Moore v. Venture Corp.
| Decision Date | 30 January 2015 |
| Docket Number | 110,883. |
| Citation | 51 Kan.App.2d 132,343 P.3d 114 |
| Parties | Shawn MOORE, Appellee, v. VENTURE CORPORATION and Travelers Indemnity Co., Appellants. |
| Court | Kansas Court of Appeals |
Vincent A. Burnett and Dallas L. Rakestraw, of McDonald Tinker, of Wichita, for appellants.
Melinda G. Young, of Bretz & Young, of Hutchinson, for appellee.
Before BUSER, P.J., LEBEN and STANDRIDGE, JJ.
Shawn Moore injured his knee at his road-construction job, either when he stepped off a backhoe or shortly thereafter when walking around the backhoe. An administrative law judge denied his request for workers compensation, finding that his injury was the result of walking, which she considered a normal activity of day-to-day living not covered by the Workers Compensation Act. The Workers Compensation Appeals Board reversed, finding that Moore's injury arose out of and in the course of his employment because stepping down and walking around the backhoe were part of a single job task—operating a backhoe—that was not a normal activity of day-to-day living.
On appeal, we look at the overall context of the injury and see if the activity that resulted in it was connected to or inherent in performing the job. See Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 596, 257 P.3d 255 (2011). Here we find that substantial evidence supported the Board's finding. In this case, operating the backhoe was Moore's job duty, stepping down from and walking around the backhoe was part of the work required to operate the backhoe, and no evidence suggested that Moore's injury happened outside the time frame in which he was operating the backhoe. We therefore affirm the Board's decision that Moore's injury was covered under the Workers Compensation Act and not the result of a normal activity of day-to-day living.
Moore worked for Venture Corporation as an equipment operator, running equipment like pavers and backhoes for road construction. Moore spent his workday “[d]igging holes, smoothing stuff out, [and] laying asphalt” and was “in and out of” equipment all day.
On October 15, 2011, Moore experienced pain in his right knee while at work. He had not previously had any problems with his knee. Doctors later discovered that he had a torn right meniscus and a torn anterior-cruciate ligament (ACL). Dr. Erik Severud surgically repaired Moore's torn ACL in December 2011.
The parties' arguments are based in part on the statements Moore gave over time about what happened. Later the same month that the events took place, he told Rachel Pratt, a claims adjuster with Travelers Insurance (Venture Corporation's insurance carrier), that he had twisted his knee while walking around a backhoe:
At a hearing before an administrative law judge on March 11, 2013, Moore said that his knee had popped as he stepped down off the backhoe:
The step on the backhoe was about a foot or a foot and a half from the ground.
The parties also rely on statements by medical personnel who treated or examined Moore. On October 17, 2011, Moore saw physician's assistant Phillip Barnes, who worked under Dr. Nathan Knackstedt. Barnes' treatment notes describe the cause of the injury:
Travelers Insurance denied Moore's claim.
Under the present version of the Workers Compensation Act, an accidental injury is generally covered only if the accident was “the prevailing factor” causing the injury. See K.S.A.2013 Supp. 44–508(f)(2)(B)(ii). Accordingly, the medical opinions of various doctors addressed whether Moore's knee injury was primarily caused by an on-the-job accident.
On December 8, 2011, attorneys representing Venture Corporation and Travelers Insurance sent Dr. Knackstedt—who had never examined Moore—a letter asking him to confirm that Moore's “activity as described of walking around a piece of equipment and develop[ing] acute right knee pain” was not the prevailing factor in Moore's need for medical attention. Dr. Knackstedt and Barnes signed the letter on December 15, 2011, confirming that, in their medical opinions, that activity was not the prevailing factor in Moore's need for medical attention.
In 2012, Dr. Kenneth Jansson performed a court-ordered independent medical examination of Moore. He understood that the injury occurred when Moore stepped off the backhoe and found that the incident was the prevailing factor causing the injury and need for medical treatment:
In August 2012, Dr. Pedro A. Murati examined Moore at the request of Moore's attorney. Dr. Murati found that Moore's “current diagnoses are within all reasonable medical probability a direct result from the work-related injury that occurred each and every working day through 10–12–11 during his employment with Venture Corporation.”
In January 2013, Dr. John Estivo examined Moore at the request of Venture and Travelers. Dr. Estivo found that Moore's incident at work was not the prevailing factor causing the injury and need for medical treatment:
At the initial administrative hearing, Judge Pamela J. Fuller denied Moore's claim. She found that Moore's injury occurred while he was walking—an activity of daily living—and that he had a preexisting condition in his knee, thus concluding that Moore had failed to prove his injury arose out of and in the course of his employment and that the accident was the prevailing factor causing his injuries and need for treatment.
Moore appealed to the Workers Compensation Appeals Board. The Board found that Dr. Jansson was the most credible expert witness. It reversed Judge Fuller's denial of workers-compensation benefits, finding that Moore's injury arose out of and in the course of his employment and that the accident at work was the prevailing factor causing the injury. The Board found that the injury occurred when Moore stepped off the...
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