Bennett v. Wichita Fence Co.

• Decision Date: 24 January 1992
• Docket Number: No. 66634,66634
• Citation: 824 P.2d 1001,16 Kan.App.2d 458
• Parties: Russell BENNETT, Appellant, v. WICHITA FENCE COMPANY, Travelers Insurance Company, and the Kansas Workers Compensation Fund, Appellees.
• Court: Kansas Court of Appeals

Page 1001

824 P.2d 1001

16 Kan.App.2d 458

Russell BENNETT, Appellant, v. WICHITA FENCE COMPANY, Travelers Insurance Company, and the Kansas Workers Compensation Fund, Appellees.

No. 66634.

Court of Appeals of Kansas.

Jan. 24, 1992.

Review Denied April 21, 1992.

Syllabus by the court

1. In order for an accidental injury to arise "out of" employment, there must be some causal connection between the accidental injury and the employment.

2. Where the injury is clearly attributable to a personal condition of the employee, and no other factors intervene to cause or contribute to the injury, no compensation award is allowed; but where the injury is the result of the concurrence of some preexisting personal condition and some hazard of employment, compensation is generally allowed.

3. In the present case, the fact that claimant was driving a company vehicle in the course of his employment subjected him to the additional risk of travel. This additional risk provided the necessary causal link between his injury and his employment, and compensation should have been allowed.

Gregory G. Lower, of Cassell & Lower, Wichita, for appellant.

Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, Wichita, for appellees Wichita Fence Co. and Travelers Ins. Co.

Cortland Q. Clotfelter, of Joseph, Robison & Anderson, P.A., Wichita, for appellee Kansas Workers Compensation Fund.

Before BRISCOE, C.J., and ELLIOTT and LARSON, JJ.

ELLIOTT, Judge:

Russell Bennett appeals a district court judgment denying his claim for workers compensation against his employer, Wichita Fence Company.

We reverse and remand.

The facts are essentially undisputed. Bennett was sent by his employer, in a company vehicle, to make a delivery. On the return trip, Bennett suffered an epileptic seizure, blacked out, and hit a tree. Wichita Fence was aware of Bennett's condition, having filed a "notice of handicapped employee" with the workers compensation director.

In the initial compensation hearing, the only disputed issue here pertinent was whether the injuries arose out of Bennett's employment. The administrative law judge answered in the affirmative, awarding Bennett temporary total disability benefits, and assessed the entire award against the Fund.

On review, the director ruled Bennett had failed to sustain his burden to establish the injury had arisen out of the employment. On further review, the district court affirmed the director's order, adopting the director's findings of fact and law contained in the director's order.

There is no dispute that the accident occurred and that injuries were sustained in the course of Bennett's employment. The sole question is whether the injury, following an epileptic seizure, arose out of Bennett's employment with Wichita Fence. See K.S.A.1991 Supp. 44-501(a).

To arise "out of" employment requires some causal connection between the accidental injury and the employment. Springston v. IML Freight, Inc., 10 Kan.App.2d 501, 502, 704 P.2d 394, rev. denied 238 Kan. 878 (1985). Whether an injury arises out of the worker's employment depends on the facts peculiar to the particular case. 10 Kan.App.2d at 502, 704 P.2d 394.

The director and the district court relied on Cox v. Refining Co., 108 Kan. 320, 195 P. 863 (1921). There, claimant, a ditch digger, left the ditch to get a drink of water. A short distance from the ditch (while on level ground), he suffered an epileptic seizure, blacked out, and fell on some hot pipes. 108 Kan. at 321, 195 P. 863. The claimant was denied compensation because the accident/injury did not arise out of his employment. 108 Kan. at 327, 195 P. 863.

But 70 years ago in Cox, our Supreme Court cited a Massachusetts case where compensation was allowed when an employee, while driving a wagon, had a seizure and fell from the wagon, fracturing his skull. Massachusetts allowed compensation. The Cox court noted the Massachusetts case was not wrongly decided, due to the increased risk to which the worker was exposed owing to the position in which he had to work. 108 Kan. at 325, 195 P. 863.

In 1921, our Supreme Court in Cox recognized and predicted what would become the generally accepted rule: Where an employment injury is clearly attributable to a personal (idiopathic) condition of the employee, and...