Atkins v. Webcon

• Decision Date: 08 June 2018
• Docket Number: No. 113,117,113,117
• Citation: 419 P.3d 1
• Parties: Jesse J. ATKINS, Appellant, v. WEBCON and Kansas Building Industry Workers Compensation Fund, Appellees.
• Court: Kansas Supreme Court

419 P.3d 1

Jesse J. ATKINS, Appellant,

v. WEBCONandKansas Building Industry Workers Compensation Fund, Appellees.

No. 113,117

Supreme Court of Kansas.

Opinion filed June 8, 2018

Melinda G. Young, of Bretz & Young, of Hutchinson, argued the cause and was on the brief for appellant.

Roy T. Artman, general counsel, Kansas Building Industry Workers Compensation Fund, argued the cause and was on the brief for appellees.

The opinion of the court was delivered by Stegall, J.:

In the early morning hours of June 16, 2009, Jesse J. Atkins was walking from a bar to his hotel when he was hit by a drunk driver. He suffered catastrophic injuries. At the time, Atkins was a laborer working an out-of-town roofing job. Atkins sought workers compensation benefits, but the Workers Compensation Board denied compensation, finding Atkins' injuries did not arise out of and in the course of his employment. The Court of Appeals affirmed. We hold substantial evidence supports the Board's decision to deny benefits.

FACTUAL AND PROCEDURAL BACKGROUND

The relevant facts in this case are not in dispute. Atkins worked for Webcon, Inc. as a general laborer. Webcon was a Hutchinson-based commercial roofing company. It employed multiple work crews and contracted for both local and out-of-state jobs. Crew members were paid hourly and would receive a small bonus if they finished the job on time.

At the time of his injuries, Atkins was working on a crew that was reroofing a grain elevator in Enid, Oklahoma. Webcon expected it would take several months to complete the job. Atkins was considered part of Webcon's "core group" of laborers who were typically assigned to large or difficult projects. For this job, the crew would meet on Monday mornings at Webcon's premises, load into company trucks, and travel to Enid for the week. The crew returned to Hutchinson on Friday afternoons. They were paid while traveling between Hutchinson and Enid. Although crew members were ostensibly permitted to drive their personal vehicles to Enid, Webcon would not have reimbursed them for fuel or mileage. Not surprisingly, crew members never asked to drive their own vehicles.

While in Enid, the crew stayed at the Baymont Inn, which Webcon selected. Each room housed two crew members. Webcon paid for the room and all meals. Crew members also received an additional $25 payment for each night they stayed in Enid. Each work day around 6 or 7 a.m., the crew left the hotel in company trucks to travel to the worksite; they returned to the hotel around 6 or 7 p.m. Crew members were paid from the time they departed until they arrived back at the Baymont. Upon their return, crew members were no longer under Webcon's supervision and were free to do what they wished. Crew members were permitted to use the company trucks to run errands if they received permission from a foreman. However, they were not permitted to take a company truck to a bar.

Across the street from the Baymont was a Ramada Inn. Unlike the Baymont, the Ramada had a bar. It was common for crew members to walk to the Ramada after work to have drinks. On the evening of June 15, 2009, the crew returned from the worksite and grilled dinner together at the Baymont. After dinner, Atkins and a coworker, Nick Wittekind, walked to the Ramada to have drinks and play darts. Wittekind eventually left around 11:30 p.m. and walked back to the Baymont by himself. At 2:20 a.m., Atkins was walking alone back to the Baymont when he was struck by a vehicle driven by an intoxicated driver.

Atkins' injuries were severe. Doctors had to amputate his right leg, a finger, and a toe. In addition to extensive internal injuries, Atkins lost vision in his right eye and underwent several skin grafts. In October 2009, Atkins submitted an application for hearing with the Division of Workers Compensation of the Kansas Department of Labor. Following a preliminary hearing, an administrative law judge (ALJ) determined Atkins' injuries were the result of a hazard created by the conditions of his employment, namely his required travel to Enid. The ALJ ordered temporary total disability and directed Webcon to pay Atkins' medical treatment. The Board affirmed the ALJ's preliminary order, reasoning that once Atkins departed from Hutchinson in a company truck, he "assumed the duties of his job and the entire undertaking [was] an indivisible one."

In April 2014, the ALJ conducted a regular hearing. The ALJ ultimately concluded travel was an intrinsic part of Atkins' job and that Atkins "was injured as the result of traveling to Enid, Ok. to complete a work related errand." As such, it found Atkins' injuries arose out of and occurred in the course of his employment.

