Rinke v. Bank of America, 93,868.

• Decision Date: 22 December 2006
• Docket Number: No. 93,868.,93,868.
• Citation: 148 P.3d 553
• Parties: Peggy A. RINKE, Claimant/Appellee, v. BANK OF AMERICA and Royal & Sun Alliance Insurance Company (American Insurance Company), Respondents/Appellants.
• Court: Kansas Supreme Court

148 P.3d 553

Peggy A. RINKE, Claimant/Appellee, v. BANK OF AMERICA and Royal & Sun Alliance Insurance Company (American Insurance Company), Respondents/Appellants.

No. 93,868.

Supreme Court of Kansas.

December 22, 2006.

COPYRIGHT MATERIAL OMITTED

Terry J. Torline, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, argued the cause and was on the brief for respondents/appellants.

Randy S. Stalcup, of Affiliated Attorneys of Pistotnik Law Offices, PA, of Wichita argued the cause and was on the brief for claimant/appellee.

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

This case requires us to determine whether an employee is entitled to receive workers compensation when, while leaving her office building after work, she fell in an adjoining parking lot leased by her employer. Both the Administrative Law Judge (ALJ) and the Kansas Workers Compensation Board (Board) found that she was injured while on her employer's premises and therefore entitled to compensation. The Court of Appeals, however, held the lot was not part of the employer's premises and compensation was therefore excluded under the "going and coming" rule of K.S.A. 44-508(f). Rinke v. Bank of America, 34 Kan.App.2d 591, 121 P.3d 472 (2005). We granted Rinke's petition for review; our jurisdiction is pursuant to K.S.A. 20-3018(b).

The issues on appeal, and this court's accompanying holdings, are as follows:

1. Does substantial competent evidence support the Board's finding that Rinke was injured on the Bank's premises? Yes.

2. Does the "special risk" exception to the going and coming rule apply? Moot.

Accordingly, we reverse the Court of Appeals and affirm the Board and the ALJ.

FACTS

Peggy Rinke worked for the Bank of America (Bank) in Wichita. Her normal working hours were 6 a.m. to 2:45 p.m. On March 5, 2001, Rinke left work between 3:10 and 3:15 p.m., using the only door authorized for anyone to exit and enter the building.

The exit and covered walkway lead to an adjacent parking lot to the south. According to Rinke, employees have to go through the parking lot to enter and exit the building. As she approached her car parked in the lot four or five stalls from the walkway, she slipped on a patch of sand that was placed to prevent people from slipping on an ice patch. Rinke's right hip, shoulder, and elbow hit the pavement.

At the time of the accident the Bank rented and occupied approximately 94% (156,000 square feet of space) of its building from Argora Properties, L.P. (Argora). The Bank paid $1.56 million per year in rent. The remaining 6% of the building is occupied by Wesley Occupational Services (Wesley).

This facility is essentially a telephone banking operation, with most of the employees devoted to receiving incoming calls regarding banking services. There is no sign posted informing the public the building houses a bank. Accordingly, there is no walk-in traffic, except for use of an ATM on the first floor. The building is "secured," i.e., once one enters the main lobby, further access is denied unless he or she possesses an access badge.

In addition to the building, Argora also owns the parking lot. Section 1.2 of the lease agreement specifically granted the Bank the right to use, as an "appurtenance to the leased premises," the "Parking Facility" (lot). Among other things, it entitled the Bank to install and maintain a drive-up ATM facility, at the Bank's expense, in an area along the lot's eastern edge. It also granted the Bank the right to use 737 of the lot's 757 parking spaces as "reserved spaces." According to the lease agreement rider, the reserved spaces represented by the "reserved parking permits" would at all times be located within an area of the lot designated for use solely by the Bank.

The lot's 20 remaining spaces, located in the eastern and southern corner of the lot away from the building, are reserved for Wesley employees and patients. As with all others, they were authorized only to enter and exit from the one building door. The spaces are marked with a sign stating "Wesley Occupational Health Parking."

After Rinke filed her workers compensation claim, she testified that Bank employees were told they could not park in Wesley's 20 parking spaces. If they did, they were subject to being ticketed by the Wichita police department with the assistance of security. She has been ticketed for doing so. She also testified that the remaining spaces, although not marked or specifically designated for Bank employees, were utilized by them.

These non-Wesley spaces also could be utilized by the general public. Rinke testified, however, that the general public would have no reason to enter the building unless they went to Wesley's area.

