whether or not the shop is more prone to a robbery is insignificant.
Next, JJ’s claimed the ALJ erred by finding Pendleton’s death arose out of and in the course of his employment. Specifically, JJ’s argued that the ALJ never addressed the substantial evidence presented that proved the death was not work related and in effect used the rebuttable presumption in KRS 342.680 as an irrebuttable presumption. The Court acknowledged that the record revealed the ALJ did consider JJ’s evidence and that the ALJ found such evidence to be based on speculation and innuendo, that it was not substantial evidence, and it failed to rebut the presumption. The Court agreed with the ALJ.
Finally, JJ’s argued that Pendleton violated store policy by not calling the store owner and informing him that he was returning to the store after hours. The Court found that this did not have a bearing on whether the KRS 342.680 presumption was rebutted. The Court pointed out that they did not have the insight to determine whether or not Pendleton was going to call the owner. The record indicated that Pendleton did not know he was going to the store before he entered the car with the Marras and that the danger which thereafter ensued would prevent such a call from being made.
The Court affirmed the opinion of the ALJ.
COMMENT: Tragic case where the facts could have leaned in favor of the defense just as easily. Sympathy and a sufficient finding for compensability won out though.
The Ky. mileage reimbursement rate for April 1, 2013 through June 30, 2013 is now 47 cents.
The Controller’s website has been updated to reflect this change.
Refer to the Controller’s web page for all related travel information at http://finance.ky.gov/services/statewideacct/Pages/travel.aspx
If you would like to be added to the Controller’s Travel Information Distribution list, please contact me at patricia.boler@ky.gov.
From the Lexington Herald-Leader:
“Two Pike County men who employed contract coal miners have admitted taking part in a multimillion-dollar scheme to defraud a workers’ compensation provider.
“Frelin Workman, 58, and Randy Lee Workman, 36, both of Belfry, pleaded guilty this week in federal court in West Virginia, according to a news release from Booth Goodwin, U.S. Attorney for the southern part of that state.
“Frelin Workman and a partner, Jerome Edward Russell, 50, of Williamson, W. Va., operated a company called Aracoma Contracting LLC, which provided miners to coal companies in West Virginia on a contract basis. Randy Lee Workman operated a similar employee-leasing company called Christian Contracting.”
“When the end of the world comes, I want to be in Kentucky, because everything there happens 20 years after it happens anywhere else.” – Mark Twain
From the DWC: The Open Records Online Request Service is currently experiencing technical difficulties. They are “working on the issue” and harbor the hope to have the system working again soon. They advise If you need to submit a request, fax them (Hello, again, 1984) at 502-564-5732.
The online records request service has only been operational for a short period of time. Its usefulness, since that time, has been inconsistent.
FROM THE KENTUCKY DWC AND THE CONTROLLER: The new mileage reimbursement rate beginning January 1 – March 31, 2013 is 45¢ per mile.
The Controller’s website has been updated to reflect this change. Refer to the Controller’s web page for all related travel information at http://finance.ky.gov/services/statewideacct/Pages/travel.aspx!
If you would like to be added to the Controller’s Travel Information Distribution list, please email patricia.boler@ky.gov
The Kentucky DWC, after a bit of a delay (15 years, perhaps?), finally has its online records search up and running. We at OUCH! originally thought the records system would allow for actual online viewing of the records. Uhhhhh, no. The new system is really nothing more than a glorification of the original fax-a-request that has long been the procedure for obtaining claims information from the DWC. In fact, it is probably not much slower and it is certainly less of a hassle to fax a request and receive the invoice, write a check and then receive the documents. The whole process requires two tasks on the part of the requester and takes approximately 3-4 days even with snail mail delivery of the documents.
With the so-called new and improved online method, one has to first sign up for an account (and remember to make a note of the username and password), make the request, wait for the request to be processed, receive an e-mail saying the request is being processed, wait to receive an invoice via e-mail, go back to the website to pay the invoice (with credit card only) and then wait to receive a link via e-mail to the records. The DWC estimates a 4-5 day turnaround for all of this.
When your records are available, they arrive via a link to a .zip file and are merely unlabeled individual .pdf files, so one has to click on each document to see what it is. To look easily at the documents at once, it is necessary to combine the documents into one .pdf file, and that requires software that can perform such a task.
We will just stick with the old method. Good try, DWC, but no thanks.
