Opinion
110,397.
10-10-2014
Annmarie G. SALSBERRY (Deceased) (Carrissa A. Peacock and Chris Joseph Peacock) (Terry Salsberry), Appellants, v. MERCY HEALTH SYSTEM OF KANSAS, Appellee.
Kala Spigarelli, of Pittsburg, and Richard D. Loffswold, Jr., of Girard, for appellant. Joseph R. Ebbert, of Foland, Wickens, Eisfelder, Roper & Hofer, P .C., of Kansas City, for appellee.
Kala Spigarelli, of Pittsburg, and Richard D. Loffswold, Jr., of Girard, for appellant.
Joseph R. Ebbert, of Foland, Wickens, Eisfelder, Roper & Hofer, P .C., of Kansas City, for appellee.
Before HILL, P.J., POWELL and STEGALL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Annmarie Salsberry died when she was involved in a fatal accident while travelling on U.S. Highway 69 on her way to work. At the time of the accident, Salsberry was driving a fleet vehicle owned by her employer, Mercy Health Systems of Kansas Inc. (“Mercy”). Salsberry was employed by Mercy as the Executive Director of Quality Assurance for all Mercy facilities in Kansas, a position she had held since September 2005.
Mercy has two hospitals in Kansas, one in Fort Scott and one in Independence, Though Salsberry was free to determine her own schedule, she was expected to spend half of her time at each hospital and she had a designated office in both hospitals. Each hospital also had its own President and CEO, and Salsberry was directly supervised by both. Salsberry lived in Altamont, Kansas. From her home, it took Salsberry approximately 45 minutes to drive to the Independence hospital and 1 hour and 20 minutes to drive to the Fort Scott hospital. Mercy also operates rural health clinics outside of Independence and Fort Scott and Salsberry was required to travel to these as well in order to fulfill her job responsibilities. Her job description stated that her position involved operating vehicles and machinery 34–66% of the time.
While Salsberry was an exempt employee and free to schedule her own work days and hours, there was an oral directive given to all directors that they were to maintain normal office hours during the business day. However, while she was expected to keep normal office hours, as an exempt employee she was expected to perform work beyond these hours if necessary.
When she was not in her office, it was possible for Salsberry to access her work files and computer remotely. Salsberry would often access her Mercy files and e-mail remotely from home and would perform work at all hours and would also make phone calls for work from home. However, she was not permitted to work from home in lieu of working from her office during her normal business hours.
Both hospitals maintained a fleet of vehicles for employee business purposes. Employees could reserve the vehicles for use by contacting the maintenance departments at the respective facilities and telling them what day the vehicle was to be used and then checking the vehicle out by signing a log. The vehicle use policies for Independence, Fort Scott, and Mercy Health Systems of Kansas all state that vehicles are to be used only for business purposes.
It was Salsberry's general practice to drive her personal vehicle to Independence on the days she worked there, and then to check out a Mercy company vehicle to both drive home from Independence and drive to Fort Scott the following day. She would keep the company vehicle for as long as 3 days at a time. Salsberry did not conceal this practice from Mercy, and she had a reserved vehicle nearly every day in the months of September through December. Executives at Mercy, however, were unaware that Salsberry was using the company vehicles in this manner.
On December 7, 2010, Salsberry and her husband were returning from a trip to Topeka following her husband's doctor's appointment. On the way home, they stopped in Independence, and Salsberry checked out a company car and took it home. On December 8, 2010, Salsberry drove the car to and from work in Fort Scott. On December, 9, 2010, Salsberry was killed when she rear-ended a truck performing road work. She was on her way to work in Fort Scott.
Salsberry's minor children and husband filed a claim pursuant to the Kansas Workers Compensation Act (the Act). After conducting a hearing and receiving depositions into evidence, the administrative law judge (the ALJ) found that Salsberry's death arose out of and in the course of her employment. Mercy appealed to the Appeals Board of the Division of Workers Compensation (the Board), which reversed the decision of the ALJ. The Board reasoned that Salsberry had two permanent work sites and was merely in the process of commuting to work. The Board concluded that there was simply insufficient evidence that Salsberry had assumed her work duties at the time of her death and, as such, the claim was barred by the Act.
Salsberry's husband and children now appeal.
