Wis.LIRC WC Decision: Kinney - November 12, 1993 - ND � 3.8 - Presumption of Continuing Employment - what defeats the presumption; � 3.10 - Act in Violation of Employer Directive - Course of Employment - deviation; � 8.28 - Rules of Evidence - Hearsay

BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

STEVEN D KINNEY (DECEASED)
CARLENE KINNEY, Applicant

STEMPER'S I 94 SHELL INC, Employer

SHELBY INSURANCE COMPANY, Insurer

WISCONSIN WORK INJURY SUPPLEMENTAL BENEFIT FUND, Interested Party

WORKER'S COMPENSATION DECISION
Claim No. 87002498

Applicant Carlene Kinney, and Stemper's I-94 Shell, Inc. and its insurer, both submitted petitions for commission review alleging error in the administrative law judge's Findings and Order issued on May 3, 1993. At issue is liability of the employer and its insurer for death benefits and, if liability is determined, whether Carlene Kinney was a dependent of Steven Kinney.

The commission has carefully reviewed the entire record in this matter, and has consulted with the administrative law judge concerning his personal impressions of the witnesses who testified before him, and on that basis it now makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case presents the questions of whether worker's compensation death benefits are due as a result of the murder of Steven Kinney ("Kinney" ), and to whom they should be paid if they are due.

Beginning in January 1986, Steven Kinney worked as an attendant and cashier at Stemper's I-94 Shell, Inc. ("station"), a gas station-convenience store located near the intersection of I-94 and Highway 50 outside of Kenosha. He was murdered on the premises of the station in the early morning hours of December 31, 1986. He was 21 years old.

The station, which ceased operations in 1988, was operated on a 24-hour a day, seven day a week basis. It was owned by Thomas Stemper ("Stemper"). The station manager was Richard Thiel ("Thiel"). Thiel worked first shift at the station, from 7 a.m. to 3 p.m. Kinney was ordinarily scheduled to work second shift, from 3 p.m. to 11 p.m., Monday through Friday. Luigi Aiello was regularly scheduled during that period of time for third shift, from 11 p.m. to 7 a.m.

Employes of the station sometimes exchanged shifts with one another. They would sometimes do this without first clearing it with Thiel or Stemper, and Thiel was aware of this. Despite the fact that employes were supposed to clear shift changes with Thiel or Stemper first, employes who engaged in such shift changes without clearing it with Thiel or Stemper were not given written warnings or reprimands or threatened with discharge or discipline, and they were paid for the hours they had worked.

Since the time he acquired the station, Stemper had a rule that employes of the station were not to be on the premises other than when they were working there, unless they were there as actual customers. The rule was to the effect that off-duty employes should not loiter or hang around. Stemper had his manager, Thiel, communicate this rule to the employes verbally. The rule was communicated to all employes.

Stemper also had another rule, created after Luigi Aiello reported that the station had been robbed while he was working third shift on December 24, 1986, to the effect that on third shift the door to the station was to be locked and no one, including even customers, was to be allowed inside. According to this rule, during third shift all transactions with customers were to be handled through a "cash transaction window" in the wall through which cash and change could be passed. As soon as the rule was imposed, Thiel prepared a handwritten sign which read "Station is locked from 12 p.m. to 7 a.m., please use cash drawer," which hung on the station door. The rule requiring the use of the cash transaction door was for security purposes. Kinney knew of the rule concerning keeping the station locked on third shift, knew that it arose out of the reported Christmas robbery attempt, and knew that its purpose was related to security.

On December 30, 1986, a Tuesday, Kinney was scheduled to work second shift. He reported to work and punched in that day at 3:11 p.m. However, he left the premises soon thereafter, and he spent the afternoon and early evening playing cards with his father at his aunt's house. During this time, another employe of the station, Ken Passinault, was actually working at the station. Kinney left the card game at his aunt's house and returned to the station at approximately 8 p.m. that evening. At some point that evening while Kinney was still absent from the station, Aiello had telephoned the station and asked Passinault if he would work Aiello's 11 p.m. to 7 a.m. shift for him, but Passinault told him that he had something else to do. After his return to the station at approximately 8 p.m., Kinney in fact stayed at the station past the end of the second shift and into the third shift. Based on the evidence that employes sometimes arranged shift changes without first clearing it with Thiel and Stemper, the evidence that Aiello sought unsuccessfully to have Passinault work his third shift assignment for him on the night of December 30-31, and the evidence that Kinney in fact worked into the third shift that night, the commission infers that at some point on the evening of December 30, Kinney agreed to work third shift that night for Aiello.

