Larson v. Excel Indus., Inc., 122,471
| Decision Date | 12 March 2021 |
| Docket Number | No. 122,471,122,471 |
| Parties | Pamela LARSON, Surviving Spouse of Thomas Larson, Appellant, v. EXCEL INDUSTRIES, INC. and Trumbull Insurance Company, Appellees. |
| Court | Kansas Court of Appeals |
Terry J. Torline, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellant.
Bruce L. Wendel, of Law Offices of Steven G. Piland, of Overland Park, for appellees.
Before Arnold-Burger, C.J., Bruns and Powell, JJ.
Thomas Larson suffered a fatal heart attack after returning from an out-of-town business trip in November 2016. His widow, Pamela Larson, sought surviving spouse benefits, but the Kansas Workers Compensation Appeals Board determined she was not entitled to receive benefits due to what is commonly referred to as the heart amendment to the Workers Compensation Act, see K.S.A. 2020 Supp. 44-501(c)(1), because she failed to prove that Thomas' heart attack was caused by exertion beyond that usually required by his job. The Board declined to rule on Pamela's claim that Thomas' heart attack had been caused by external factors, finding all other issues moot.
Pamela now seeks judicial review of the Board's actions, arguing the Board: (1) incorrectly interpreted the heart amendment; (2) erred in finding she presented insufficient evidence to support her claim that Thomas' heart attack was caused by exertion beyond that usually required by his job; and (3) wrongly concluded her claim for benefits on the ground that external forces triggered her husband's heart attack was moot.
After a careful review of the record, we cannot agree with Pamela that the Board misinterpreted the heart amendment and that she presented sufficient evidence to support her claim that Thomas' heart attack was caused by exertion beyond that usually required by his job. However, Pamela's argument that the Board erred in declaring her external forces claim moot has merit because she has alleged sufficient facts which, if true, may support such a claim. Thus, we affirm in part, reverse in part, and remand with directions.
Thomas, at the time of his death, was 61 years old and employed by Excel Industries, Inc. as a senior quality engineer. According to his job description, Thomas was required to work between 8 a.m. and 5 p.m., but he usually worked from 7:30 a.m. to 4:30 p.m. Thomas' job duties required him to engage in domestic travel to address quality deficiencies impacting production.
In June 2016, Thomas was on a business trip in Chicago, and he took some time to attend a Chicago Cubs game. While at the game, he suffered a heart attack. As a result, Thomas was hospitalized for five weeks in Chicago and underwent surgery for the placement of a stent in his heart.
While in the hospital, Thomas' granddaughter, Amber Larson, visited him. During this visit, Thomas received a call from his boss, Jim Burke. Thomas informed Burke he no longer wanted to travel because he was worried about experiencing another medical emergency. Burke told Thomas he understood and would no longer require Thomas to travel for work. Amber stated Thomas told several family members he would no longer be required to travel for work.
Thomas subsequently returned to Wichita to continue his recovery. As the result of his heart attack, Thomas was prescribed multiple medications to reduce his risk of a sudden heart attack, including Atorvastatin, Clopidogrel, Lisinopril, Metformin, Metoprolol SUCC XL, Viagra, and aspirin—all to be taken daily. Thomas was seen by a cardiologist, Dr. Layne Reusser, in late August. Dr. Reusser cleared Thomas to return to work without restrictions on September 14, 2016.
Upon Thomas' return to work on September 20, 2016, Burke no longer worked at Excel, and Thomas was informed he was still required to travel domestically as part of his job. In November 2016, Thomas was asked to go on a supplier quality review trip to investigate Double H Manufacturing, a potential new supplier located in Rock Valley, Iowa. Thomas added a visit to another supplier to the trip, Clow Stamping, which was located in Merrifield, Minnesota. Pamela and Thomas' daughter, Katrina Dunn, testified Thomas was nervous about the trip.
Thomas' trip was from November 15 to November 17, 2016. Thomas booked the flights, reserved the hotel rooms, and reserved the rental cars. Thomas also scheduled the meeting times with Double H Manufacturing and Clow Stamping. Anani Lawson-Hetcheli, another Excel employee, went on the trip with Thomas. Lawson-Hetcheli and Thomas had gone on business trips together before.
On Tuesday, November 15, the pair worked in the office until noon, took the afternoon off, and left at 5:25 p.m. for a flight from Wichita to St. Louis and then changed planes to fly to Minneapolis. Thomas and Lawson-Hetcheli arrived in Minneapolis at 11:25 p.m. After landing, they took a shuttle to the hotel, arriving around midnight.
