Graff v. Trans World Airlines

• Court: Kansas Supreme Court
• Writing for the Court: ALLEGRUCCI, J.
• Citation: Graff v. Trans World Airlines, 267 Kan. 854, 983 P.2d 258 (Kan. 1999)
• Decision Date: 16 July 1999
• Docket Number: No. 82,148.,82,148.
• Parties: SHIRLEY GRAFF, Appellant, v. TRANS WORLD AIRLINES, Appellee.

267 Kan. 854

983 P.2d 258

SHIRLEY GRAFF, Appellant, v. TRANS WORLD AIRLINES, Appellee.

No. 82,148.

Supreme Court of Kansas.

Opinion filed July 16, 1999.

B. Joyce Yeager, of Yeager Law Firm, L.L.C., of Prairie Village, argued the cause, and Michael L. Hodges, of Law Offices of Michael L. Hodges, of Lenexa, was with her on the briefs for appellant.

Thomas V. Clinkenbeard, of Evans & Dixon, of Kansas City, Missouri, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

Shirley Graff appeals from the decision of the Workers Compensation Board (Board) which overturned the administrative law judge's (ALJ) award and denied benefits. Graff was a flight attendant. The basis for her claim was that she suffered from carpal tunnel syndrome as a result of work activities performed in the airspace over Kansas, among other places. The appeal was transferred from the Court of Appeals on this court's motion, pursuant to K.S.A. 20-3018(c).

The Board made the following findings of fact and conclusions of law "Findings of Fact and Conclusions of Law

"After reviewing the record and considering the arguments by the parties, the Appeals Board concludes the Award by the ALJ should be reversed and benefits denied. The Board concludes claimant has not proven she suffered accidental injury in Kansas and the Kansas Act, therefore, does not apply. Because of the possibility this decision will be appealed, the Board has also made findings on the other issues raised.

"Findings of Fact

"1. Claimant worked for respondent as a flight attendant from July 1966 through November 1991.

"2. The Board also finds claimant developed bilateral carpal tunnel syndrome which was caused, aggravated or accelerated by her work activities as an airline hostess, including the beverage service, handing out trays, and pushing the beverage cart. This point does not appear to be in dispute and this conclusion is supported by the testimony of Dr. Cameron D. Jones, the only physician to testify in this case.

"3. Claimant alleges that during 1991 she developed carpal tunnel syndrome from her work activities and further alleges that a portion of those activities were performed while flying over Kansas. The evidence establishes that during 1991 claimant flew from St. Louis to Palm Springs, St. Louis to Salt Lake City, St. Louis to Honolulu, and St. Louis to Los Angeles and San Francisco. She also flew from Chicago to San Antonio and St. Louis to Phoenix. Because these flights follow a variety of alternate routes, any given flight may or may not cross over Kansas. As a result, claimant cannot state which flights went over Kansas, how long the flights were over Kansas, what activities she engaged in during any specific flight, or what specific activities she engaged in over Kansas. Nevertheless, the Board finds that the evidence establishes by more probably than not claimant did fly over Kansas during 1991, and did, while flying over Kansas, engage, at least some, in the type of activities which caused, aggravated, or accelerated her carpal tunnel syndrome.

"4. The flights on which claimant flew did not at any time during 1991 take off from or land in Kansas. Claimant is not a resident of Kansas. Claimant's contract of employment was not entered in Kansas and claimant's principal place of employment was not in Kansas.

"5. As of December 2, 1991, claimant retired from her employment with respondent. Her last day of work was November 30, 1991, the date the Board finds to be the date of accident.

"6. Although claimant apparently thought the restrictions recommended by Dr. Jones would prevent her from doing her job with respondent, Dr. Jones testified he did not intend the restrictions to prevent her from returning to work. Claimant did not advise respondent she was leaving because of her injury and respondent did not, at any time, advise her she could not return to work.

"7. Claimant has not looked for work since leaving her job with respondent.

"Conclusions of Law

"1. The Kansas Workers Compensation Act applies to injuries arising out of and in the course of employment in Kansas. K.S.A. 44-505.

"2. The Board finds claimant has not proven she suffered accidental injury in Kansas. The Board does not consider the thin and uncertain connection between claimant's injuries and the state of Kansas sufficient to establish accidental injury in Kansas. K.S.A. 44-501.

