Opinion
111,988.
06-26-2015
Nathan SMALLEY (Deceased), Appellee, v. SKYY DRILLING and Bituminous Fire and Marine, Appellants.
P. Kelly Donley and Dallas Rakestraw, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, for appellants. Joseph Seiwert, of Snider & Seiwert, L.L.C., of Wichita, for appellee.
P. Kelly Donley and Dallas Rakestraw, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, for appellants.
Joseph Seiwert, of Snider & Seiwert, L.L.C., of Wichita, for appellee.
Before PIERRON, P.J., BUSER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Nathan Smalley died from severe injuries after the vehicle he was riding in struck a tree. Nathan and his brother Trevor were driving to a remote job site for Skyy Drilling. Skyy Drilling and Bituminous Fire & Marine Insurance Company (collectively Skyy) appeal a workers compensation award in favor of Nathan's survivors. Skyy argues that since the cause of the accident was never precisely determined, the Board could not conclude Nathan's death arose out of and in the course of his employment. We find the ALJ and the Workers Compensation Board's (Board) decisions are supported by substantial competent evidence and affirm the award in favor of Nathan's survivors.
Based on the issues raised by Skyy on appeal, the facts leading up to the crash of Trevor's vehicle are, for the most part, not contested. Skyy is in the oil and gas drilling business. Trevor was a drill supervisor, and Nathan worked on Trevor's crew. Ben Harrell, Skyy's field supervisor, asked Trevor and Nathan to work overtime on Saturday, December 3, 2011, because the crew on Rig 5 was shorthanded.
Nathan lived in El Dorado with his common-law wife, Bobbie Cree Myers, and their daughter Harmony Smalley. Nathan drove from El Dorado to Eureka that Saturday to met Trevor at his house. They then began their trip to the drill site about 45 miles away from Eureka. Skyy paid Trevor mileage to transport his crew to the rigs using his own vehicle because Trevor's driving record prohibited Skyy from insuring him. However, neither Trevor nor his crew were paid for their time during transportation.
Trevor and Nathan were traveling on a two-lane, gravel country road in Woodson County. During the trip, Trevor's Jeep veered left off the side of the road, travelled approximately 15 feet into a ditch, and collided with a tree. Nathan was pinned inside the Jeep between the dashboard and the front passenger seat. He died in the hospital 12 days later without ever regaining consciousness. Trevor survived but suffered 11 broken ribs, a gunshot wound to his left leg, a broken femur, and head injuries. Trevor does not remember much about the accident. He had no recollection of the rifle shot or the crash. At the hospital 2 days later, Trevor told Trooper Jeffrey Lockhart that he was “[s]peeding and went off the road,” but that's all he remembered. The parties and witnesses greatly disagree as to what caused Trevor's Jeep to crash.
Deputy Marion Williams responded to the accident. He was unable to communicate with either Trevor or Nathan. After they extricated Trevor and Nathan from the vehicle, Deputy Williams found a rifle with its barrel penetrating 6 inches into the front dashboard. When Deputy Williams removed the rifle, he discovered it had been discharged. Emergency personnel found a bullet hole in the driver's side door. Williams did not find any brake marks, skid marks, or evidence of attempted evasive maneuvers leading up to where the Jeep hit the tree.
Deputy Williams later performed additional investigation on the bullet hole in the jeep. From the driver's side door, a rod inserted in the bullet hole went up at an angle toward the passenger seat. Deputy Williams concluded the path of the bullet indicated that Nathan had the gun on his lap and while driving down the road the gun went off, shooting Trevor in the left leg. After being shot, Trevor then turned toward the pain in his leg and lost control of the vehicle and crashed into the tree.
Trevor testified in his deposition that he kept the rifle on the floorboard in the back of the Jeep or on the back seat. He also said that Nathan was not a hunter and there was no reason why Nathan would have handled the rifle in the front seat. Trevor said he had the rifle in his Jeep most likely because he would use it during free time at the drilling site to make sure the scope on his rifle was “dialed in.” Trevor claimed he did not normally carry a loaded rifle in the Jeep and guessed that he had put a loaded rifle in the Jeep because he was in a hurry.
Robert McKinzie, an accident reconstruction specialist, was hired by Skyy to reconstruct the accident. McKinzie estimated Trevor was still traveling at a speed of 31 to 34 miles per hour when he hit the tree. McKinzie did not believe the entry and exit bullet holes in the door represented a true trajectory because the bullet would have changed direction after striking Trevor's left femur. McKinzie opined that the rifle fired before the Jeep impacted the tree. His opinion was based on the straight geometry of the roadway, no vehicle mechanical defects, no adverse weather conditions, and no other emergency roadway events.
