Opinion
No. 108,609.
2013-08-23
Robert W. CLAUNCH, Appellant v. IPARAMETRICS AND TWIN CITY FIRE INSURANCE COMPANY, Appellees.
Appeal from Workers Compensation Board. Jeff K. Cooper and Gary M. Peterson, of Topeka, for appellant. Timothy A. Emerson, of Law Offices of Steven G. Piland, of Overland Park, for appellees.
Appeal from Workers Compensation Board.
Jeff K. Cooper and Gary M. Peterson, of Topeka, for appellant. Timothy A. Emerson, of Law Offices of Steven G. Piland, of Overland Park, for appellees.
Before PIERRON, P.J., McANANY and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Robert W. Claunch appeals from the denial of his claim for benefits by the Workers Compensation Board (Board). The Board affirmed the administrative law judge's (ALJ) determination that Claunch failed to establish that his injuries arose out of his employment.
Claunch was age 79 and lived in Louisiana at the time of his injuries. He was an engineer and operated a consulting firm there called Southeast Applied Research. Iparametrics hired him to do consulting work in the Coffeyville area. He claimed that he suffered heat stroke while engaged in this consulting work, causing him to momentarily pass out twice, resulting in falls in which he injured his hip and low back.
Claunch's medical history included a heart attack in 1981 and quadruple bypass surgery in 1999. He had experienced back problems from the mid 1990s. He also suffered from hypertension. Right before he began work with Iparametrics, he stopped taking his blood pressure medication.
Claunch had experienced dizzy spells in the past. He experienced snycopal episodes in June 2006 when he ran out of his medication and again in August 2006. At some point he fell out of bed during an episode of dizziness. He was hospitalized in June 2006 after that syncopal episode. In the August 2006 incident involved in this appeal, Claunch expressed complaints that he was feeling dizzy, sick to his stomach, and unstable.
Claunch's work for Iparametrics involved working with FEMA as an engineering consultant for the purpose of reviewing flood-damaged sewage treatment plants located in and around Coffeyville.
On Monday, August 7, 2007, Claunch flew from New Orleans to Tulsa, where he rented a car and drove to Independence, Kansas. Claunch's flight was “horrendous” and he had a “tough journey.” The following day Claunch and the FEMA representative spent 2 to 3 hours inspecting sewage treatment plants. The heat index was 106 degrees that day, and Claunch was sweating and did not have any water to drink. The FEMA representative told Claunch that he did not look like he was feeling well.
On Wednesday, August 9, 2007, Claunch reported to the FEMA headquarters as directed by Iparametrics. He worked on his inspection report in an air-conditioned office until noon, when he went to shop at Walmart. Claunch did not feel well, so he went back to his hotel and rested for an hour. When he returned to the FEMA office, he momentarily lost consciousness and fell outside the office door. He was helped into the office, where he drank some water and worked the rest of the afternoon. When he left the office at around 6 p.m., he again became dizzy and fell on the way to his car. He was taken to the emergency room, where he stayed overnight. His X-rays were negative. Claunch was treated for a urinary tract infection and released.
Later, Claunch woke up in his hotel room and could not get out of bed. He called for an ambulance and returned to the hospital. Claunch was diagnosed with a fractured hip and underwent surgery.
More than 2 years later, Claunch underwent lumbar surgery in Mississippi. Claunch reported that he was unsure whether his lower back problems resulted from his August 2007 falls.
Claunch was examined by Dr. Michael J. Poppa, D.O., and Dr. James C. Butler, M.D., in connection with this workers compensation claim. Neither Dr. Poppa nor Dr. Butler identified anything in Claunch's medical records indicating that he suffered heat stroke on the day before his falls.
Claunch's lawyer arranged for Dr. Poppa to examine Claunch. Claunch told Dr. Poppa that he was exposed to heat greater than 100 degrees, became dizzy, and fell. Dr. Poppa opined that Claunch's falls were a direct and proximate result of his exposure to the heat during the course of his employment. Though Dr. Poppa did not initially realize that the heat exposure and the falls were on different days, when provided the correct timeline his causation opinion remained unchanged.