At some point during the evening of December 30-31, another employe of the station, John Ekornaas, came to the station and remained there.

Kinney and Ekornaas were both murdered inside the station some time shortly prior to 4:04 a.m. on the morning of December 31. Their bodies were found in a utility room in the back of the station, separated by another room and then by a door from the front merchandise and cashier area of the station. Both men had been beaten and stabbed; they were also set afire, either before or after their deaths. It is established by virtue of judgments of conviction entered on June 25, 1987, that the murder of Kinney was committed by Luigi Aiello and another person, Spriggie Hensley, who was not an employe of the station. Hensley (but not Aiello) was convicted of murdering Ekornaas, and both Hensley and Aiello were convicted of armed robbery of both Kinney and Ekornaas, and arson.

Section 102.03 (2), Stats., sets out the conditions that must concur before an employer will be liable for worker's compensation benefits. One is that at the time of injury the employe must be performing service growing out of and incidental to his employment. Section 102.03 (1)(c)1., Stats. This condition is generally referred to by the phrase "course of employment." See, Goranson v. DILHR, 94 Wis. 2d 537, 549, 289 N.W.2d 270 (1980). Another condition is that the accident or disease causing injury must arise out of the employe's employment. Section 102.03 (1)(e), Stats. This condition is generally referred to by the phrase "arising out of employment." Ibid. These two conditions, which are prerequisites to recovery, are independent and must be proven separately. Allied Manufacturing Inc. v. DILHR, 45 Wis. 2d 563, 566, 173 N.W.2d 690 (1970). Both must be met for liability to exist. Nash Kelvinator Corp. v. Industrial Comm., 266 Wis. 81, 84, 62 N.W.2d 567 (1954).

The answer and the argument of the employer have put both of these conditions into issue.

The parties have laid great emphasis on arguments about the "positional risk" doctrine, but these arguments do not bear on both of these two issues. The "positional risk" doctrine is an interpretation only of the term "arising out of employment," see, Allied Manufacturing, Inc. v. DILHR, 45 Wis. 2d at 568, and it serves to define only the circumstances under which accidents "arise out of" employment, Goranson v. DILHR, 94 Wis. 2d at 555. It does not resolve "course of employment" issues. An employe may still step outside of the employment relationship so as to no longer be in the "course of employment," even in situations where the "positional risk" doctrine might otherwise apply to the "arising out of" issue. Ibid. The commission considers that "course of employment," not "arising out of," is the critical issue in this case.

The applicant bears the burden of proving that the employe was in the course of his employment at the time the injury occurred. See, Van Valin v. Industrial Comm., 15 Wis. 2d 362, 364, 112 N.W.2d 920 (1962). Where (as here) the evidence shows that an employe entered upon the performance of his duties, and was later found dead at a place where he might have been in the discharge of those duties, but there are no witnesses to confirm the supposition that he in fact was in the course of employment when fatally injured, an applicant obviously confronts an obstacle to meeting their burden of proof. In such cases, courts have provided some measure of relief by indulging the presumption that the employe was continuing to perform services in the course of their employment at the time of the injuries--but this presumption prevails only so long as there is "nothing appearing to the contrary." Tewes v. Industrial Comm., 194 Wis. 489, 494, 215 N.W. 898 (1928). Evidence which overpowers the inference of continuation in the course of employment will defeat the presumption. Hansen v. Industrial Comm., 258 Wis. 623, 625, 46 N.W.2d 754 (1951). "Once an employe has entered into the course of his employment, the test to be applied in determining whether he has removed himself therefrom is that of deviation. In other words, has the employe engaged in some activity of his own which has no relation to the employer's business?" Krause v. Western Casualty and Surety Company, 3 Wis. 2d 61, 72-73, 87 N.W.2d 875 (1958). The presumption of continuation in course of employment is defeated when the evidence shows that the deceased had engaged in conduct in disobedience of the employer's orders, solely for the employe's personal benefit and not for that of the employer. M. W. Martin, Inc. v. Industrial Comm., 13 Wis. 2d 574, 580- 83, 109 N.W. 2d (1961). See, e.g., Radtke Brothers and Korsch Company v. Rutzinski, 174 Wis. 212, 183 N.W. 168 (1921), Kosteczko v. Industrial Comm., 265 Wis. 29, 60 N.W.2d 355 (1953). Such a deviation from the course of employment, measured in terms of time and space, may be slight--but if the employe has wilfully performed a wrongful act in furtherance of his own purpose and without the scope of his employment, there is no liability. Tyrell v. Ind. Comm., 27 Wis. 2d 219, 226, 133 N.W.2d 810 (1965); Peterman v. Industrial Comm., 228 Wis. 253, 358, 280 N.W. 379 (1938), quoted in Nash Kelvinator Corp. v. Industrial Comm., 266 Wis. at 87. The question of whether an employe has "deviated" (or "departed") from the course of employment is as relevant in the case of non-travelling employes as it is in the case of travelling employes. See, e.g., Kosteczko v. Ind. Comm., 265 Wis. at 30, 31; Tewes v. Ind. Comm., 194 Wis. at 493; Simmons v. Ind. Comm., 211 Wis. 449, 248 N.W. 443, 445 (1933).