Under the lease, Argora was responsible for maintenance, lighting, and security of the lot. The Bank did possess the right to have Argora, upon request, promptly tow any unauthorized vehicles parked in any reserved space or on any surface parking area.

The ALJ determined that Rinke's injuries arose out of and in the course of her employment and her injuries were compensable because the Bank "had exclusive right and control over all 757 parking spaces except for 20 specifically designated as HCA Wesley parking places." In other words, he found that the parking lot was part of the employer's premises. The Board affirmed, and the Court of Appeals reversed. Rinke v. Bank of America, 34 Kan.App.2d 591, 121 P.3d 472.

ANALYSIS

Issue 1: Substantial competent evidence supports the Board's finding that Rinke was injured on the Bank's premises.

Rinke argues that by leasing a large portion of the parking lot, the Bank effectively controlled the lot, despite maintenance and security being performed by Argora. She suggests that the appropriate test for "premises" should be whether the parking lot is leased to the employer, thus giving the employer the right to control.

In response, the Bank asserts that a "premises" rule based on the existence of a lease would conflict with the rationale articulated in Thompson v. Law Offices of Alan Joseph, 256 Kan. 36, 883 P.2d 768 (1994). The Bank reads Thompson to mean that in order for a leased lot to be part of an employer's premises, the employer must exercise control of it. The Bank asserts that its landlord, Argora, controlled the lot.

Standard of Review

The Workers Compensation Act specifically adopts the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., for workers compensation cases. K.S.A. 44-556(a). The appellate court's review of the Board's decision "shall be upon questions of law." K.S.A. 44-556(a).

The interpretation of K.S.A. 44-508(f)—containing the coming and going rule, and exceptions — is a question of law subject to de novo review. Although the Board's interpretation of the statute is persuasive, it is not binding on the courts. Foos v. Terminix, 277 Kan. 687, 692-93, 89 P.3d 546 (2004).

The determination of whether the Board's findings of fact are supported by substantial competent evidence is also a question of law. Titterington v. Brooke Insurance, 277 Kan. 888, 894, 89 P.3d 643 (2004). Whether the injury occurred on the employer's premises is a question of fact. County of Cook v. Industrial Comm'n, 165 Ill.App.3d 1005, 1008, 117 Ill.Dec. 545, 520 N.E.2d 896 (1988). The ultimate issue here, i.e., whether an accident arises out of and in the course of employment entitling Rinke to compensation, is also a question of fact. Titterington, 277 Kan. at 896, 89 P.3d 643.

In workers compensation cases, substantial evidence is evidence possessing something of substance and relevant consequence and carrying with it fitness to induce conviction that the award is proper, or furnishing a substantiating basis of fact from which the issue tendered can be reasonably resolved. We review the evidence in the light most favorable to the prevailing party below and do not reweigh the evidence or assess the credibility of witnesses. Titterington, 277 Kan. at 894, 89 P.3d 643. We must also accept as true all inferences to be drawn from the evidence which support or tend to support the findings of the factfinder. Jones v. Kansas State University, 279 Kan. 128, 140, 106 P.3d 10 (2005) (when under KJRA appellate court ascertains from record if substantial competent evidence supports agency findings, court must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support findings of factfinder).

The burden of proof is on the workers compensation claimant to establish his or her right to an award of compensation and to prove the various conditions on which the right depends. K.S.A. 44-501(a). The party asserting the Board's action is invalid, however, bears the burden of proving the invalidity. K.S.A. 77-621(a)(1). As a result, the Bank, as the appellant, retains the burden in this court of proving the Board erred. Foos v. Terminix, 277 Kan. at 693, 89 P.3d 546.

Discussion

We begin our analysis by reviewing some of the tenets of workers compensation law. In any employment to which the Workers Compensation Act applies, if an employee is injured by an accident that arises out of and in the course of employment, the employer is liable to compensate the employee. K.S.A. 44-501(a). The term "arising out of and in the course of employment" was previously discussed by this court:

"The two phrases arising `out of' and `in the course of' employment, as used in our Workers Compensation Act, K.S.A. 44-501 et seq., have separate and distinct meanings; they are conjunctive, and each condition must exist before compensation is allowable. The phrase `out of' employment points to the cause or origin of the worker's accident and requires some causal connection between the accidental injury and the employment. An injury arises `out of' employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal...