Wiehe v. Kissick Constr. Co.

• Decision Date: 06 May 2010
• Docket Number: No. 102,669.,102
• Citation: 232 P.3d 866
• Parties: Michael Paul WIEHE, Appellee,v.KISSICK CONSTRUCTION COMPANY and Builders Mutual Casualty Co., Appellants.
• Court: Kansas Court of Appeals

232 P.3d 866

Michael Paul WIEHE, Appellee,v.KISSICK CONSTRUCTION COMPANY and Builders Mutual Casualty Co., Appellants.

No. 102,669.

Court of Appeals of Kansas.

May 6, 2010.

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. Under K.S.A.2009 Supp. 44-556(a), decisions by the Workers Compensation Board are reviewed under the Kansas Judicial Review Act, K.S.A.2009 Supp. 77-601 et seq. , which applies generally to appeals from administrative agencies.

2. The interpretation of statutory provisions under the Workers Compensation Act, K.S.A. 44-501 et seq. , is a question of law. No significant deference is due the administrative law judge's or the Workers Compensation Board's interpretation or construction of a statute.

3. Under K.S.A.2009 Supp. 77-621(c)(7) of the Kansas Judicial Review Act, an appellate court reviews questions of fact, in light of the record as a whole, to determine whether an agency's findings are supported to the appropriate standard of proof by substantial evidence. An appellate court shall grant relief if it determines that the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole.

4. The impairment defense under K.S.A.2009 Supp. 44-501(d)(2) provides an employer relief from liability for workers compensation benefits where the injury, disability, or death was contributed to by the employee's use or consumption of alcohol or any drugs, chemicals, or any other compounds or substances.

5. K.S.A.2009 Supp. 44-501(d)(2) creates a conclusive presumption of impairment when it is shown that at the time of the employee's injury an employee tests at or above the stated quantitative level for alcohol or drugs.

6. Under the facts of this case, where the evidence established a conclusive presumption of the employee's impairment and the employer met its burden to show that the employee's injuries were contributed to by the employee's drug use, the employer was not liable for workers compensation benefits under K.S.A.2009 Supp. 44-501(d)(2).

C. Anderson Russell, of Kansas City, Missouri, for appellants.

Christopher J. McCurdy, of Wallace, Saunders, Austin, Brown & Enochs, Chtd., of Overland Park, for appellee.

Before LEBEN, P.J., GREEN and CAPLINGER, JJ.

GREEN, J.

Kissick Construction Company (Kissick) and its insurance company, Builders Mutual Casualty Co. (collectively appellants), appeal from a decision by the Workers Compensation Board (Board) to award Michael Wiehe workers compensation benefits. While working for Kissick, Wiehe was injured when the machine he was operating tipped over and he was ejected from the machine. Shortly after the accident, Wiehe underwent drug testing, which revealed a level of marijuana that demonstrated a conclusive presumption of impairment under K.S.A.2009 Supp. 44-501(d)(2). The Board determined, however, that the impairment exception under K.S.A.2009 Supp. 44-501(d)(2) did not apply to relieve Kissick of liability for workers compensation benefits because there was not sufficient evidence to show that Wiehe had behaved “erratically” or “unusually” before the accident.

Nevertheless, we determine that the Board erroneously interpreted and applied K.S.A.2009 Supp. 44-501(d)(2) to impose a highly inflated, and seemingly insurmountable, burden of proof on the employer. Here, the evidence produced by Kissick established a conclusive presumption of Wiehe's impairment under K.S.A.2009 Supp. 44-501(d)(2) and also showed that Wiehe's injuries had been contributed to by his impairment, which resulted in him operating the machine in a manner that demonstrated extremely poor judgment. Under those circumstances, we find that Kissick met its burden to establish that Wiehe's injuries were contributed to by his use of drugs and that the impairment exception under K.S.A.2009 Supp. 44-501(d)(2) relieves Kissick of liability for workers compensation benefits. Accordingly, we reverse the Board's decision awarding Wiehe workers compensation benefits.

The accident in question in this case occurred on September 21, 2005, while Wiehe was working for Kissick on a highway-widening project in Gardner. Wiehe was operating a sheep's foot roller, which leveled and compacted dirt so that asphalt could be laid on top. Wiehe, who was an operating engineer affiliated with the local construction union, had been hired by Kissick for this particular project the week before the accident occurred.