The question of whether a deceased employe was performing services in the course of and incidental to his employment at the time of injury is a question of ultimate fact. Grant County Service Bureau v. Industrial Comm., 25 Wis. 2d 579, 582, 131 N.W.2d 293 (1964), Stommel v. Industrial Comm., 15 Wis. 2d 368, 373, 112 N.W.2d 904 (1962).

Bearing these legal principles in mind, and having carefully considered all of the record evidence, the commission now finds as a matter of ultimate fact that at the time of the injuries which caused his death, Kinney was engaging in conduct contrary to his employer's orders and was doing so for purely personal purposes, and that he was thus not performing service growing out of and incidental to his employment.

Evidence in the record, from sources whose credibility was not challenged by applicant and was not questioned by the administrative law judge in his consultation with the commission, led the commission to make a number of evidentiary findings of fact which underlie its finding of ultimate fact herein. The commission infers that Kinney (and Ekornaas) were users of illegal drugs, based on finding that both had cannabinoids in their blood and urine at the time of their deaths, that Kinney (and apparently Ekornaas as well) had asked station manager Thiel if he could get them cocaine, and that Kinney had told Thiel about having obtained cocaine from other sources. The commission further infers that Aiello was a dealer of illegal drugs, based on finding that Kinney admitted to Thiel that he had obtained cocaine from Aiello, that Aiello was known to an uninterested witness, Rizzo, to be dealing cocaine, and that Rizzo had previously bought drugs from Aiello. The station was known by Rizzo as a place he could go to buy drugs; he had in fact gone there to buy drugs from Aiello on December 2, 1986, less than a month before the murders.

Aiello had been seen with Hensley inside the station, on third shift, on a number of occasions in the fall of 1986. On December 2, 1986, when Rizzo went to the station to buy drugs from Aiello, Kinney and Ekornaas were there, and Rizzo saw Aiello sell "marijuana or something" to them at that time. When considered with the fact that Kinney told Thiel he had obtained cocaine from Aiello, this leads the commission to infer that Kinney had obtained illegal drugs from Aiello at the station. There was also tension between Kinney and Aiello about the fact that Kinney had not paid Aiello for some cocaine Kinney had obtained from him. Finally, on the very night of the murders, Aiello had been attempting to sell cocaine by contacting people over the telephone and offering such sales.

The commission also infers that Aiello and Hensley were voluntarily admitted into the station on the night of the murders. The door to the station had a lock, and according to the employer's requirements, which were known to Kinney, that door should have been locked well prior to the time that Aiello and Hensley came to the station. The door and its lock were still intact after the murder, and from this the commission infers that Aiello and Hensley did not gain entrance to the station by breaking in. Furthermore, the commission finds that the cashiers (such as Aiello) were not issued their own keys to the station, that only Thiel and Stemper had keys, and that the only other key was always left inside the station, hanging on the wall. This finding, which the commission makes on the basis of Thiel's direct and undisputed testimony to that effect, is considered highly credible by the commission because it makes so much sense. Employes of a business which was open 24 hours a day, seven days a week, would never need a key, and therefore it is reasonable to believe testimony that they were not issued such keys.