Jay Pfeiffer, another accident reconstruction specialist, was hired by Nathan's survivors. Pfeiffer opined Trevor's rifle was on the back seat, moved forward as the jeep struck the tree, discharged when it hit the passenger seat, and then continued forward lodging 6 inches into the dashboard. Pfeiffer testified the rifle would not have moved forward until the Jeep struck the tree and if the rifle would have been in the front seat or carried across Nathan's lap when the collision occurred, the rifle would have been wedged laterally between Nathan and the dashboard.
Myers filed a workers compensation claim for herself and on behalf of Harmony requesting surviving spouse and dependent benefits. The administrative law judge (ALJ) concluded that Nathan's death arose out of and in the course of his employment with Skyy because it was not due to a “neutral risk” or “personal risk.” The ALJ found the record supported the premise that the abrupt movement of the rifle from the back seat was caused by the speed of the vehicle and its sudden stop as a result of hitting the tree. The ALJ acknowledged the alternative theories but held the testimony of Trevor, Pfeiffer, and Deputy Williams indicated “the most plausible cause of the vehicle leaving the road was speeding and careless driving by Trevor, resulting in a crash and the subsequent firing of the rifle.” The ALJ stated the accidental firing of the rifle was not a neutral risk in the context of the crash or a personal risk and that the rifle shot was not directly responsible for claimant's death. The ALJ concluded the going and coming rule did not apply in this case due to the exception for accidents which occur where the coming and going is an incident of the employment itself. The ALJ awarded Nathan's survivors $5,000 for funeral expenses, $20,000 each to Myers and Harmony, and also weekly death benefits totaling $43,915.52 each to Myers and Harmony. Skyy appealed to the Board. In a lengthy, well-reasoned opinion, based on a similar analysis, the Board affirmed the ALJ's award and the amount of compensation. Skyy appeals.
Standard of Review
The Kansas Judicial Review Act (KJRA) governs our review of cases arising under the Kansas Workers Compensation Act (Act). K.S.A.2014 Supp. 44–556(a) ; see K.S.A.2014 Supp. 77–603(a). At a hearing before the Board, a claimant has the burden of proving his or her right to compensation. K.S.A.2014 Supp. 44–501b(c) ; Messner v. Continental Plastic Containers, 48 Kan.App.2d 731, 751, 298 P.3d 371, rev. denied 297 Kan. 1246 (2013). On appeal to our court, the party claiming error has the burden to show it. See K.S.A.2014 Supp. 77–621(a)(1).
Whether an injury arose out of and in the course of employment is a question of fact, and we review a challenge to the Board's factual findings in light of the record as a whole to determine whether those findings are supported by substantial evidence. See K.S.A.2014 Supp. 77–621(c)(7), (d) ; Scott v. Hughes, 294 Kan. 403, 415–16, 275 P.3d 890 (2012). This analysis requires this court to (1) review evidence both supporting and contradicting the agency's findings, (2) examine the presiding officer's credibility determination, if any, and (3) review the agency's explanation as to why the evidence supports its findings. See K.S.A.2014 77–6271(d); Williams v. Petromark Drilling, 299 Kan. 792, 795, 326 P.3d 1057 (2014). “Substantial evidence” is evidence possessing something of substance and relevant consequence to induce the conclusion that the award was proper or furnishing a basis of fact from which the issue raised could be easily resolved. Ward v. Allen County Hospital, 50 Kan.App.2d 280, 285, 324 P.3d 1122 (2014). This court does 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, 48 Kan.App.2d at 750.
Skyy does not challenge the ALJ's and Board's decision on the going and coming rule. Instead, Skyy argues that because the record fails to identify the cause of the automobile wreck, the Board's conclusion that Nathan's injuries arose out of and in the course of his employment is not supported by substantial competent evidence and should be reversed. Skyy insists there was only speculation by witnesses as to the cause of the accident because: (1) McKenzie eliminated potential causes and opined the rifle discharged, wounded Trevor, and caused the crash but offered no opinion for why the rifle discharged; (2) Pfeiffer testified how the rifle moved from the back to the front of the jeep, discharged, and implanted into the dashboard but did not offer any opinion as to the cause of the accident; (3) Trevor had no recollection of the events that transpired prior to the accident and could not explain the accident.
