Opinion
Nos. 106,126 106,127 106,131.
2012-05-11
Carlos QUINTANA, Appellee, v. H.D. DRILLING LLC, and Granite State Insurance Co., Appellants. Arturo Martinez, Appellee, v. H.D. Drilling LLC, and Granite State Insurance Co., Appellants. Carlos Martinez Jr., Appellee, v. H.D. Drilling, LLC and Granite State Insurance Co., Appellants.
Appeal from Workers Compensation Board. John David Jurcyk and Douglas M. Greenwald, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellant. Brian D. Pistotnik, of Pistotnik Law Offices, P.A., of Wichita, for appellees.
Appeal from Workers Compensation Board.
John David Jurcyk and Douglas M. Greenwald, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellant. Brian D. Pistotnik, of Pistotnik Law Offices, P.A., of Wichita, for appellees.
Before HILL, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This consolidated appeal is made by the employer and its insurance carrier from three awards affirmed by the Appeals Board for the Kansas Division of Workers Compensation. As we are convinced that the Board has properly interpreted the law, we affirm its rulings.
Three workers were injured and their supervisor killed in a one-car accident.
Carlos Quintana worked full time as a derrick hand for H.D. Drilling, LLC. Quintana and two coworkers, Arturo Martinez and Carlos Martinez, Jr., were passengers in a vehicle driven by their driller supervisor Ricardo Martinez. On the way directly home from a drilling site they were all involved in a single vehicle accident. Martinez was killed, and Quintana, Arturo, and Carlos were all injured. Quintana later filed an application for workers compensation benefits. Arturo and Carlos filed separate applications later. We focus on Quintana's claim in order to illustrate the issues common to all three cases that are the subject of this consolidated appeal.
The parties stipulated that Quintana suffered a 25 percent permanent partial disability to the body as a whole. One of the issues the administrative law judge considered was whether the accident arose out of and in the course of Quintana's employment.
On December 17, 2010, the ALJ made an award. After making detailed findings of fact, the ALJ determined Quintana sustained the burden of proof that his injuries arose out of and in the course of his employment when the car accident occurred, and that the “going and coming” rule” under K.S.A.2010 Supp. 44–508(f) did not apply because Quintana fell under the “integral” travel exception found in Messenger v. Sage Drilling Co., 9 Kan.App.2d 435, 437, 680 P.2d 556,rev. denied 235 Kan. 1042 (1984). The ALJ concluded that the evidence clearly established Quintana worked for H.D. Drilling, LLC both prior to and on the date of the accident and he had received compensation for his work. The ALJ granted Quintana's application for workers compensation benefits and awarded total compensation of $71,547.25, consisting of 37 weeks' temporary total disability compensation at $529 per week, and 98.25 weeks of permanent partial disability compensation at $529 per week, for sustaining 25 percent impairment to the body as a whole.
H.D. Drilling, LLC sought review by the Workers Compensation Appeals Board (Board). H.D. Drilling, LLC abandoned the employee/employer relationship issue before the Board, leaving the remaining four issues.
The Board issued its order in April 2011, after concluding that travel was an integral part of Quintana's job at H.D. Drilling, LLC and, therefore, Quintana's car accident and injuries occurred within the course and scope of his employment. In doing so, the Board disagreed with H.D. Drilling, LLC's argument that under Bergstrom v. Spears Manufacturing. Co., 289 Kan. 605, 214 P.3d 676 (2009), Quintana's claim was barred by the “going and coming” rule because K.S.A.2008 Supp. 44–508(f) does not specifically provide for an integral travel exception to the rule. After examining the evidentiary record, the Board also found that H.D. Drilling, LLC failed to establish that equitable estoppel applied. The Board affirmed the ALJ's award, requiring H.D. Drilling, LLC to pay Quintana a lump sum amount of $41,034.53, less amounts previously paid, and the remaining balance owed of $30,512.72 to be paid at a rate of $529 for 57.68 weeks. H.D. Drilling, LLC and its insurance carrier, Granite State Insurance Co., appeal the Board's decision. The other two claimants received awards, as well.
We review some fundamental points of the law of workers compensation.
This case involves the review of the Board's determination that the accident occurred within the course and scope of Quintana's employment, as well as the Board's interpretation and application of the “going and coming rule,” as set forth in K.S.A.2010 Supp. 44–508(f).
Appellate courts have unlimited review of questions involving the interpretation or construction of a statute, owing “ ‘no significant deference’ “ to the agency's or the Board's interpretation or construction. Fort Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs, 290 Kan. 446, 457, 228 P.3d 403 (2010). This court reviews a challenge to the Board's factual findings in light of the record as a whole to determine whether the findings are supported to the appropriate standard of proof by substantial evidence. See K.S.A.2010 Supp. 77–621(c)(7); Herrera–Gallegos v. H & H Delivery Service, Inc., 42 Kan.App.2d 360, 362, 212 P.3d 239 (2009).
