Bach v. Nat'l Beef Packing Co.

• Decision Date: 21 December 2012
• Docket Number: No. 107,681.,107,681.
• Citation: 291 P.3d 105
• Parties: Hoa T. BACH, Appellant, v. NATIONAL BEEF PACKING CO., and American Zurich Insurance Co., Appellees.
• Court: Kansas Court of Appeals

291 P.3d 105

Hoa T. BACH, Appellant,

v.NATIONAL BEEF PACKING CO., and American Zurich Insurance Co., Appellees.

No. 107,681.

Court of Appeals of Kansas.

Dec. 21, 2012.

Appeal from Workers Compensation Board.

Gary E. Patterson, of Patterson Legal Group, L.C., of Wichita, for appellant.

Kerry E. McQueen and Shirla R. McQueen, of Sharp McQueen, P.A., of Liberal, for appellees.

Before ARNOLD–BURGER, P.J., McANANY and LEBEN, JJ.

MEMORANDUM OPINION

PER CURIAM.

In this workers compensation appeal, Hoa T. Bach, an employee of National Beef Packing Co., L.P. (NBP), asks us to find error in the Workers Compensation Board's (Board) determination that she did not sustain a compensable injury in February 2009 when she was knocked over by a gust of wind while walking to the parking lot at the end of her work shift. She also asks us to declare that she is entitled to receive permanent total disability benefits without any offset for Social Security retirement benefits and other retirement benefits she had been receiving since 2005. Because we find no error in the Board's determination that Bach did not sustain a compensable injury, we need not reach her second issue.

Bach, age 68, weighted approximately 120 pounds. She worked the second shift at NBP's Liberal facility. Her shift ended at approximately 10 p.m. It was windy that evening, with winds of 25.5 miles per hour, gusting to 31.1 miles per hour. At about 9:55 p.m., the winds increased and were gusting between 52.9 and 64.4 miles per hour.

Bach's husband, son, and daughter-in-law also worked at NBP. At the end of her shift, Bach and her daughter-in-law waited in the cafeteria for her son to complete his work. When he finished at 10:25, Bach's son went to get his car and move it closer to the guard shack so that Bach would not have to walk too far. The guard shack was about 100 feet from the cafeteria door. Beyond the guard shack was an open area of about 40 to 50 feet to a rail fence and bike rack. Bach's son parked his car just beyond the rail fence. Bach's husband starting walking towards the car, with Bach and her daughter-in-law following. When Bach reached the area of the rail fence and bike rack, a gust of wind caught her and knocked her against the rail fence, causing her to fracture both shoulders. It is unclear whether Bach had gone past the fence and was in the parking lot when the wind knocked her into the fence. In either event, the accident happened on property owned and controlled by NBP.

Bach had surgery on both shoulders and has not returned to work.

The administrative law judge (ALJ) made a preliminary order awarding compensation. The Board reviewed the preliminary order and ruled that Bach's injuries did not arise out of her employment because the weather was an intervening factor. The ALJ then reversed her preliminary finding and denied compensation benefits. Upon review, the Board discussed the going and coming rule found in K.S.A.2008 Supp. 44–508(f) and noted that the rule, which generally excludes liability for injuries suffered while going to or coming from work, does not apply while the employee is at the employer's premises. Thus, an employer is liable for benefits once the employee has arrived for work and until the employee leaves the employer's premises at the end of the work day. But the Board found an exception to this “premises” exception: when the accidental injuries are caused by weather. With reference to the high winds that caused Bach's fall, the Board stated:

“In this instance, claimant's employment did not place her in a situation where she was at greater risk than the general public in that vicinity.... This claimant would have been equally exposed to the wind had she been walking in the parking lot of a local grocery store or at home plus claimant had the option to remain inside the plant if she wanted. Thus, claimant was subjected to the same risk or hazard as was the general public in that vicinity.”

Bach's appeal brought the matter before us. She claims that NBP's premises contributed both to the accident and to the severity of the injury. She criticizes the Board's theory that she was not subjected to any hazard from the wind greater than the hazard experienced by the general public. Further, she claims that the activity that resulted in her injury was connected to, and inherent in, the performance of her job. Relying on Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 257 P.3d 255 (2011), she argues that her injury was compensable because it occurred on NBP's premises while she was leaving work.