The Board reversed, disagreeing that travel was intrinsic to Atkins' work. Relying on a pair of Court of Appeals' opinions, the Board determined Atkins was a fixed-situs employee who was not at work at the time of his injuries. It concluded:

"Claimant was not at work in his employer's service at the time of his injury, nor did his injury arise out of the nature, conditions, obligations or incidents of his employment with respondent. Claimant's work day ended when he was delivered to the Baymont Inn. Claimant's time spent at the Ramada Inn bar had no connection to his employment. Respondent received no benefit from claimant spending time at a bar and walking back to his room at 2:25 in the morning. Claimant was not engaged in a custom of his employment or activity contemplated as work-related by respondent."

The Court of Appeals affirmed the Board's decision, and we granted Atkins' petition for review. Atkins v. Webcon , No. 113117, 2016 WL 299084 (Kan. App. 2016) (unpublished opinion).

ANALYSIS

The only contested issue is whether Atkins' injuries arose out of and in the course of his employment as defined by the Kansas Workers Compensation Act (KWCA), K.S.A. 44-501 et seq.

Standards of Review

Pursuant to the KWCA, the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., governs our review. See K.S.A. 2008 Supp. 44-556(a) (expressly adopting the KJRA as the means by which courts review Board actions). The KWCA further provides that "[s]uch review shall be upon questions of law." K.S.A. 2008 Supp. 44-556(a). We have stated numerous times that "[t]he determination of whether the Board's findings of fact are supported by substantial competent evidence is such a question of law." Titterington v. Brooke Insurance , 277 Kan. 888, 894, 89 P.3d 643 (2004) ; see Scott v. Hughes , 294 Kan. 403, 415, 275 P.3d 890 (2012) ( Scott II ); Mudd v. Neosho Memorial Regional Med. Center , 275 Kan. 187, 191, 62 P.3d 236 (2003) ; Griffin v. Dale Willey Pontiac-Cadillac-GMC Truck, Inc. , 268 Kan. 33, 34, 991 P.2d 406 (1999).

Indeed, while the interpretation or construction of the KWCA is a question of law, "once that interpretation or construction has occurred, the ultimate question of whether an accident arises out of and in the course of employment is a question of fact." Scott , 294 Kan. at 415, 275 P.3d 890 ; see Williams v. Petromark Drilling, 299 Kan. 792, 795, 326 P.3d 1057 (2014) ("If there was substantial competent evidence to support the Board's finding that the tire blowout occurred while [employee] was in the course and scope of his employment, ... then the Court of Appeals' limited role required it to affirm the Board."); Foos v. Terminix , 277 Kan. 687, 691, 89 P.3d 546 (2004) ("[W]hether there has been an accidental injury arising out of and in the course of employment is a question of fact, and its determination will not be disturbed by an appellate court where there is substantial evidence to sustain it."); Newman v. Bennett , 212 Kan. 562, Syl. ¶ 3, 512 P.2d 497 (1973) ("Whether an accident arises out of and in the course of the workman's employment depends upon the facts peculiar to the particular case."); Carter v. Alpha Kappa Lambda Fraternity, 197 Kan. 374, 376, 417 P.2d 137 (1966) ("The question of whether there has been an accidental injury arising out of and in the course of the employment is a question of fact and when determined by the district court the finding will not be disturbed by this court where there is substantial evidence to sustain it."); see also Graber v. Dillon Companies , 52 Kan. App. 2d 786, 798, 377 P.3d 1183 (2016).

Pursuant to K.S.A. 2017 Supp. 77-621(c)(7), a reviewing court shall grant relief only if "the agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole[.]" When reviewing an agency action under K.S.A. 2017 Supp. 77-621(c)(7), " ‘the appellate court is limited to ascertaining from the record if substantial competent evidence supports the agency findings .’ " Bd. of Cherokee County Comm'rs v. Kansas Racing & Gaming Comm'n , 306 Kan. 298, 326, 393 P.3d 601 (2017). " ‘Substantial competent evidence possesses both relevance and substance and provides a substantial basis of fact from which the issues can be reasonably determined.’ " In re Equalization Appeal of Wagner , 304 Kan. 587, 599, 372 P.3d 1226 (2016) ; see Kotnour v. City of Overland Park , 43 Kan. App. 2d 833, 837, 233 P.3d 299 (2010) ("Although [ K.S.A. 77-621 ] does not define the term ‘substantial evidence,’ case law has long stated that it is such evidence as a reasonable person might accept as being sufficient to support a conclusion.").

K.S.A. 2017 Supp. 77-621(d) dictates how to conduct such a review:

"For purposes of this section, ‘in light of the record as a whole’ means that the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77-620, and amendments thereto, cited by any party that supports such finding,

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