Although not statutorily defined, “substantial evidence” refers to “evidence possessing something of substance and relevant consequence to induce the conclusion that the award was proper, furnishing a basis of fact from which the issue raised could be reasonably resolved.” Redd v. Kansas Truck Center, 291 Kan. 176, 183–84, 239 P.3d 66 (2010). The language “in light of the record as a whole” is statutorily defined as meaning
“that the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77–620, and amendments thereto, cited by any party that supports such finding, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witness and the agency's explanation of why the relevant evidence in the record supports its material findings of fact. In reviewing the evidence in light of the record as a whole, the court shall not reweigh the evidence or engage in de novo review.” K.S.A.2010 Supp. 77–621(d).
We examine the “Going and Coming” Rule.
Simply stated, in order to receive benefits, a worker must be injured at work. Under K.S.A.2010 Supp. 44–501(a), “[i]f in any employment to which the workers compensation act applies, personal injury by accident arising out of and in the course of employment is caused to an employee, the employer shall be liable to pay compensation to the employee.” See K.S.A.2010 Supp. 44–508(f). The claimant has the burden of proof to show that his or her injury arose out of and in the course of employment. K.S.A.2010 Supp. 44–501(a); see Coleman v. Swift–Eckrich, 281 Kan. 381, 384, 130 P.3d 111 (2006). “ ‘Burden of proof’ means the burden of a party to persuade the trier of facts by a preponderance of the credible evidence that such party's position on an issue is more probably true than not true on the basis of the whole record.” K.S.A.2010 Supp. 44–508(g).
K.S.A.2010 Supp. 44–508(f) codifies the “going and coming” rule, which excludes certain injuries from falling within the scope out of and in the course of employment. The statute states, in relevant part:
“The words ‘arising out of and in the course of employmen’ as used in the workers compensation act shall not be construed to include injuries to the employee occurring while the employee is on the way to assume the duties of employment or after leaving such duties, the proximate cause of which injury is not the employer's negligence.” K.S.A.2010 Supp. 44–508(f).
The “going and coming” rule denies compensation if the injury occurs during the employee's commute to or from work, based on the premise that during the commute, the employee is subjected only to the same risks or hazards the general public encounters, so there is no causal relation between such risks and the employment. Sumner v. Meier's Ready Mix, Inc., 282 Kan. 283, 289, 144 P.3d 668 (2006).
The Kansas Legislature has created certain exceptions to the “going and coming” rule. In addition to an aforementioned exception due to the employer's negligence, K.S.A.2010 Supp. 44–508(f) sets forth the premises, special hazard, and emergency services exceptions:
“An employee shall not be construed as being on the way to assume the duties of employment or having left such duties at a time when the worker is on the premises of the employer or on the only available route to or from work which is a route involving a special risk or hazard and which is a route not used by the public except in dealings with the employer. An employee shall not be construed as being on the way to assume the duties of employment, if the employee is a provider of emergency services responding to an emergency.”
We examine how the Board analyzed the problem.
Kansas courts have previously dealt with the “going and coming” rule. In Messenger, 9 Kan.App.2d at 437, this court clarified that a long-standing basic exception to the rule still existed—“when the operation of a motor vehicle on the public roadways is an integral part of the employment or is inherent in the nature of the employment or is necessary to the employment, so that in his travels the employee was furthering the interests of his employer.” In Sumner, 282 Kan. at 289, our Supreme Court held that the injuries incurred while going and coming from work can also be compensable where the traveling is required in order to complete some special work-related errand or special-purpose trip.
In light of that, the Board noted that Quintana's claim along with the other two centered on the application of the exception to the “going and coming” rule stated in Messenger. The Messenger case involved a fatal car accident that occurred when the claimant was returning home from a distant drilling site. This court was asked to decide whether the claimant's claim was compensable or barred by the “going and coming” rule. In holding that the “going and coming” rule did not apply, the Messenger court stressed that drilling companies do not hire new teams near each drilling site; it was the customary practice in the oil well drilling business that workers lived at some distance from their job sites and would travel daily to reach there; employees had no permanent job site but, instead, were expected to be amenable to travel to and from drilling sites, sometimes over 200 miles away; employees were required to provide their own transportation, for which they were compensated; and the employer benefited by the industry's customary transportation arrangements and when crew members agreed to travel. 9 Kan.App.2d at 439–40.
H.D. Drilling, LLC attacks the Board's ruling in two ways. First, the employer argues the Board erred when it held the inherent travel rule applied to these workers' daily commutes. Then, in a broader attack, H.D. Drilling, LLC contends that, based on Bergstrom, 289 Kan. 605, the inherent travel rule must be thrown out. We will address those issues in that order.