Without an identified cause of the accident, Skyy argues it is impossible to determine the risk (occupational, personal, neutral, or idiopathic) responsible for Nathan's death. Consequently, Skyy claims Nathan cannot establish that his injury/death arose out of and in the course of his employment and he fails in his burden of proof under K.S.A.2014 Supp. 44–501b(c).
Skyy claims the Board overlooked the lack of causation and simply concluded the critical fact was that Nathan died as a result of an accident while riding in a vehicle driven by his supervisor. Skyy contends this analysis ignores the exceptions contained in K.S.A.2014 Supp. 44–508(f)(3)(A) and relieved Nathan of the burden to prove the death arose out of and in the course of his employment.
Burden of Proof
We first address Skyy's burden of proof allegation. The burden of proof in proceedings under the Act is on the claimant “to establish the claimant's right to an award of compensation and to prove the various conditions on which the claimant's right depends.” K.S.A.2014 Supp. 44–501b(c). Skyy contends this statute requires Nathan to unequivocally prove why Trevor's vehicle left the road in order to satisfy this burden. We disagree.
Interpretation of a statute is a question of law over which appellate courts have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). Therefore, an appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009). The Act is to be “liberally construed only for the purpose of bringing employers and employees within the provisions of the act. The provisions of the workers compensation act shall be applied impartially to both employers and employees in cases arising thereunder.” K.S.A.2014 Supp. 44–501b(a).
Again, K.S.A.2014 Supp. 44–501b(c) provides that the burden of proof in proceedings under the Act is on the claimant to establish the claimant's right to an award of compensation. The trier of fact considers the whole record in determining whether the claimant has satisfied this burden of proof. K.S.A.2014 Supp. 44–501b(c). In K.S.A.2014 Supp. 44–508(h), “burden of proof” is defined as “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....” Significantly, the phrase “arising out of or in the course of employment” does not include injuries which (1) arise as a result of the natural aging process or by normal activities of daily living; (2) arise out of a neutral risk with no particular employment or personal character; (3) arise from a risk personal to the worker; or (4) arise either directly or indirectly from idiopathic causes. K.S.A.2014 Supp. 44–508(f)(3)(A)(i)–(iv).
Skyy asserts that it was Nathan's burden to prove unequivocally why Trevor's vehicle left the road in order to obtain compensation after his death. However, the plain language of the definition of “burden of proof” in K.S.A.2014 Supp. 44–508(h) indicates the legislature did not intend to require a claimant in a workers compensation proceeding to unequivocally prove his or her position. Under K.S.A.2014 Supp. 44–501b(c) and K.S.A.2014 Supp. 44–508(h), a claimant simply must prove that he or she has a right to compensation and the various conditions on which that right depends are “more probably true than not true.” Thus, Nathan did not have to definitively prove that the rifle did not cause the accident; he just had to show that it was more probably true than not true that the rifle was in the back seat and he had no contact with it. It is Skyy's burden to prove the existence of a personal or neutral risk that would deny a finding of a compensable injury.
The main hurdle for Skyy to clear in this case is that we do not reweigh conflicting evidence or opinions. However, our standard of review requires us to examine the conflicting evidence and determine whether it so undermines the Board's decision such that we no longer have confidence in the substantial nature of the evidence. See K.S.A.2014 Supp. 77–621(c)(7), (d) ; Messner, 48 Kan.App.2d at 750. We do not hold this to be the case here.
To the extent the Board's findings are inconsistent with testimony and evidence presented by Skyy, the Board had the authority to make its own independent findings. The Board, as the finder of fact, has “the right and the obligation to weigh the evidence to determine the credibility of witnesses .... and utilize that as a factor in making its decision.” Tovar v. IBP, Inc., 15 Kan.App.2d 782, 785–86, 817 P.2d 212, rev. denied 249 Kan. 778 (1991), superseded on other grounds by statute.
Going and Coming Rule
The application of the going and coming rule was extensively argued before the ALJ and the Board. However, Skyy does not address this argument on appeal. K.S.A.2014 Supp. 44–508(f)(3)(B) provides the statutory authority for the going and coming rule:
“The words ‘arising out of and in the course of employment” 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.”
