KY Court Allows Claim for Benefits for Pilot Killed while Commuting to Work

June 18, 2010 ( – The Kentucky Supreme Court has ruled that an administrative law judge must reconsider worker’s compensation benefits for the wife and minor child of an Airtran pilot who was killed while commuting by airplane to work.

The court said the ALJ misapplied the law by failing to consider all factors material to concluding whether Clarence Fortney’s death came within the service to the employer exception. Airtran argued that Fortney’s death was not work-related because he was simply commuting to work; provided no service to the employer in doing so; and benefited personally from being able to commute free or at a reduced fare under an arrangement with Comair.

The court said the ALJ failed, however, to consider whether the free or reduced-fare arrangement induced Fortney to accept or continue employment with Airtran, and a favorable finding would have brought the trip from Lexington, Kentucky, where he lived, to Atlanta, where he was based with the airline, within the course of his employment. The ALJ denied coverage under the service to the employer exception based on a finding that Airtran’s free or reduced-fare arrangement with Comair benefited Fortney by allowing him to live where he chose but burdened Airtran, according to the court opinion.  

The court said that at no time did Airtran place restrictions on where employees lived; thus, Fortney’s statement at hiring concerning his willingness to relocate would not alone support a reasonable finding that the arrangement was neither an inducement to accept the employment nor to continue it. The court found it unnecessary under the circumstances to consider other going and coming rule exceptions, and remanded the claim to the ALJ to consider the remaining issues.  

While the ALJ determined that Clarence Fortney’s death in the airplane accident was not work-related, the Workers’ Compensation Board reversed, saying the evidence compelled a favorable finding. However, a Court of Appeals reversed and reinstated the ALJ’s decision.  

The Kentucky Supreme Court’s decision is here.