The next day, they rented their car from the airport around 8:30 a.m., and Thomas then drove the almost three hours to Clow Stamping in Merrifield for a two-and-a-half-hour tour of the facility. Afterwards, they then drove approximately six hours to Sioux Falls, South Dakota, where they stayed overnight.
On Thursday, November 17, Thomas and Lawson-Hetcheli left the hotel around 6 a.m. and drove to Double H Manufacturing in Rock Valley, an hour away. They were at the plant until 1 p.m., then drove back to the Sioux Falls airport, where they were scheduled to fly out at 5:25 p.m. Their flight was delayed and then canceled because of the weather. Thomas and Lawson-Hetcheli got hotel rooms to spend the night.
Thomas only brought enough prescription medication to last him through November 17. The poor weather continued overnight and into the next morning. Thomas wanted to leave for the airport by 5 a.m., but Lawson-Hetcheli convinced him to wait until 7:30 a.m.
Their flight was originally scheduled to leave Sioux Falls at 12:48 p.m. but was delayed multiple times until the passengers were able to board at 2:44 p.m. The flight landed in Denver where Thomas and Lawson-Hetcheli changed planes and flew to Wichita, landing at 10:15 p.m. Thomas wanted Lawson-Hetcheli to meet Pamela, so they waited by the baggage claim area. Thomas began to have difficulty speaking and trouble breathing, prompting Lawson-Hetcheli to get Thomas a wheelchair and call for help. Another passenger helped Thomas get oxygen and had him lie flat on the ground. EMS arrived, and Thomas was taken to the hospital. Thomas had suffered a second heart attack and died at the hospital the next day.
Pamela applied for surviving spouse benefits on January 23, 2017. Pamela contended that Thomas' death was caused by unusual exertion within the meaning of the heart amendment and, in the alternative, external forces precipitated the heart attack.
Lawson-Hetcheli testified the business trip was typical of their prior trips together and nothing unusual happened on the trip. He also testified that, throughout the trip, Thomas appeared fine and nothing gave him concern for Thomas' health.
Pamela retained two medical experts: Dr. John McMaster, a board-certified doctor in emergency medicine, and Dr. Reusser, Thomas' cardiologist. Dr. McMaster believed the long work hours, different job duties, increased stress and anxiety, and the absence of required medication related to the November 2016 trip were significant causative factors triggering Thomas' heart attack on November 18. Dr. McMaster admitted he did not know Thomas' job required out-of-town trips or how often he went on those trips. Dr. McMaster testified Thomas' preexisting conditions of high blood pressure, high cholesterol, and first heart attack could have contributed or triggered his second heart attack.
Dr. Reusser, board certified in cardiology, interventional cardiology, and internal medicine and who treated Thomas after his first heart attack, concurred with Dr. McMaster's diagnosis and agreed with his causation opinions. Dr. Reusser also admitted he was unaware of Thomas' job duties.
Excel retained Dr. Michael Farrar, a board-certified cardiologist, as a medical expert. Dr. Farrar noted Thomas' heart stent had remained open at his death, meaning it was not blocked and not the cause of his death. Dr. Farrar also testified someone who has already suffered a heart attack is at a greater risk for a second one and opined that the business trip factors of long hours, stress and anxiety, and lack of medication were not prevailing factors in the precipitation of Thomas' second heart attack and death. Dr. Farrar concluded the precipitating factors were Thomas' first heart attack, preexisting coronary artery disease, and left ventricular dysfunction. He also testified there was no evidence that missing one day of medication would have caused Thomas' heart attack.
On May 15, 2019, the administrative law judge (ALJ) denied Pamela's claim for benefits. Pamela then appealed to the Workers Compensation Appeals Board, which, on January 23, 2020, also denied her claim, finding the November 2016 trip was part of Thomas' usual work in the course of his regular employment. The Board declared all other issues moot.
Pamela timely seeks judicial review of the Board's actions.
Pamela argues the Board erred in three ways: (1) The Board incorrectly interpreted the meaning of the heart amendment; (2) substantial evidence did not support the Board's finding that Thomas was engaged in usual exertion; and (3) the Board erred when it declared Pamela's claim that Thomas' death was caused by external forces as moot.
Appeals from the Board are reviewed under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. See K.S.A. 2020 Supp. 44-556(a) ; Base v. Raytheon Aircraft Co. , 50 Kan. App. 2d 508, 520, 329 P.3d 540 (2014). Pamela bears the burden to prove the Board's actions were invalid. See K.S.A. 77-621(a)(1). The validity of agency action is determined in accordance with the judicial review...
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