Scott v. Wolf Creek Nuclear Operating Corp.

• Decision Date: 13 December 1996
• Docket Number: No. 74310,74310
• Citation: 23 Kan.App.2d 156,928 P.2d 109
• Parties: Sandra L. SCOTT and John Wayne Scott, Individually; Sandra L. Scott, Natural Mother and Next Friend of Thomas Richard Scott, the Heirs-at-Law of Gary R. Scott, Deceased; and Sandra L. Scott, Administratrix of the Estate of Gary R. Scott, Deceased, Appellants, v. WOLF CREEK NUCLEAR OPERATING CORP., Stephen E. Hoch, P.A., Keith W. Clements, P.A., and Nelson P. White, M.D., Appellees.
• Court: Kansas Court of Appeals

Page 109

928 P.2d 109

23 Kan.App.2d 156

Sandra L. SCOTT and John Wayne Scott, Individually; Sandra L. Scott, Natural Mother and Next Friend of Thomas Richard Scott, the Heirs-at-Law of Gary R. Scott, Deceased; and Sandra L. Scott, Administratrix of the Estate of Gary R Scott, Deceased, Appellants, v. WOLF CREEK NUCLEAR OPERATING CORP., Stephen E. Hoch, P.A. Keith W. Clements, P.A., and Nelson P. White M.D., Appellees.

No. 74310.

Court of Appeals of Kansas.

Dec. 13, 1996.

Syllabus by the Court

1. Under the exclusive remedy provision of the Workers Compensation Act, if an employee can recover workers compensation for an injury, he or she is barred from bringing a negligence suit for damages against an employer or coemployee. K.S.A. 44-501(b).

2. To recover workers compensation, an employee must show that he or she suffered personal injury by accident arising out of and in the course of employment. K.S.A. 44-501(a).

3. The heart amendment, K.S.A. 44-501(e), does not bar an employee's claim that he or she suffered a loss of chance of surviving a heart attack due to an employer's or coemployee's negligence.

4. For an employee's injury to arise "out of" employment, there must be some causal connection between the employee's injury and the employment. An injury arises out of employment where it does not arise from a hazard to which the employee would have been equally exposed apart from the employment.

5. Where an employee is negligently treated for a nonwork-related injury by an employer or coemployee whose job is to provide medical treatment to employees, there is a sufficient causal connection to make any aggravation of the injury or additional injury arising from that treatment compensable under the Workers Compensation Act.

6. The dual capacity doctrine does not apply to confer tort liability upon an employer or coemployee who negligently treats an employee for a nonwork-related injury.

Randall E. Fisher, of Law Offices of Randall E. Fisher, and Christopher P. Christian and Derek S. Casey, of Hutton & Hutton, Wichita, for appellants.

Richard C. Hite and F. James Robinson, Jr., of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, for appellees.

Before ELLIOTT, P.J., and PIERRON, J., and MARLA J. LUCKERT, District Judge, assigned.

ELLIOTT, Presiding Judge:

At issue in this case is whether the exclusive remedy provision of the Workers Compensation Act bars a civil suit against an employer and coemployees for the negligent treatment of a heart attack, even though the heart attack itself is not compensable under workers compensation. The district court found that workers compensation was the exclusive remedy, and we affirm.

Gary Scott suffered a heart attack while working at Wolf Creek Nuclear Power Plant (Wolf Creek) and died a short time later. Before his death, Scott was treated by Stephen Hoch and Keith Clements, physician's assistants who were employed by Wolf Creek to provide first aid and other immediate care to Wolf Creek employees for both occupational and nonoccupational illnesses and injuries arising during the workday.

Scott's estate and heirs filed a medical malpractice action against Wolf Creek, Hoch, Clements, and their supervising physician, Nelson White, M.D., alleging that Scott lost a chance of surviving the heart attack because of the negligent treatment he received from Hoch and Clements. White was later dismissed from the suit without prejudice by stipulation of the parties. The district court granted summary judgment in favor of the remaining defendants, ruling that plaintiffs' suit was barred by the exclusive remedy provision of the Workers Compensation Act.