Analysis
The only issue on appeal is whether the Board correctly determined that Salsberry's death did not arise out of and in the course of her employment. We review the Board's factual findings in light of the record as a whole to determine whether the findings are supported by substantial evidence. K.S.A.2013 Supp. 77–621(c)(7). Substantial evidence is “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 easily resolved.” Saylor v. Westar Energy, Inc., 292 Kan. 610, 614, 256 P.3d 828 (2011). In reviewing the record as a whole, we evaluate the adequacy of the Board's factual findings
“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 ... 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.2013 Supp. 77–621(d)
Accordingly, we do not “weigh conflicting evidence except to determine whether the evidence supporting the Board's decision has been so undermined by conflicting evidence that we no longer have confidence in the substantial nature of the evidence.” Messner v. Continental Plastic Containers, 48 Kan.App.2d 731, 750, 298 P.3d 371, rev. denied 297 Kan. 1246 (2013).
K.S.A.2010 Supp. 44–508(f) contains what is generally known as the “coming and going rule.” It provides that the Act does not cover injuries “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). Kansas appellate courts have recognized an exception to the coming and going rule that applies when travel is an intrinsic part of an employee's job duties. Scott v. Hughes, 294 Kan. 403, 414, 275 P.3d 890 (2012). The proper application of the coming and going rule and the inherent travel exception is a question of law over which we exercise unlimited review. Therefore, we will review the Board's factual determination as to whether Salsberry's death arose out of and in the course of employment for substantial competent evidence based on the record viewed in light of the whole and we will review de novo the ultimate conclusion as to whether her claim is barred by K.S.A.2010 Supp. 44–508(f).
“Under the Act, the phrases arising ‘out of’ and ‘in the course of’ employment have distinct meanings, and both conditions must exist for a claim to be compensable.” Smith v. Winfield Livestock Auction, Inc., 33 Kan.App.2d 615, 618, 106 P.3d 94 rev. denied 279 Kan. 1007 (2005). “An injury arises ‘out of employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.” Kindel v. Ferco Rental, Inc., 258 Kan. 272, 278, 899 P.2d 1058 (1995). “The phrase ‘in the course of employment relates to the time, place, and circumstances under which the accident occurred and means the injury happened while the worker was at work in the employer's service.” 258 Kan. at 278.
Salsberry's family relies on a line of cases applying the inherent travel exception. We have previously described those cases as follows:
“[W]hile many of the cases from our appellate courts discuss inherent travel as an exception to the going-and-coming rule, it appears the analysis is really whether travel has become a required part of the job such that the employee actually assumes the duties of employment from the moment he or she leaves the house and continues to fulfill the duties of employment until he or she arrives home at the end of the workday.” Craig v. Val Energy, Inc., 47 Kan.App.2d 164, 168, 274 P.3d 650 (2012), rev. denied 297 Kan. 1244(2013).
Kansas courts have identified a number of nonexclusive factors tending to demonstrate that an employee either has or has not actually assumed the duties of employment upon beginning the drive to work. Such factors include: (1) whether the employee is driving to a fixed or a mobile work site; (2) whether the employee is compensated for the drive to the work site; and (3) whether the employee's travel provides a benefit to the employer above and beyond the employee simply driving to work. See Craig, 47 Kan.App.2d at 169 (noting previous cases considered fixed worksites, mutual benefit for employer and employee, and compensation for travel); Halford v. Nowak Construction Co., 39 Kan.App.2d 935, 940–42, 186 P.3d 206 (2008), rev. denied 287 Kan. 765 (2008) (noting factors used in earlier cases include fixed site employment and reimbursement for travel, outlining special work-related errand exception); Butera v. Fluor Daniel Constr. Corp., 28 Kan.App.2d 542, 546–47, 18 P.3d 278 (2001)rev. denied 271 Kan. 1035 (2001) (recognizing as factors a fixed site of employment, reimbursement, and existence of benefit to employer or risk to employee); Messenger v. Sage Drilling Co., 9 Kan.App.2d 435, 437–40, 680 P.2d 556 (1984), rev. denied 235 Kan. 1042 (1984) (noting factors to consider include mutual benefit, industry custom, absence of permanent worksite, and travel reimbursement).
Here, the Board made factual findings that Salsberry was travelling to a fixed work site at the time of her accident; that she was not being compensated for that travel; that there was no evidence that Mercy had authorized her use of a company vehicle for such travel; and that the travel provided no additional benefit to Mercy beyond Salsberry simply getting to work. Salsberry's family essentially asks us to revisit these factual findings and reweigh the evidence. This we cannot do. Viewed as a whole, the record contains substantial evidence to support the Board's factual findings. Given those findings, the Board correctly applied K.S.A.2010 Supp. 44–508(f) to bar the claim.
Affirmed.