Bryant v. Midwest Staff Solutions Inc.

• Court: Kansas Supreme Court
• Writing for the Court: The opinion of the court was delivered by ROSEN, J.:
• Citation: Bryant v. Midwest Staff Solutions Inc., 292 Kan. 585, 257 P.3d 255 (Kan. 2011)
• Decision Date: 29 July 2011
• Docket Number: No. 99,913.,99,913.
• Parties: James BRYANT, Appellee,v.MIDWEST STAFF SOLUTIONS, INC., and Lumberman's Underwriting Alliance, Appellants.

292 Kan. 585

257 P.3d 255

James BRYANT, Appellee,

v.MIDWEST STAFF SOLUTIONS, INC., and Lumberman's Underwriting Alliance, Appellants.

No. 99,913.

Supreme Court of Kansas.

July 29, 2011.

[257 P.3d 256 , 292 Kan. 585]

Syllabus by the Court

1. Whether an injury is compensable is a question over which an appellate court exercises unlimited review.

2. An accidental injury is compensable even if it only aggravates or accelerates an existing disease or intensifies the condition.

3. In order to be compensable, an injury must both arise out of and arise in the course of employment.

4. In determining whether an injury arose out of the course of employment, the focus of inquiry is on whether the activity that resulted in the injury was connected to, or was inherent in, the performance of the job.

J. Scott Gordon, of Long, Luder & Gordon, P.A., of Overland Park, argued the cause, and Kimberlee K. Conard, of the same firm, was with him on the briefs for appellants.John J. Bryan, of Bryan, Lykins, Hejtmanek & Fincher, P.A., of Topeka, argued the cause and was on the briefs for appellee.

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

On review of an unpublished opinion by the Court of Appeals, Bryant v. Midwest Staff Solutions, Inc., No. 99,913, ––– Kan.App.2d ––––, 2009 WL 744160, unpublished opinion filed March 13, 2009, claimant James Bryant asks this court to affirm the administrative finding that he was entitled to workers compensation benefits and to reverse the Court of Appeals finding that his injuries were the result of normal activities of daily living and therefore noncompensable.

James Bryant is now approximately 38 years old. In August 1997, he suffered a back injury while jumping from a boat onto a dock. He had a lumbar spine diskectomy on October 15, 1998. While the surgery helped, he experienced ongoing lower-back pain, for which different treatments were prescribed.

Bryant began working as a service technician for Shawnee Heating and Cooling/Midwest Staff Solutions through respondent Axiom HR Solutions, Inc., in 2001. While working there, he missed a number of days of work due to persistent back pain.

On March 2, 2003, Bryant was working on a service call. He stooped over to grab a tool out of his tool bag, and when he twisted back to work on the equipment, he felt a “pop” or a “snap.” He experienced a sudden, severe increase of pain in his lower back. The symptoms became significantly worse the following day.

He nevertheless returned to work, but on May 13, 2003, while he was working on an air conditioner installation, he stooped down or tried to lean over to carry out some welding and felt an explosive increase in pain. He then consulted various medical doctors, who eventually recommended surgery to carry out a multi-level fusion. The surgery was performed on September 23, 2003. Following about 6 months of progressive physical therapy, he was discharged from further care in the spring of 2004. He returned to work as a dispatcher in March 2004, but his wages were lowered from $22 to $20 per hour, and his working hours were also reduced.

Bryant voluntarily resigned from his job as a dispatcher in November 2005, having accepted other employment that promised him more hours, advancement, and specialized training in distribution. He subsequently voluntarily resigned from that job because the promised opportunities did not materialize.

On May 19, 2003, Bryant filed an application for a hearing with the Division of Workers Compensation. The administrative law judge (ALJ) found that Bryant was injured in the course of his employment and entered an award totaling $65,966.40. On review, the Kansas Workers Compensation Board (Board) issued an order affirming the finding of entitlement to compensation and modifying the compensation to a total award of $68,882.40. One Board member dissented, disagreeing with the manner in which insurance benefits were included in the post injury wage calculations. Midwest took a timely appeal to the Kansas Court of Appeals.

The Court of Appeals reversed the ALJ and the Board, finding that Bryant was precluded from compensation because his injuries were the result of the “normal activities of daily living.” Bryant, slip op. at 14. The Court of Appeals did not address Midwest's other issues. This court granted Bryant's petition for review.

The Court of Appeals concluded that the record did not contain substantial competent evidence to support the Board's finding that Bryant suffered an injury under K.S.A. 2009 Supp. 44–508(e), because the acts of “stooping” and “leaning” were normal activities of daily living. Slip op. at 14.