We examine the employer's first argument.
On appeal, H.D. Drilling, LLC vainly attempts to distinguish Messenger. The company concedes that “crew members worked at remote drilling sites and customarily did travel together in the driller's personal vehicle,” but it raises two arguments in opposition. First, the driller Ricardo Martinez was arguably the only employee engaged in inherent or intrinsic travel because he actually received a mileage reimbursement for the commute, whereas Quintana did not. Quintana and the others were given a per diem payment as compensation for work performed at the job site, not for travel. Second, Quintana was not required to commute to the drill sites with Ricardo Martinez. At the time of the accident, Quintana was simply being accommodated as a passenger to help Quintana avoid personal commuting expenses. Neither of these arguments is persuasive because they do not really fit the facts.
In our examination of this problem, we will not reweigh the evidence as H.D. Drilling, LLC asks, nor will we redetermine the credibility of witnesses. All of that is beyond the purview of this court. See K.S.A.2010 Supp. 77–621; Casco v. Armour Swift–Eckrich, 283 Kan. 508, 514–15, 154 P.3d 494 (2007). In our view, the record reveals that substantial competent evidence supports the Board's finding that travel was an integral part of Quintana's job. See International Petroleum Services, Inc. v. S & N Well Service, Inc., 230 Kan. 452, Syl. ¶ 8, 639 P.2d 29 (1982).
Carlos Martinez Sr., a driller on a different shift, testified that his supervisor told him that because H.D. Drilling, LLC would only pay for one person to drive to the job site he had to pick up his crew to take them to work; having the driller drive the crew was customary in the industry and crew members were paid a daily per diem of $8; and that H.D. Drilling, LLC does not hire workers who live close to the oil rig because the location is never the same and the job requires constant travel to remote distant locations.
Quintana testified that Ricardo Martinez told him when he was hired that he would be picked up and driven to work; it was customary for the drillers to drive the crew and H.D. Drilling, LLC not only benefitted from this travel arrangement but encouraged it; and he got paid the per diem because Ricardo Martinez got paid mileage. But if he drove the crew instead of Ricardo Martinez, he would be paid mileage.
Arturo Martinez testified that Ricardo Martinez told him every day when he was to be picked up and driven to work; travel was important to the job; and it was typical to drive 2 to 3 hours each way to the job site.
Carlos Martinez, Jr., testified that it was customary for the driller to drive the crew to the job site; the crew could travel anywhere from approximately 1 hour to 4 1/2 hours each way, but usually drove about 5 hours daily; H.D. Drilling, LLC knew of the travel arrangements and if Ricardo Martinez was unable to drive, it would pay the mileage rate to whoever else drove; and H.D. Drilling, LLC benefited from having Ricardo Martinez drive the crew because they would arrive on time and it would not have to hire new people whenever the rig moved locations, which was every 15 to 20 days.
Such testimony supports the Board's judgment. The Board stressed the importance that H.D. Drilling, LLC used the same crew to work at each new job site rather than hire new workers; Quintana was required to travel to different job sites every couple of weeks; it was customary to expect Quintana to travel with the driller, and Quintana received a daily per diem compensation; and both Quintana and H.D. Drilling, LLC benefitted from the travel arrangement. Under these facts and circumstances, Quintana's lengthy daily commute with Ricardo Martinez was contemplated by his employment with H.D. Drilling, LLC and was so expected as to become incidental to the employment within the meaning of the Workers Compensation Act. See Bell v. Allison Drilling Co., 175 Kan. 441, 445, 264 P.2d 1069 (1953); Blair v. Shaw, 171 Kan. 524, 528, 233 P.2d 731 (1951); Mitchell v. Mitchell Drilling Co., 154 Kan. 117, 114 P.2d 841 (1941).
The Board also relied on Kindel v. Ferco Rental, Inc., 258 Kan. 272, 899 P.2d 1058 (1995). In Kindel, the claimant was killed in a company vehicle driven by his supervisor after they resumed the direct route home from a personal deviation. Our Supreme Court ruled that the claimant's claim fell under the general rule exception despite the deviation because the employees were expected to live out of town during the work week and be transported to and from the remote job site in a company vehicle driven by a supervisor. 258 Kan. at 277, In Kindel, the method of travel, or use of a company vehicle, was not dispositive; it was only one fact our Supreme Court considered in conjunction with the claimant being required to travel to and from a remote job site. In Halford v. Nowak Construction, 39 Kan.App.2d 935, 940, 186 P.3d 206,rev. denied 287 Kan. 765 (2008), a panel of this court held that the use of a company vehicle is an appropriate factor to be considered in determining whether travel in that vehicle is an intrinsic part of the employment in a situation when the claimant was expected to travel considerable distances in a company vehicle driven by his supervisor from his home to job sites and was not compensated for his time travelling.