The commission infers further from this, that Aiello did not have his own key and thus could not have gotten into the station unless those inside unlocked the door and let him in. It thus disagrees with the contrary conclusion of the administrative law judge, who did not indicate to the commission that he questioned the credibility of Thiel (whose testimony he did observe) on the point, but who appears to have relied in this area solely on the written statement of Aiello (whose testimony he did not observe). The administrative law judge's finding of fact, that Aiello stated to the police "that he used his employe key to unlock the station door and gain entrance to the office," is also not an accurate reflection of the ambiguous description of the entry to the station in Aiello's statement to the police, and it stands in unexplained contrast with Aiello's subsequent straightforward confirmation of Thiel's testimony that there was a (i.e., one) station key, kept on a hook inside the station.

In the statements of Aiello and Hensley to the police and in the testimony of Hensley at his murder trial, the two agreed on a number of points which confirm or are consistent with the findings of fact just described: that there was some kind of drug debt owed to Aiello or Hensley which made them unhappy with Kinney or Ekornaas or both; that on the evening of December 30, 1986, they were making an effort to sell some cocaine; that they decided to go to the station both to try to sell some drugs and to then threaten Kinney and Ekornaas with weapons in an effort to collect on the debt; that prior to going, Aiello telephoned the station twice, at around 1:30 a.m. and again at around 2:30 a.m., first to see if the men at the station wanted to buy drugs and then to confirm that they were coming; that when they arrived at the station their weapons were concealed and Kinney and Ekornaas could not see them when Aiello and Hensley appeared outside and entered; that the station was locked when they arrived and had to be unlocked for them to gain admittance; that no weapons were displayed and no threats were made prior to the time that the exterior lights and pumps were turned off and both Kinney and Ekornaas went into the back room; and that the assault was then committed in the back room. Based not only on the evidence contained in the statements and testimony of Aiello and Hensley, but on the other evidence in the record with which it is consistent, the commission finds all of these things as fact.

It is on the basis of these findings of fact, including inferences from undisputed evidence, that the commission has concluded that at the time he suffered his fatal injuries, Kinney had voluntarily stepped out of the course of his employment, by voluntarily admitting Aiello and Hensley to the station and going into the back room with them, completely contrary to the rules and instructions of the employer, and for the purely personal purpose of engaging in an illegal drug transaction. He was thus not performing service growing out of and incidental to his employment, within the meaning of section 102.03 (1)(c)1., Stats., at the time of injury. There is therefore no liability for benefits.

NOW, THEREFORE, this

O R D E R

The application is dismissed.

Dated and mailed at Madison, Wisconsin November 12, 1993
ND � 3.8 � 3.10 � 8.28

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The commission consulted with the administrative law judge and provided him the opportunity to describe his personal impressions as to the credibility of the persons who testified before him in this matter. The administrative law judge indicated that it was his impression that Kinney was authorized to be on duty on the night in question. The commission agrees, and its decision is not premised to any extent on the theory that Kinney was not authorized to be performing services for the employer at the time of his injuries. The administrative law judge also indicated that it was his impression that neither Thiel nor Stemper knew who had responsibility for communicating to the employes the rule that off duty employes should not loiter at the station. Giving due consideration to this impression, the commission nevertheless considers the testimony of Thiel and Stemper taken together to warrant the inference that the employes (including Kinney) would have been aware of this rule. In any event, the more significant act of disobedience by Kinney was in allowing anyone into the station in the middle of the night, and abandoning the front of the station to go into the back room with the persons thus admitted. The administrative law judge said nothing to the commission which suggested that he had any impression that Thiel and Stemper were not credible in their testimony about the rule concerning locking the station on third shift. Finally, the administrative law judge indicated that it was his impression that Jake Drissel did not want to have anything to do with the hearing and that his recollection was questionable. The commission agrees; it was dubious about Drissel's testimony and does not rely on it.

Apart from this, no other statements of the administrative law judge to the commission in their consultation dealt with personal impressions as to the credibility of witnesses who testified before him. The administrative law judge thus raised no question as to the credibility of the testimony of Thiel and Stemper in respects other than those noted above. Particularly because Thiel no longer has any conceivable interest in the outcome of this proceeding (his employment at the station having ended long ago, and the station being out of business), the commission treats as credible both his undisputed testimony that Kinney had asked him if he could get them drugs and told him of hostility between himself and Aiello concerning a drug debt, and his testimony that cashiers were not assigned keys to the station and that the only key apart from his and Stemper's was kept inside the station.