Standard of Review

Whether an injury is compensable is a question over which an appellate court exercises unlimited review. Coleman v. Armour Swift–Eckrich, 281 Kan. 381, 383, 130 P.3d 111 (2006).

When issues of statutory interpretation arise, the appellate court is presented with a question of law over which it has unlimited review. Pruter v. Larned State Hospital, 271 Kan. 865, 868, 26 P.3d 666 (2001). This court exercises unlimited review over questions involving the interpretation or construction of a statute and owes “no significant deference” to the ALJ's or the Board's interpretation or construction. Higgins v. Abilene Machine, Inc., 288 Kan. 359, 361, 204 P.3d 1156 (2009).

An appellate court's review of questions of fact in a workers compensation appeal is limited to whether, when reviewing the record as a whole, the Board's findings of fact are supported by substantial evidence, which is a question of law. K.S.A. 2010 Supp. 77–621(c)(7); Casco v. Armour Swift–Eckrich, 283 Kan. 508, 514, 154 P.3d 494 (2007). In reviewing the evidence, the court does not reweigh the evidence or engage in de novo review. K.S.A. 2010 Supp. 77–621(d).

Analysis

As a preliminary matter, we note that during the 2010 legislative session the Kansas Legislature passed and the Governor signed into law significant changes to the Kansas Workers Compensation Act. See Substitute for H.B. 2134, effective May 15, 2011. These changes included the addition of a requirement that an accident or cumulative trauma be the prevailing factor in causing a compensable injury, medical condition, or resulting impairment. The new law also introduces several exclusions from compensability, including “triggering or precipitating events” and “aggravations, accelerations, or exacerbations of a preexisting condition.” The amended statute removes any reference to disabilities resulting from the “normal activities of day-to-day living,” although it addresses situations when employment increases risks or hazards to which workers would not have been exposed “in normal non-employment life.” Substitute for H.B. 2134, sec. 5.

Despite these modifications, the statutory scheme in place when Bryant was injured and filed his claim continues to control in this case.

As a general rule, a statute operates prospectively in the absence of clear statutory language that the legislature intended it to operate retroactively. Owen Lumber Co. v. Chartrand, 276 Kan. 218, 220, 73 P.3d 753 (2003). Even if the legislature expressly states that a statute will apply retroactively, vested or substantive rights are immune from retrospective statutory application. Substantive rights include rights of action “for injuries suffered in person.” Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 667, 831 P.2d 958 (1992) (citing the Kansas Constitution Bill of Rights, § 18). The retroactive application of laws that adversely affect substantive rights violates a claimant's constitutional rights, because it constitutes a taking of property without due process of law. Rios v. Board of Public Utilities of Kansas City, 256 Kan. 184, 190, 883 P.2d 1177 (1994).

Nothing in the language of the Substitute for H.B. 2134 suggests that the legislature intended that the sections relevant to the present case be applied retroactively. In fact, the legislature singled out one section, new K.S.A. 44–529(c), for retroactive application and was silent about the application of the remainder of the statutory amendments. In addition, Bryant has a vested right to seek compensation for his injury, and retroactive application would violate due process.

We therefore analyze the issues in this case under the statutory scheme in place when Bryant incurred his injury.

The respondents made two arguments that Bryant's injury did not arise out of and in the course of his employment, as required for compensation under the Workers Compensation Act (Act). First, Bryant failed to prove that the events of March 2, 2003, and May 13, 2003, constituted injuries, because he already suffered from back pain and the work incidents did not change his condition—they simply intensified it. The second argument, which the Court of Appeals found controlling, was that any injury that Bryant sustained on the job was the result of the normal activities of day-to-day living.

The first contention, while argued at some length by the respondents, carries little force. The record contains credible testimony that the March 2, 2003, incident changed the physical structure of Bryant's body, causing damage or harm to it. Dr. Vito Carabetta, an independent medical examiner, testified that the incident was an instigating event that changed Bryant's relatively stable back condition, which was controlled by intermittent treatment, into a condition that required surgery. Dr. Theodore Sandow also testified that the work incidents were the triggering events that led Bryant to needing surgery in 2003. Both doctors opined that Bryant suffered a 25 percent permanent partial functional impairment, of which only 10 percent preexisted the injury. Furthermore, Bryant himself testified that his pain had been intermittent before March 2, 2003, but was continuous afterwards.

An accidental injury is compensable if it only aggravates or accelerates an existing disease or intensifies the...