We have unlimited review over the construction and application of statutes. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006). In construing statutes we owe no significant deference to the ALJ's or the Board's interpretation or construction. Fort Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs, 290 Kan. 446, 457, 228 P.3d 403 (2010). We also have unlimited review over whether an injury is compensable. Bryant, 292 Kan. at 587. But whether an injury arose out of and in the course of employment is a question of fact. Scott v. Hughes, 294 Kan. 403, 415–16, 275 P.3d 890 (2012).

Bach had the burden to prove her right to an award of compensation under the Workers Compensation Act. K.S.A.2008 Supp. 44–501(a); Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 819–20, 104 P.3d 378 (2005). Most of the facts surrounding Bach's injury are undisputed. We review de novo whether the Board erroneously applied the law to those undisputed facts. Tyler v. Goodyear Tire & Rubber Co., 43 Kan.App.2d 386, 388, 224 P.3d 1197 (2010). With respect to any controverted facts, we review the Board's factual determinations to see if they are “supported by evidence that is substantial when viewed in light of the record as a whole.” See K.S.A.2011 Supp. 77–621(c)(7), (d); Casco v. Armour Swift–Eckrich, 283 Kan. 508, 514, 154 P.3d 494 (2007).

K.S.A.2008 Supp. 44–501(a) imposes liability on the employer for workers compensation benefits for an employee's accidental injuries “arising out of and in the course of employment.” To arise out of employment requires a showing of a causal connection between the accidental injury and the conditions under which the work is required to be performed. To arise in the course of employment requires a showing that the injury happened while the worker was at work in the employer's service. Rinke v. Bank of America, 282 Kan. 746, 752, 148 P.3d 553 (2005). Both conditions must exist for a claim to be compensable. Kindel v. Ferco Rental, Inc., 258 Kan. 272, 278, 899 P.2d 1058 (1995).

Bach argues that NBP's premises contributed to the accident and the severity of her injuries. She claims the layout of NBP's plant affected the wind currents and her injuries were exacerbated by falling against the pipe rail fence.

Bach relies on the deposition testimony of George Hall, NBP's human resources director, and Dr. Terrance Pratt, an examining physician. Not surprisingly, Hall conceded, in essence, that wind currents blowing across the open prairie shift when they confront NBP's building. But NBP's building is not unique in this respect. The same phenomenon occurs when the wind strikes any stationary object. Bach fails to identify anything about the NBP building that would make it more dangerous than other buildings in a windstorm.

With respect to Dr. Pratt, he testified that he has seen shoulder injuries like those suffered by Bach before. Again not surprisingly, he conceded the obvious: that Bach's injury is usually associated with coming into contact with a hard object. He agreed that if Bach had not come into contact with a hard object, it is probable that she would not have sustained her injury. Granted, Bach may not have injured her shoulders had she landed on a feather bed, but in a world filled with hard surfaces, including the ground Bach walked on, she failed to demonstrate that there was something about the NBP premises that exacerbated her injuries that is not present virtually everywhere else.

Bach also relies on Baggett v. B & G Construction, 21 Kan.App.2d 347, 900 P.2d 867 (1995), for support. Baggett was on the jobsite measuring for a stairway. He was pushed by another employee who wanted Baggett to repay money he had borrowed. Baggett turned to see who pushed him. In doing so, he backed up a few steps and fell 12 feet into a hole, landing on the concrete floor of the basement. The court found a compensable injury, stating: “Baggett would not have sustained a serious head injury and broken clavicle during a pushing match had he not been on the job site, which contained an open hole.” 21 Kan.App.2d at 350.

Baggett involved a condition peculiar to the job site. Our case does not. There is no evidence that the wind that struck Bach originated and then dissipated within the perimeter of NBP's property. We cannot state, as the court in Baggett could, that the employee would not have suffered the injury if the employee had been somewhere other than on the job site. In Baggett, the employer contended that the accident did not arise out of Baggett's employment. As noted earlier, K.S.A.2008 Supp. 44–501(a) requires a showing that the accidental injuries arose out of employment by establishing a causal connection between the accidental injury and the conditions under which the work is required to be performed. See Rinke, 282 Kan. at 752. There was a physical condition at Baggett's work site, an unguarded hole, that existed there and only there. Bach was not exposed to any comparable physical condition at her work site to which she was not be exposed off the work site.

Bach contends that under the “going and coming” rule found in K . S.A.2008 Supp. 44–508(f), she is not considered to have left her work duties when she is still on her employer's premises. She concludes that she is entitled to benefits based solely on the fact that she suffered her injury on NBP's premises.

The...