The administrative law judge made certain conclusions about the weight that should be given to the statements of Aiello and Hensley to the police and the murder trial testimony of Hensley. While the commission has given these conclusions due consideration, it notes that they were not and could not have been based to any extent on personal impressions as to credibility based on observation of demeanor, because Aiello and Hensley did not testify before the administrative law judge. His evaluation was based on consideration of written evidence, and that same evidence is equally accessible to the commission.

One further statement by the administrative law judge concerning credibility needs comment. The administrative law judge stated that he found "the respondent's contentions that the applicant engaged in an illegal drug deal or that his assault was for purely private and personal reasons . . .not credible." Particularly in view of the comments of the administrative law judge in consultation with him, the commission is satisfied that this statement does not in fact reflect a credibility assessment, but rather expresses the administrative law judge's opinion on the persuasiveness of respondent's position in this case. Neither Stemper nor Thiel testified directly that they had actual personal knowledge "that the applicant engaged in an illegal drug deal or that his assault was for purely private or personal reasons." Rather, they and respondent's other witnesses each testified to a number of facts which they did have personal knowledge of. The entire extent of the administrative law judge's comments on what he found credible or not credible in their testimony is described above. The contentions that "the applicant engaged in an illegal drug deal or that his assault was for purely private and personal reasons" were not directly made in testimonial fashion by any witness who appeared before the administrative law judge and whose credibility he could assess by observation of demeanor. Rather, these were contentions made by respondent as a party (through its counsel), in the nature of a theory as to what should be inferred based on what all of the evidence tended to show. If the administrative law judge decided that this contention was not supported by the necessary weight of evidence, it was certainly appropriate for him to so note in his decision. However, it was not a demeanor-based credibility assessment for him to so decide, but rather an exercise of judgment in drawing inferences and weighing evidence against the standard represented by a burden of proof. The commission has arrived at a different assessment as to adequacy of the credible evidence when measured against the applicable burden.

Both the Wisconsin Work Injury Supplemental Benefit Fund ("State Fund") and Carlene Kinney objected through counsel to receipt of the statements of Aiello and Hensley and the murder trial testimony of Hensley on grounds of relevance and hearsay. The administrative law judge received those documents over their objections based on his conclusion that the evidence had probative value, although he noted that he would consider the hearsay nature of the evidence, and the fact that the statements were all that was available from Aiello and Hensley, in determining what weight to give that evidence. The commission agrees that this evidence was appropriately received notwithstanding the objections.

With respect to the relevance objection, the matter is quickly disposed of. The objection was that Aiello's and Hensley's purpose and motives in the assault were irrelevant to the question of whether the "positional risk" doctrine applied. Conceding this point for the sake of argument, it is itself irrelevant. Irrespective of the applicability of "positional risk," the facts about what Kinney was doing and why he was doing it were relevant to the question of whether he was in the "course of employment." The evidence was clearly relevant to this.

With respect to the hearsay objection, the commission initially notes that the statutory rules of evidence do not on their face apply to worker's compensation hearings, section 901.01, Stats., and the Worker's Compensation Division's administrative rules indicate that hearsay evidence may be admitted if it has probative value, Wis. Adm. Code Chapter 80.12 (1)(c). While the supreme court has recognized some restrictions on the use of hearsay in worker's compensation proceedings, it has not wholly imported the provisions of Chapter 908, Stats., into those proceedings, but has merely invoked the rule that hearsay not subject to a recognized exception should not be received over objection in an administrative hearing where direct testimony as to the same facts is obtainable. City of Superior v. DILHR, 84 Wis. 2d 663, 672, n. 6, 367 N.W.2d 637 (1978), citing Outagamie County v. Brooklyn, 18 Wis. 2d 303, 312, 118 N.W.2d 301 (1962).

There are thus three important considerations in deciding whether the evidence was admissible, as to all three of which the commission sees reasons that the evidence was properly admitted here. First, the evidence was admissible under the exceptions recognized in Section 908.045 (1) and (4), Stats., for prior testimony as a witness in another hearing, and statements against penal interest, where the witness is subsequently unavailable. Second, the direct testimony of Aiello and Hensley was not "obtainable" within the Outagamie County standard in that both were incarcerated in state prison facing multiple consecutive sentences well in excess of life, and even when they were subjected to deposition in prison they refused to testify. Third, there are equitable grounds for not entertaining the hearsay objections which were posed here. The refusal of Aeillo and Hensley to testify in their depositions was arguably induced by the conduct of counsel for Carlene Kinney and the State Fund in volunteering legal advice to them concerning their supposed right to decline to testify. That advice was erroneous, and entirely apart from its incorrectness, counsel had an obligation not to give any advice on that topic to the men.