On appeal, plaintiffs argue that the district court erred in granting summary judgment (1) because the original injury was noncompensable under K.S.A. 44-501(e), commonly referred to as the heart amendment; (2) because, under a dual capacity theory, defendants were not acting in their capacities as employer and coemployees but were acting as health care providers; therefore, they were not immune from tort liability; and (3) because defendants were estopped from claiming that workers compensation was plaintiffs' exclusive remedy when Wolf Creek previously told Scott's widow that she was not entitled to workers compensation benefits for her husband's death.

Under the exclusive remedy provision of the Workers Compensation Act, if an employee can recover workers compensation for an injury, he or she is barred from bringing a negligence suit for damages against an employer or coemployee. K.S.A. 44-501(b). Thus, the pivotal question to be resolved is whether plaintiffs' claim is compensable under the Act. In order to recover workers compensation, a claimant must show that he or she suffered "personal injury by accident arising out of and in the course of employment." K.S.A. 44-501(a). The heart amendment, however, specifically precludes coverage for "coronary or coronary artery disease" unless caused by exertion which was "more than the employee's usual work in the course of the employee's regular employment." K.S.A. 44-501(e).

Here, the parties stipulated that Scott's heart attack was not causally connected to his exertion at work. Plaintiffs argue that their claim is noncompensable under the heart amendment; therefore, the exclusive remedy provision does not apply. Defendants respond that the heart amendment does not apply because plaintiffs' claim involved the loss of chance of survival, not the heart attack itself.

We agree with defendants that there is an important distinction between a claim based upon a heart attack and a claim based upon a loss of chance of surviving a heart attack due to negligent treatment. Had plaintiffs sought compensation for the heart attack itself, the heart amendment would likely have barred their claim. Instead, plaintiffs' petition claimed that defendants' negligence caused or contributed to Scott's death by reducing his chance of surviving the heart attack. This type of claim is not barred by the heart amendment.

The next issue, then, is whether the negligent treatment of Scott's heart attack arose out of and in the course of his employment with Wolf Creek. To arise "out of" employment, there must be some causal connection between the injury and the employment. An injury arises out of employment where it arises out of the nature, conditions, and incidents of employment and does not arise from a hazard to which the worker would have been equally exposed apart from the employment. Martin v. U.S.D. No. 233, 5 Kan.App.2d 298, 299, 615 P.2d 168 (1980).

Defendants cite two recent decisions of this court in support of their argument that Scott's loss of chance of survival arose out of his employment. In Bennett v. Wichita Fence Co., 16 Kan.App.2d 458, 824 P.2d 1001, rev. denied 250 Kan. 804 (1992), the claimant was injured when he suffered an epileptic seizure while driving a company vehicle to make a delivery and ran into a tree. We held that the conditions of the claimant's employment placed him in a position of increased risk which created the necessary causal connection between the injury and the employment; therefore, the injury arose out of claimant's employment and was covered by workers compensation. 16 Kan.App.2d at 460, 824 P.2d 1001.

We cited Bennett in deciding Baggett v. B & G Construction, 21 Kan.App.2d 347, 900 P.2d 857 (1995). Baggett involved a claimant who was injured when he was assaulted by a coemployee and fell into an open hole on the job site. The Baggett court noted that in Bennett, we looked at the injury and whether it was exacerbated by employment conditions. The Baggett court held that because the concurrence of the assault and the employment hazard caused claimant's injury, the injury was compensable. 21 Kan.App.2d at 350, 900 P.2d 857. In discussing the causal connection between the injury and the employment, we stated:

"[T]his assault was clearly not precipitated by a work-related matter. However, like Bennett, Baggett's injury was partly the result of work-related circumstances. Bennett may not have crashed into a tree during an epileptic seizure had he not been working. Likewise, Baggett would not have sustained a serious head injury and broken clavicle during a pushing match had he not been on the job site, which contained an open hole." 21 Kan.App.2d at 350, 900 P.2d 857.

We hold that there is a causal connection between Scott's employment at Wolf Creek and his receiving negligent medical treatment. Even though the treatment was for a nonwork-related injury, Scott received treatment because he was an employee of Wolf...