UPDATED:  REVERSED BY SUPREME COURT AND REMANDED FOR FURTHER FINDINGS OF FACT (J.J.’s Smoke Shop, Inc. v. Walker, No. 2013-SC-000114-WC, (Ky. 2014)

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.

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