Foos v. Terminix

Decision Date14 May 2004
Citation277 Kan. 687,89 P.3d 546
PartiesDENNIS FOOS, Appellee, v. TERMINIX and ZURICH AMERICA INSURANCE, CO., Appellants.
CourtKansas Supreme Court

Rex W. Henoch, of Dorothy & Henoch, L.L.C., of Lenexa, argued the cause and was on the briefs for appellant.

Roger D. Fincher, of Bryan, Lykins, Hejtmanek & Fincher, P.A., of Topeka, argued the cause, and Rachel Mackey, of Law Office of Rachel Mackey, of Topeka, was with him on the briefs for appellee.

The opinion of the court was delivered by

LUCKERT, J.:

This is a workers compensation case, applying K.S.A. 1999 Supp. 44-501. The Court of Appeals affirmed the Workers Compensation Board's (Board) determination that Dennis Foos sustained personal injury by accident arising out of and in the course of his employment. However, the Court of Appeals reversed the Board's award of benefits for Dennis Foos, applying the "intoxication exception" to providing benefits under the Workers Compensation Act, 44-501(d)(2). The Court of Appeals found that the Board erred in determining that the results of a blood test were inadmissible to prove Foos was impaired by alcohol. The Board had determined that the blood test lacked probable cause and its results were inadmissible pursuant to 44-501(d)(2). We granted Foos' petition for review under K.S.A. 20-3018(b).

Under Supreme Court Rule 8.03 (2003 Kan. Ct. R. Annot. 58), we choose to review both holdings of the Court of Appeals and consider whether: (1) Foos was acting within the course and scope of his employment at the time he incurred his injuries; and (2) Foos' blood test results were admissible to prove his alcohol impairment, which in turn contributed to his injuries.

We affirm the Court of Appeals, although as to the second holding we do so on different grounds, and reverse the Board's award of benefits to Foos.

Facts

Dennis Foos worked as a pest control technician for Terminix. His employer assigned him a vehicle to use on his route, which contained approximately 200 accounts. On Friday, May 2, 1997, Foos drove from his home in Solomon to the Terminix office in Topeka for a mandatory weekly meeting that began at 8 a.m. After the meeting, he drove to Manhattan to do work for some of his accounts. He worked at Varney's Bookstore from 10:30 to 10:45 a.m. and at the Children's Bookstore from 10:45 to 11:05 a.m.

Around 11 a.m., Foos entered a "hole-in-one" contest at the Wildcat Creek Sports Complex. He remembers leaving from there around noon to eat lunch at McDonald's but has no memories from that time until sometime on Sunday, May 4. Although he had planned to work at some fraternities in Manhattan the afternoon of May 2, those jobs were not performed.

Sometime between 7 and 7:30 p.m. on May 2, Foos' truck left the roadway and struck two guardrails while he was driving west-bound on Interstate 70 between Junction City and Abilene. His Solomon residence is west of Abilene on the interstate. He was thrown from the truck and suffered injuries, including head trauma sufficient to cause permanent severing of his olfactory nerves. He was taken by ambulance to Geary Community Hospital in Junction City where he was stabilized and given morphine. He was then transferred by helicopter to the University of Kansas Medical Center in Kansas City (KUMC). Foos arrived at KUMC at 11:04 p.m. KUMC medical personnel drew and tested his blood at 11:10 p.m. as part of their regular medical procedures. The tests revealed Foos' blood contained opiates and an alcohol concentration of .134.

KUMC personnel reported him to be oriented as to person, place, and time. After consenting to surgery at 12:50 a.m., as part of his preoperative history he reported to medical personnel at 1:10 a.m. that he had "cocaine 1 week ago/9 beers & shots tonight."

The Board made the following findings of fact concerning the blood test and its results:

"At that point [of the blood test] there had been no evidence or indication that claimant had used alcohol before the accident. There was no mention of alcohol or the odor of alcohol in any of the records or the odor of alcohol in any of the records or reports by law enforcement, emergency medical, nor hospital personnel. The first indication of alcohol use came at approximately 1:10 a.m. on May 3, 1997, from claimant himself upon questioning by a nurse and an anesthesiologist for the pre-operative history and physical assessment. Neither the nurse nor the anesthesiologist that questioned claimant testified, but the KUMC Pre-Operative History and Physical Assessment form indicates that claimant reported `cocaine 1 week ago/9 beers & shots tonight.'"