Examples of workers who would come under the Act notwithstanding the possible application of the going and coming rule in previous cases have included an oil well driller who customarily drove to assemble his crew, an auto mechanic who traveled annually to an examination, and a salesman who traveled to call on customers. See Bell v. Allison Drilling Co., 175 Kan. 441, 264 P.2d 1069 (1953) (driller); Blair v. Shaw, 171 Kan. 524, 233 P.2d 731 (1951) (auto mechanic); Kennedy v. Hull & Dillon Packing Co., 130 Kan. 191, 285 P. 536 (1930) (traveling salesman). The evidence is undisputed that Trevor and Nathan had mobile and changing oil drilling work locations, travel was inherent and integral to their jobs, Trevor was paid mileage, and Trevor's transporting Nathan to the work site provided increased utility or benefit to Skyy of having the driller-supervisor round up the crew to show up and leave work simultaneously.
Although not challenged on appeal, the Board's holding on the going and coming rule provides context for the other questions. The Board discussed a laundry list of mainly oil and gas drilling cases supporting the ALJ's decision that the going and coming rule did not bar Nathan's claim because travel was an integral part of his employment with Skyy. See Scott, 294 Kan. 403 ; Kindel v. Ferco Rental, Inc., 258 Kan. 272, 899 P.2d 1058 (1995) ; Newman v. Bennett, 212 Kan. 562, 512 P.2d 497 (1973) ; LaRue v. Sierra Petroleum Co., 183 Kan.153, 325 P.2d 59 (1958) ; Blair, 171 Kan. 524 ; Mitchell v. Mitchell Drilling Co., 154 Kan. 117, 114 P.2d 841 (1941) ; Craig v. Val Energy, Inc., 47 Kan.App.2d 164, 274 P.3d 650 (2012), rev. denied 297 Kan. 1244 (2013); Halford v. Nowak Construction Co., 39 Kan.App.2d 935, 186 P.3d 206, rev. denied 287 Kan. 765 (2008); Messenger v. Sage Drilling Co., 9 Kan.App.2d 435, 680 P.2d 556, rev. denied 235 Kan. 1042 (1984); Quintana v. H.D. Drilling, No. 106,126, 2012 WL 1759430 (Kan.App.2012) (unpublished opinion).
The Board concluded:
“The facts in this case are similar to Messenger, Scott, Craig and Quintana, in which workers had mobile and changing work locations, i.e., not fixed or permanent work sites. Travel was inherent and integral to their jobs. Unlike the workers in Messenger, Scott and Craig, claimant was not paid for his mileage. While Scott notes this factor was ‘critical’ in Messenger, Quintana noted hourly or mileage pay for passenger workers is not necessary for compensability. Payment for travel was not required for compensability in Halford.
“Claimant was not on a special errand for respondent, on call or responding to an emergency. Trevor's Jeep was not a company vehicle and he was not hauling work equipment. However, the risk of highway travel would be the same for both driver and passenger. As part of his work, claimant was expected to travel with his supervisor, Trevor, which is akin to an employer-provided travel arrangement.
“There is no evidence claimant's travel was personal, as in LaRue, or that a deviation from a work purpose occurred. Instead, the evidence shows Trevor's transporting claimant to the work site provided increased utility or benefit to respondent of having the driller-supervisor round up the crew to show up and leave work simultaneously. Such factor helps establish claimant was already working when traveling to Rig 5 on December 3, 2011, at least based on similarities to Quintana. The claimant was going to work, but he had already assumed his duties. K.S.A.2011 Supp. 44–508(f)(3)(B) does not bar claimant's accidental injury from arising out of and in the course of his employment.” (Emphasis added.)
Idiopathic Causes
The Board refused to address Skyy's claim based on K.S.A.2014 Supp. 44–508(f)(3)(A)(iv), which states an accident or injury which arose either directly or indirectly from idiopathic causes shall not be construed to have arisen out of and in the course of employment. The Board held Skyy did not raise this argument before the ALJ and the Board would not consider it in the appeal. Skyy does not challenge this finding on appeal.
Personal Risk/Neutral Risk
The phrase “arising out of or in the course of employment” does not include injuries from a risk personal to the worker. K.S.A.2014 Supp. 44–508(f)(3)(A)(iii). Where an employment injury is clearly attributable to a personal condition of the employee and no other factors intervene or operate to cause or contribute to the injury, that injury is not compensable. But where an injury results from a preexisting condition and some hazard of employment that overlap, compensation is generally allowed. Bennett v. Wichita Fence Co., 16 Kan.App.2d 458, 460, 824 P.2d 1001, rev. denied 250 Kan. 804 (1992). In Bennett, the claimant suffered from epileptic seizures and had a seizure while driving a company vehicle, blacked out, and hit a tree. A panel of this court held the conditions of the claimant's employment (driving the company vehicle) put him in a position of increased risk. The panel concluded this increased risk provided the required causal connection between his injury and his employment necessary to find the accident arose out of his employment. 16 Kan.App.2d at 460. The panel noted: “While the seizure was personal to claimant, the risk of travel arose out of the employment and the two concurred to produce the injuries.” 16 Kan.App.2d at 460.