"3. Since the accident did not occur in Kansas, claimant's contract of employment was not in Kansas, and claimant's principal place of employment was not in Kansas, the Kansas Workers Compensation Act does not apply and benefits must be denied. K.S.A. 44-505 and K.S.A. 44-506.

"4. K.S.A. 44-506 excludes activities so involved in interstate commerce as not to be subject to the legislative power of this state. This exclusion has been applied only where the federal law provides an exclusive remedy as it does in the case of railroad employees covered by the federal employer's liability act. [Krouse] v. Lowden, 153 Kan. 181, 109 P.2d 138 (1941).

"5. If the accident in this case had occurred in Kansas, Application of the Kansas Act to the injury in this case would not violate full faith and credit provisions of the United States Constitution. In support of the argument that application of the Kansas Act to the facts of this case would be unconstitutional, claimant cites several federal court decisions which consider the full faith and credit provision[s] of the U.S. Constitution. The Board has reviewed those decisions and concludes that application of a state workers compensation act to a claim involving an injury which occurred within the state is not considered to contravene requirements of the United States Constitution. Pacific Employers Insurance Co. v. Industrial Accident Comm'n, 306 U.S. 493 (1939).

"6. Even if the accident occurred in Kansas, claimant would not be entitled to a work disability and benefits would be based on the stipulated 7.5 percent functional impairment. In support of an award of work disability, the ALJ cites Brown v. City of Wichita, 17 Kan. App.2d 72, 832 P.2d 365, rev. denied 251 Kan. 937 (1992). The Court of Appeals there held that retirement does not preclude an award of work disability. But the Board considers the circumstances in this case to be significantly different. Here the record does not support a conclusion that claimant could not have returned to work for respondent at a comparable wage. Dr. Jones, one of the treating physicians, testified he did not intend for his restrictions to permanently prevent claimant from returning to her job. Claimant left employment for respondent without giving her injury as a reason. Respondent did not prevent claimant from returning to her previous work and respondent did not have an opportunity to provide accommodated work if, indeed, accommodations were required. Although retirement may not prevent an award of work disability, retirement should not be used to create a work disability. The Board, therefore, concludes claimant's award would be limited to the stipulated functional impairment of 7.5 percent."

One member of the Board dissented from the majority decision because he believed that Graff had established injury in Kansas. The dissenting member wrote:

"The Kansas Workers Compensation Act is to be liberally construed to bring employers and employees within its provisions. Dr. Jones related claimant's carpal tunnel syndrome condition to her work activities as an airline hostess. The record establishes that a substantial number of claimant's flights went over Kansas and that she engaged in those same work activities that caused or aggravated her condition while flying over Kansas. The airspace over Kansas is part of Kansas. It follows, therefore, that claimant's accident occurred, at least in part, in Kansas. With certain exceptions, the Kansas Workers Compensation Act generally applies to injuries occurring within this state. Granted, there are other states to which claimant's employment has greater contact, and those states may have a greater interest in this claim. But the jurisdictional test for applying the Kansas Workers Compensation Act is not which state has the greatest interest in the claim. Instead, the test is whether claimant has proven it is more probably true than not true that she sustained injury by accident that arose out of and in the course of her employment within this state. She has proven this and the Kansas Act applies to her claim."

The Board's decision that Graff's sustaining injury in Kansas airspace was not compensable under the Workers Compensation Act (Act) is a matter of law that may be reviewed by this court pursuant to K.S.A. 1998 Supp. 44-556(a). The Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq., provides that a reviewing court shall grant relief if it determines that the agency has erroneously interpreted or applied the law. K.S.A. 77-621(c).

K.S.A. 1998 Supp. 44-505(a) provides in part that "[s]ubject to the provisions of K.S.A. 44-506 and amendments thereto, the workers compensation act shall apply to all employments wherein employers employ employees within this state." It is Graff's position that Trans World Airlines (TWA) employed her within this state. The provisions of the Act are to be liberally construed for the purpose of bringing employers and employees within its provisions to provide protection of the Act to both. K.S.A. 1998 Supp. 44-501(g).

Graff first argues that the Board's findings of fact and conclusions of law are inconsistent. In particular, she contrasts the Board's finding that her "evidence establishes by more probably than not claimant did fly over Kansas during 1991, and did, while flying over Kansas, engage, at least some, in the type of activities which caused, aggravated, or accelerated her carpal tunnel syndrome," with the Board's conclusion that "claimant has...