Kentucky High Court Splits in Case Involving Personal Comfort Doctrine

In a split decision dealing with the application of the personal comfort doctrine described in Larson’s Workers’ Compensation Law, § 21.01, et seq., a majority of the Supreme Court of Kentucky reversed a decision of the state’s court of appeals which, in turn, had affirmed decisions of an administrative law judge and the state’s Workers’ Compensation Board [see US Bank Home Mortgage v. Schrecker, 2014 Ky. LEXIS 617 (Dec. 18, 2014)]. Quoting extensively from Larson, the majority held that a bank employee’s injuries sustained when, during a paid break, she was struck by a car as she crossed a busy street to get a quick bite of lunch did not arise out of and in the course of her employment. Giving lip service to the rule that the ALJ’s findings of fact should not be set aside “unless the evidence compels a contrary finding,” the high court found that in jay-walking (crossing the street between intersections) and failing to yield to an oncoming vehicle, the bank employee “voluntarily exposed herself to a hazard so completely outside those normally encountered” as to negate any authority the bank had over her.

The Personal Comfort Doctrine

As pointed out in Larson, § 21.01, employees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred, or unless, in some jurisdictions, the method chosen is so unusual and unreasonable that the conduct cannot be considered an incident of the employment.

Parties’ Contentions

The majority noted that the primary issue was whether the bank employee was in the course and scope of her employment when injured. The bank argued that the employee was not because:

1. She was not on US Banks operating premises when the injury occurred;
2. She had temporarily abandoned her job; and
3. She lost any protection she may have had by virtue of the personal comfort doctrine when she took an unreasonable route to get from the bank to the nearby Taco Bell.

The employee argued that she was within the course and scope of her employment because:

1. She was on a paid break;
2. The bank benefitted generally from the increased employee morale the breaks provided and specifically benefitted from the employee working through her lunch break that day;
3. The bank permitted employees to leave the premises and to cross the street to seek refreshments on their breaks;
4. Employees regularly crossed the street seeking refreshments during their breaks; and
5. There was no evidence that the employee had any motive other than personal comfort for crossing the street.

Applying what the majority called “Professor Larson’s factors,” it concluded that the ALJ had erred when he found that the bank employee was within the course and scope of her employment when injured.

The Bank Employee’s Deviation in Jay-Walking

The majority noted that the employee’s break was: relatively short in duration; paid; and sanctioned, if not encouraged, by the bank. Those factors weighed in favor of the bank employee as they were indicia of the bank’s exercise of authority over its employee. The employee was free to go wherever she pleased and to do whatever she wanted to do on her break. Those factors weighed in favor of the bank as they were indicia of the bank’s lack of authority over the employee.

The majority indicated that if this were all of the evidence, it “would likely defer to the ALJ.” The majority added, however, that one factor—the hazard the employee encountered—outweighed the others (so much for an appellate court’s inability “to weigh” the evidence). By crossing the street between intersections and walking in front of a moving vehicle, the majority said the bank employee “voluntarily exposed herself to a hazard so completely outside those normally encountered in going to or coming from work as to negate any authority [the bank] may have had over her.”

Did Majority Interject Fault into the No-Fault Workers’ Comp Arena?

Isn’t the majority interjecting a measure of fault, disqualifying the bank employee from benefits because she jay-walked? The majority recognized this potential problem, stating:

The dissent states that we inject negligence into workers’ compensation claims by this opinion. However, that is not the case. We have not, and do not, hold that Schrecker’s claim is not compensable because she was at fault for her injury. What we do hold is that her claim is not compensable because, like the claimant in Ratliff, she deviated from normal coming and going activities and that deviation mandates denial of her claim.

Turning again to Larson, § 21.08(4)(d), the majority indicated a distinction needed to be drawn between usual and “unusual” methods of seeking personal comfort [again, how often do appellate courts entertain such factual issues as to whether an action is unusual?]. Jay-walking is forbidden by statute (KRS 189.570(6)(a), to be exact), stated the majority. The bank employee’s method of crossing the street was not, therefore, usual; it was “impliedly forbidden” by the bank.

So, the majority wasn’t interjecting fault into the scenario because it said it wasn’t. Apparently, if the bank employee had chosen to drive to a nearby fast food restaurant and had an accident while driving 26 mph in a 25 mph zone, she would also not be awarded workers’ compensation benefits since it’s also a statutory violation to speed.

No Blanket Operating Premises Rule

The majority, although encouraged by the bank to do so, declined to adopt a blanket operating premises rule with regard to employee injuries that occur during personal comfort breaks. Rather, the majority held that cases involving such injuries must be evaluated on a case-by-case basis.

Justice Scott, joined by Justice Cunningham, dissented. According to the Justices, the bank employee had worked six-and-a-half hours without a meal. She rushed out to get a quick bite while on a paid break. She made an absent-minded mistake in crossing the street at an inappropriate spot. Adhering to the policy of liberally construing workers’ compensation, Justice Scott indicated he would have found that the bank retained sufficient authority over the employee to allow her to recover for her work-related injuries.

Additional Comment: The Kentucky Supreme Court as Fact-Finder

The majority held that cases involving personal comfort injuries “must be evaluated on a case-by-case basis.” It added that In doing so, “the ALJ must determine the extent to which the employer exercised authority over the employee during his/her break.” The majority listed a number of non-exclusive factors to be considered. One is “whether the employee’s activity during the break amounted to a substantial deviation from seeking personal comfort.” Rather than reverse the Court of Appeals and remand the case for a determination was to whether the bank employee’s action in jay-walking amounted to a substantial deviation, the majority found that it was such a deviation. With all due respect to the high court, is it really supposed to make such specific findings of fact?