Therefore, under Bennett, if Skyy can prove Nathan either had the rifle in the front seat and/or it was more probably true than not that he shot Trevor in the leg, then the death would result from a personal risk/condition and thus would not be compensable. However, the Board found it was more probably true than not that Nathan had no contact with the rifle immediately prior to the accident.
The phrase “arising out of or in the course of employment” also does not include injuries arising from a neutral risk with no particular employment or personal character either. K.S.A.2014 Supp. 44–508(f)(3)(A)(ii). Larson's Workers' Compensation Law explains the precept as a positional risk or but-for logic:
“[T]he nature of the cause of harm may be simply unknown. The commonest example of [this] is the unexplained fall in the course of employment. If an employee falls while walking down the sidewalk or across a level factory floor for no discoverable reason, the injury resembles that from stray bullets and other positional risks in this respect: The particular injury would not have happened if the employee had not been engaged upon an employment errand at the time. In a pure unexplained fall case, there is no way in which an award can be justified as a matter of causation theory except by a recognition that this but-for reasoning satisfies the ‘arising’ requirement.” 1 Larson's Workers' Compensation Law § 7.04[l][a], p. 7–24 (2014).
In Hensley v. Carl Graham Glass, 226 Kan. 256, 258062, 597 P.2d 641 (1979), the Supreme Court found that sniper fire was a compensable neutral risk associated with the employment. Hensley was installing glass around air conditioners on the roof of a parking garage when a sniper began firing shots. Ten individuals, including Hensley, were struck and either killed or injured by the sniper fire. The claimant, Hensley's wife, was awarded workers compensation benefits. The issue on appeal was whether the injury to the decedent arose out of his employment. In deciding that issue, the court in Hensley classified the sniper's assault on Hensley as a neutral risk because “[t]he chance of being struck by sniper fire is not an ordinary risk associated with glass installers nor was the shooting of Hensley motivated by any personal connection with the sniper.” 226 Kan. at 258 ; cf. McCready v. Payless Shoesource, 41 Kan.App.2d 79, 81, 200 P.3d 479 (2009) (“The employer bears the costs of neutral risks. Unexplained falls at work are neutral risks.”).
Regarding the personal or neutral risks, the Board found Pfeiffer's opinion to be the one with the most merit. Pfeiffer's report stated:
“The only conclusion concerning the rifle orientation consistent with the bullet trajectory, the geometric constraints of the vehicle interior and the rifle dimensions is that the rifle was being transported behind the front seats. During the collision with the tree the Jeep was steering left and yawing with its front end going left in a counter-clockwise rotation. When the Jeep struck the tree, the rifle was caused to move towards the front of the Jeep. As the rifle came forward it impacted the passenger seat back and began to rotate through the opening between the two front seats. During this movement the chambered rifle discharged. After discharging the rifle continued to move through the opening between the two seats and ultimately the barrel of the rifle wedged into the dash of the Jeep as the Jeep slowed and the rifle continued through the seat opening.”
The Board agreed with the ALJ's reliance on Pfeiffer's opinion that Nathan's accident and death were not caused by a personal risk or neutral risk. The Board concluded that even if the loaded rifle was a personal risk, the rifle did not belong to Nathan. He did not personally see the rifle as a danger, and there was no evidence he even knew he was traveling in a vehicle containing a loaded weapon. The Board concluded the prevailing cause of Nathan's injuries and death was his supervisor accidentally striking the tree with his jeep, not the rifle discharge. The Board stated:
“There is little certainty in what actually occurred, but the standard is based on a preponderance of the evidence. We do not know the exact position of the rifle prior to its discharge and the true path of the bullet likely changed after it struck Trevor's femur. However, the whole record suggests, more likely than not, that the rifle was in the backseat or back floor board area prior to discharge. It is unlikely the 44 1/2” rifle, prior to the collision with the tree, was in a position where it would be lined up to shoot Trevor in the leg at a downward angle, with the butt of the gun near or behind what should be the front passenger seat headrest. There is no credible evidence claimant was holding the rifle prior to it firing. Had the rifle been in the front seat area, its final position likely would have been laterally across the seat, between one or both Smalley brothers and the front dash, still pointing at Trevor, but that did not happen. The Board concludes the rifle was probably in the back seat before the collision with the tree and the collision propelled it forward and likely caused it to fire. We do not think the rifle barrel would have ended up speared about six inches into the front dash with the rifle butt wedged against the front seat had it been in the front seat area or was being handled by either Smalley brother.