The administrative law judge (ALJ) held that the test results were admissible under 44-501(d)(2) and denied Foos benefits because his alcohol use contributed to his injuries. He did not reach the parties' other arguments. The Board reversed the ALJ and awarded Foos benefits after rejecting Terminix's three main arguments. The Board first found that despite Foos' deviation from work, he had resumed that work because he was on the highway leading home at the time of the accident. It next excluded the blood test results because Terminix failed to meet the admissibility conditions of K.S.A. 1999 Supp. 44-501(d)(2). Finally, it found that without the blood test evidence, Terminix failed to prove drug or alcohol impairment which contributed to Foos' injuries.

The Court of Appeals determined the threshold issue in Foos' favor, i.e., substantial competent evidence supported the Board's finding that Foos had returned from his deviation from his employment at the time of the accident. It allowed the test results, however, under a "normal course of medical treatment" theory, leading it to conclude Terminix had established that Foos was impaired by alcohol at the time of his accident, that his impairment contributed to his injuries, and that he was not entitled to benefits. It therefore did not reach the third issue, i.e., whether Terminix proved alcohol impairment and its contribution to the injuries through nontest evidence.

Was Foos Acting Within the Course and Scope of His Employment At the Time He Incurred His Injuries?

Before the Court of Appeals, Terminix argued as a threshold matter that the Board erred in finding Foos sustained personal injury by accident arising out of the course and scope of his employment under 44-501(a). It specifically argued that Foos had deviated from his employment after leaving the Children's Bookstore account and had not returned to his employment at the time of the accident. If Terminix is correct, the other two issues are moot. We agree, however, with the Court of Appeals' rejection of this argument.

As the court stated:

"The Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq., provides the grounds upon which relief may be granted in appeals of workers compensation awards entered on or after October 1, 1993. See K.S.A. 2001 Supp. 44-556(a).
`The court shall grant relief only if it determines any one or more of the following:
. . . .
`(4) the agency has erroneously interpreted or applied the law;
. . . .
`(7) the agency action is based upon a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole. . . .' K.S.A. 77-621(c)." 31 Kan. App. 2d at 524-25.

The court correctly observed that whether 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, citing Harris v. Bethany Medical Center, 21 Kan. App. 2d 804, Syl. ¶ 1, 909 P.2d 657 (1995). It also correctly observed that although there was no direct evidence as to Foos' destination at the time of the accident, it was the duty of the ALJ and Board to determine "whether Foos had returned to his employment once he was on a direct route home." 31 Kan. App. 2d at 528.

The court correctly held that substantial competent evidence existed to support the finding that, even if Foos had deviated from his employment for a substantial period of time, he had returned to his employment once he was on the direct route back to his home in Solomon because at the time of his injury Foos was "engaging in an activity contemplated by Terminix while traveling on a public interstate highway." 31 Kan. App. 2d at 528; see also Kindel v. Ferco Rental, Inc., 258 Kan. 272, 899 P.2d 1058 (1995) (substantial evidence supported the Board's conclusion that claimant's death occurred in the course of his employment, despite the fact that he spent 4 hours at a strip club, when his death occurred after resuming the route home).

Were Foos' Blood Test Results Admissible to Prove His Impairment Due to Alcohol Which in Turn Contributed to His Injuries?

Terminix argues the Court of Appeals correctly held that Foos' blood test results were admissible to prove his use or consumption of alcohol impaired him and contributed to his injuries, as provided in 44-501(d)(2). Foos responds that Terminix failed to meet the statute's conditions to allow admission of the test results into evidence.

Our analysis requires us to interpret the statute. As we stated in In re Tax Appeal of Harbour Brothers Constr. Co., 256 Kan. 216, 221, 883 P.2d 1194 (1994):

"Interpretation of a statute is a question of law. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). Special rules apply, however, when considering whether an administrative agency `erroneously interpreted or applied the law':
`The interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to judicial deference. This deference is sometimes called the doctrine of operative construction. . . . [I]f there is a rational basis for the agency's interpretation, it should be upheld on judicial review. . . .
...

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