Basically, the distinction between Kindel and the facts here is the supervisor's use of a company vehicle to transport the claimant to the remote job site versus Ricardo Martinez being compensated mileage by H.D. Drilling, LLC for providing his own vehicle to do the same. Such a distinction is not significant. Ricardo Martinez was performing the same function as the driller in Kindel, transporting coworkers. Industry custom and expectations required the drilling crew to be transported to the job site by the driller, in this case Ricardo Martinez. Quintana was told by Ricardo Martinez that he needed to travel with him to the job site. This arrangement was not intended as a personal arrangement to share rides with each other, but rather was part of his employment. In this way the entire crew would arrive at the same time at the drilling site and work could begin promptly. In the same way, work would not cease until the supervisor said so.
We do not think Bergstrom applies here.
The Bergstrom court interpreted K.S.A. 44–510e(a), a different workers compensation statute, to determine whether a claimant was required to make a good-faith effort to look for and accept alternate employment. The court viewed the express statutory language to be dispositive:
“When a workers compensation statute is plain and unambiguous, this court must give effect to its express language rather than determine what the law should or should not be. The court will not speculate on legislative intent and will not read the statute to add something not readily found in it. If the statutory language is clear, no need exists to resort to statutory construction.” 289 Kan. at 607–08.
Thus, to us, H.D. Drilling, LLC argues that this court is no longer bound by Kansas Supreme Court precedent, grounded on a theory that legislative intent is the first resort of statutory interpretation. In the employer's view, the line of decisions recognizing an inherent or intrinsic travel exception are contrary to the method of interpretation employed in Bergstrom. H.D. Drilling, LLC contends the exception adds to the statute or reads into it language that the legislature did not include. H.D. Drilling, LLC asks us to give effect to the legislative intention as expressed by the statutory language, which does not specifically provide for such an exception.
In its treatment of this argument, the Board took issue with H.D. Drilling, LLC's characterization of the inherent travel and special purpose exceptions as being judicially created exceptions. In doing so, the Board correctly clarified that there is a distinction between a judicially created travel exception and prior judicial determinations that K.S.A.2010 Supp. 44–508(f) was not applicable to a claimant's claim when the claimant was not on the way to work, but already in the course of employment when the accident occurred. This distinction is accurately noted in Judge Leben's concurring opinion in Halford, where it states in relevant part:
“I merely wish to add that the exception to the ‘going and coming rule’ for travel that is intrinsic to the job is firmly rooted in the statutory language, even though many cases have referred to it as a judicially created exception. The statute provides that a worker is not covered ‘while the employee is on the way to assume the duties of employment.’ K.S.A. 44–508(f). Where travel is truly an intrinsic part of the job, the employee has already assumed the duties of employment once he or she heads out for the day's work. Thus, the employee is no longer ‘on the way to assume the duties of employmen’—he or she has already begun the essential tasks of the job. Such an employee is covered by the Workers Compensation Act and is not excluded from coverage by the ‘going and coming rule.’ “ 39 Kan.App.2d at 942 (Leben, concurring).
Judge Leben's concurrence points to a new way of looking at these facts. We are persuaded that Quintana and the others were working from the time they got into the car to report to the job site until they were let out of the car when they returned home. This means the going and coming rule did not apply here. This is not an exception to the rule created by judicial action; rather, it is a finding of fact made by the Board that is supported by substantial evidence. Bergstrom does not apply.
In any event, this court is duty bound to follow Kansas Supreme Court precedent, unless there is some indication the court is departing from its previous position. Tyler v. Goodyear Tire & Rubber Co., 43 Kan.App.2d 386, 391, 224 P.3d 1197 (2010). Since Bergstrom, the Kansas Supreme Court has not departed from any cases interpreting or recognizing the inherent travel exception. Accordingly, the Messenger analysis is sound.
As in Messenger, Quintana was expected to travel considerable distances from his home to the job site. H.D. Drilling, LLC chose not to hire new workers at each new job site location but, rather, relied on the same crew to travel together between the different job sites. Because of this, Quintana was exposed to an increased risk of injury and was injured while engaging in an activity contemplated by his employer. See Angleton v. Starkan, Inc., 250 Kan. 711, 718, 828 P.2d 933 (1992). Quintana's willingness to travel furthered H.D. Drilling, LLC's interests. Thus, in his travels, Quintana was performing a benefit for his employer, and therefore his injuries arose out of and in the course of his employment.
The Board did not err in determining that Quintana's claim, along with the other two employees, were not barred by the “going and coming” rule of K.S.A.2010 Supp. 44–508(f).
Affirmed.