“While there is much that we do not know, one inescapable conclusion is that claimant died from injuries sustained when his supervisor wrecked his Jeep into a tree. Such event is not a personal risk or a neutral risk. Similarly, how fast the Jeep was traveling is relevant to analyzing the accident and potential causes. However, no matter the actual speed, the Jeep was traveling fast enough to be demolished, seriously injure Trevor and injure claimant severely enough to eventually kill him.
Several cases have similar fact patterns where the court determined passengers died in a work-related vehicle accident and compensation was awarded.
In Blair, 171 Kan. 524, an auto mechanic employed by a Chevrolet dealership died in an automobile accident on the highway while making the return trip to Fort Scott from Pittsburg, where he and his coworkers had attended an annual auto mechanics examination. The issue was whether the employee's death arose out of and in the course of his employment. The court concluded that the annual trip to take the exam was contemplated by the employment and had become so expected as to become incidental to the employment within the meaning of the Act. 171 Kan. at 528. The court noted: “That [trip] involved travel by private automobile—going and returning—one project, so to speak, and included the normal traffic hazards inherent in such an undertaking.” 171 Kan. at 529.
In Kindel, 258 Kan. 272, Kindel and other employees were expected to live out of town during the week and were transported to a remote job site in a company pickup truck driven by a company supervisor. On the evening in question, Kindel and several other employees went to a strip club for a few hours after work. Kindel was killed in an accident while being driven home in the company truck by his supervisor, who was inebriated. The Board determined that Kindel's death arose out of and in the course of his employment, noting that the employee's trip to and from Sabetha, absent the detour, would have been considered part of Kindel's employment. Consequently, the Board found that the death resulted from the combined personal and work-related risks. The Kindel court applied the substantial competent evidence standard of review and held there was substantial competent evidence to support the Board's finding that Kindel's death occurred during the course of his employment. The Kindel court addressed the passenger aspect of awarding compensation:
“Kindel was a passenger and not the driver. He was being transported home after completion of his duties. Despite approximately four hours at the Outer Limits, the distance of the deviation was less than one quarter of a mile. Kindel was killed after resuming the route home. Under the facts, even though the worker was intoxicated, as a passenger in his employer's vehicle, he was not committing a violation of Kansas law. Kindel was killed while engaging in an activity contemplated by his employer while traveling on a public interstate highway. The fact he had been drinking has no legal bearing on the present compensation determination since there was no proof that the accident or Kindel's death resulted from Kindel's intoxication.” (Emphasis added.) 258 Kan. at 284.
In the recent Court of Appeals case of Quintana, 2012 WL 1759430, a drilling crew member was injured in an automobile accident that occurred on his way home from a drill site. The Quintana court held that the inherent-travel exception was applicable. In doing so, the court found Messenger to be analogous:
“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. [Citation omitted.] 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.” 2012 WL 1759430, at *7 (Emphasis added.)
As emphasized by the courts in Blair, Kindel, and Quintana, the exception to the going and coming rule extends to the normal risks involved in completing the task or travel, and the required perspective is to view the task or trip as unitary or indivisible, meaning an injury during any aspect thereof is compensable. See Kindel, 258 Kan. at 284 ; Blair, 171 Kan. at 529 ; Quintana, 2012 WL 1759430, at *6–7.
Viewing the evidence in light of the record as a whole, we find substantial competent evidence in the record to support the Board's finding that Nathan's death was the result of a work-related accident and not excepted from compensation as a personal or neutral risk. In so finding, we acknowledge there was some relevant evidence detracting from such a finding. But given the substance of the testimony in the record that supports the Board's finding, we simply cannot say that the finding was so undermined by other evidence that it is insufficient to support the Board's conclusion. See Olds–Carter v. Lakeshore Farms, Inc., 45 Kan.App.2d 390, 394–95, 250 P.3d 825 (2011).
Affirmed.