Wiehe testified that he had operated a sheep's foot roller approximately 100 times previously and that the particular roller he was operating for Kissick did not have as much power as the other rollers he had operated. Moreover, the sheep's foot roller he was operating had rubber tires, instead of the heavier steel wheels that were on other sheep's foot rollers.

When the accident occurred, Wiehe was attempting to break apart a large mass of dirt that had recently been dropped in the area. Wiehe testified that he drove forward over the pile of dirt with the sheep's foot roller and attempted to level the pile with the blade on the front of the machine. According to Wiehe, he then attempted to back over the pile to again try to level it, but the sheep's foot roller tipped over and ejected him from the machine onto the pavement. The sheep's foot roller had a seat belt, but Wiehe was not wearing it when the accident occurred.

Brad Lawson, who worked for Kissick, had been standing near Wiehe and the sheep's foot roller when the accident occurred. According to Lawson, he watched Wiehe attempt to back over the mass of dirt twice. Lawson testified that as he watched Wiehe back the sheep's foot roller towards the mass of dirt the first time, Lawson thought the mass was too large for the machine. Upon hitting the mass, the sheep's foot roller went high center and stopped. Lawson testified that as Wiehe drove the sheep's foot roller forward off the large mass, Lawson was relieved that the machine had not flipped.

Lawson testified that the machine was not equipped to be utilized in that manner and “[y]ou almost never see sheep's foot operators contact dirt with the rear of their machine first.” According to Lawson, the dirt did not have to be spread out at that point. Lawson testified that more loads of dirt were going to be dropped in the area, and the blade hand would have come over to spread the dirt out before it was compacted.

Lawson then saw Wiehe move the machine over so that its right tire was in line with the large mass of dirt and begin to back up again. Lawson testified that he was “pretty much just freaked out” and shook his head to communicate to Wiehe to “just forget it, don't try to do it” because he was afraid that the machine was going to tip over. When the sheep's foot roller hit the mass of dirt the second time, the mass did not break apart sufficiently, and the machine tipped over.

As a result of the accident, Wiehe suffered numerous injuries, including severe pelvic injuries, and was hospitalized. Consistent with Kissick's postaccident drug and alcohol policy, a drug test was performed on Wiehe at the hospital. The drug test results revealed that Wiehe had a level of marijuana of 62 ng/ml, which was more than four times the level to establish a conclusive presumption of impairment under 44-501(d)(2). Although preliminary testing of Wiehe's urine sample indicated a presence of methamphetamine, the final test results did not demonstrate the presence of methamphetamine.

Wiehe admitted that he had used both methamphetamine and marijuana the day before the accident. Wiehe testified that when he got off work on September 20, 2005, he took two hits of methamphetamine and also shared a marijuana joint at the job site with another worker. Wiehe further testified that after going home that evening, he smoked another marijuana joint around 8 p.m. Wiehe testified that he was a regular user of marijuana around the time the accident occurred. According to Wiehe, he went to bed around 9 p.m. that evening and then woke up around 5 a.m. the next morning to get ready for work. Wiehe testified that he was clearheaded and not on drugs the day of the accident.

Based on the injuries he suffered during the accident, Wiehe filed for workers compensation benefits against the appellants. At a January 2006 preliminary hearing before the ALJ, the appellants argued that Wiehe's injuries were contributed to by his drug impairment, and therefore he was not entitled to workers compensation benefits under 44-501(d)(2).

In addition to Lawson's and Wiehe's testimony, the ALJ also heard testimony from Michael Eddings, the pipe foreman for Kissick. Just before the accident, Eddings had come to the job site to deliver an item. Eddings testified that as he was driving slowly by the area where the sheep's foot roller was being used, he noticed that the operator (Wiehe) was acting “a little goofy or squirrely.” According to Eddings, he was driving about 3 to 4 miles per hour and was about 4 feet away from Wiehe when he passed him. Eddings testified that Wiehe was bobbing and weaving his head, and Eddings thought there might be a problem with him. Eddings further testified that he had attempted to talk to Jack Staton, the site supervisor, about Wiehe but Staton was too busy to talk with him before the accident occurred. According to Eddings, he was finally able to voice his concerns to Staton later in the afternoon after the accident had occurred. It was not until 8 days after the accident that Eddings made a written statement about his concerns.

Consistent with Eddings' testimony, Staton testified that Eddings had talked to him about Wiehe after the accident had occurred. According to Staton, Eddings told him that Wiehe had been “all over that machine” and had been acting like “a wild squirrel or something that just wasn't comprehending everything.” Staton testified that he later asked Eddings to write a voluntary...