The admissibility of the statements and testimony from Aiello and Hensley does not automatically determine the weight that evidence should be given. The commission has given serious consideration to the question of whether it ought to place reliance on the exculpatory statements of these convicted murderers when in legal contemplation it is a certainty by virtue of their convictions that they are false in material part. The problem is, that is also undoubtedly the case that some of what they said was true. There is really no question, for example, but that they both went to the station that night and both had a hand in the murder of Kinney and Ekornaas. The question is how to separate the wheat in their testimony from the chaff. A trier of fact is not obliged to reject all of a witnesses testimony because some of it is wilfully false. Nehls v. Nehls, 21 Wis. 2d 231, 237, 124 N.W.2d 18 (1963). In this case, the commission has noted a correspondence in the statements of Aiello and Hensley which appears in many cases to reflect accurate testimony about details which would probably not have been seen by either as bearing on their culpability and thus as not warranting dishonesty, and in other cases to reflect dishonesty no more creative than blaming the other person for something that in fact happened. Because of the corroborating evidence in the record from other witnesses, which tends at the very least to confirm Kinney's involvement in illegal drug transactions with Aiello and Hensley and a conflict about a drug debt, the commission gives some weight to the evidence in the statements and testimony of Aiello and Hensley.

The administrative law judge believed that it was appropriate to draw an adverse inference against Aiello and Hensley because of their refusal to testify at their depositions. The commission disagrees, and this disagreement is not premised merely on the fact (discussed above) that the refusal to testify was induced by the parties in whose favor the administrative law judge's adverse inference appears to have run. More fundamentally, the inference is unjustified. Failure of a party to present certain evidence may permit the drawing of an inference against that party that the evidence would be unfavorable to that party. Coney v. Milwaukee and S. T. Corporation, 8 Wis. 2d 520, 526, 94 N.W.2d 713 (1959). However, Aiello and Hensley were neither parties nor under any degree of control by a party. Therefore, no adverse inference can be drawn against respondent. It also makes no sense to say that an "adverse" inference will be drawn against a witness who has refused to testify, since the fact that the witness is not a party interested in the outcome means that it is not possible to determine that any particular inference would be "adverse" to that witnesses' interests in the matter--since they have no such interests. An inference that they would have lied had they testified is uninformative, since they did not testify, and therefore the nature of the lie is unknown. An inference that they would have testified inconsistently with their prior statements and testimony is also unsatisfactory, since it does not arise logically from any interest they would have in doing so.

Finally, the commission disagrees with the administrative law judge's reasoning, that Aiello and Hensley probably lied in describing a drug transaction because they would have realized that "admitting" a plan merely to commit a robbery would expose them to liability for the murders on a "party to a crime" basis. The administrative law judge appears to have reasoned that the men probably each picked a false "drug transaction" story so that they could claim innocence of any advance awareness that there was going to be a robbery involving violence or the threat of violence. However, neither man did claim this. The stories they both gave to police did involve knowledge prior to the visit to the station, that weapons were being brought and that there was a plan to display them in an effort to coerce the transfer of certain property. Thus, they admitted advance knowledge of a plan to engage in robbery. Adding a false story about a drug transaction would only have added to the jeopardy they were already in. This, and its consistency with the evidence from other sources that Kinney was involved in drug transactions with Aiello, also persuades the commission that the drug element of their story was not fabricated.

Because of the conclusion it has reached on the question of liability for death benefits in this matter, the commission does not reach the issue of whether Carlene Kinney was financially dependent so as to entitle her to any death benefits found due.

cc:
Carlene Kinney
Richard Briles Moriarty, Assistant Attorney General
Attorney Donald P OMeara
Attorney Walter Stern
Margaret OConnell

110 - CD5850

Appealed to Circuit Court. Affirmed September 19, 1994. Appealed to Court of Appeals. Affirmed October 18, 1995 (unpublished).

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]