Dr. Poppa was not aware that Claunch had experienced episodes of dizziness in the past, although he acknowledged that heart disease and changes in blood pressure medication could contribute to cause dizziness. When apprised of Claunch's past episodes of dizziness, Dr. Poppa declined to change his causation opinions.
Dr. Butler examined Claunch at the request of Iparametrics. Dr. Butler said he would not expect that exposure to the heat for approximately 2 hours on one day would lead to dizziness the next day. Dr. Butler was aware of Claunch's history of syncopal episodes and noted that a change in blood pressure medication could lead to dizziness. Claunch changed his blood pressure medication regimen shortly before coming to Kansas.
Based on Claunch's “clearly established history of syncopal episodes as well as dizziness,” Dr. Butler found no causal relationship between the heat exposure and the falls. He opined that when a patient has a clear history of syncopal episodes, it was more likely that his falls were not related to heat exposure.
Both the ALJ and the Board ruled that Claunch's injuries did not arise out of his employment because Claunch failed to sustain his burden of proving that his falls were the result of his exposure to the heat during the course of his employment. The Board questioned the credibility of Dr. Poppa's medical opinion because he was provided with an inaccurate history of Claunch's prior health problems as well as an inaccurate history of the events leading up to the falls. The Board concluded that Claunch's falls were more likely caused by a personal condition and therefore did not arise out of his employment with Iparametrics.
Claunch appeals.
On appeal we review the Board's decision under the Kansas Judicial Review Act. K.S.A. 77–601 et seq ;K.S.A.2012 Supp. 44–556(a); see Redd v. Kansas Truck Center, 291 Kan. 176, Syl. ¶ 1, 239 P.3d 66 (2010). We have unlimited review over whether an injury is compensable. Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 587, 257 P.3d 255 (2011). But whether an injury arose out of and in the course of employment is a question of fact. Scott v. Hughes, 294 Kan. 403, 415–16, 275 P.3d 890 (2012).
Claunch had the burden to prove his right to an award of compensation under the Workers Compensation Act. See K.S.A.2012 Supp. 44–501b(c); Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 819–20, 104 P.3d 378 (2005).
Most of the facts surrounding Claunch's injuries are undisputed. We review de novo whether the Board erroneously applied the law to those undisputed facts. Tyler v. Goodyear Tire & Rubber Co., 43 Kan.App.2d 386, 388, 224 P.3d 1197 (2010). With respect to any controverted facts, we review the Board's factual determinations to see if they are “supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole.” K.S.A.2012 Supp. 77–621(c)(7), (d); Herrerra–Gallegos v. H & H Delivery Service, Inc., 42 Kan.App.2d 360, 362, 212 P.3d 239 (2009). Under this standard of review, 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 the court no longer has confidence in the substantial nature of the evidence. 42 Kan.App.2d at 363.
K.S.A.2012 Supp. 44–501b(b) imposes liability on the employer to pay workers compensation benefits for an employee's accidental injuries “arising out of and in the course of employment.” Here, the only issue is whether Claunch's injuries arose out of his employment. To arise out of employment requires a causal connection between the accidental injury and the conditions under which the work was required to be performed. Rinke v. Bank of America, 282 Kan. 746, 752, 148 P.3d 553 (2006). An injury arises out of employment “ ‘if it arises out of the nature, conditions, obligations, and incidents of the employment.’ “ Stutzman v. City of Lenexa, 33 Kan.App.2d 160, 164, 99 P.3d 145 (2004), rev. denied 279 Kan. 1010 (2005).
As the court detailed in Hensley v. Carl Graham Glass, 226 Kan. 256, 258, 597 P.2d 641 (1979), there are three general categories of workplace risks:
(1) Risks distinctly associated with the job. Accidental injuries attributable to these risks are generally compensable.
(2) Risks which are personal to the worker. Accidental injuries attributable to these risks do not arise out of employment and are not compensable. See Martin v. U.S.D. No. 233, 5 Kan.App.2d 298, 299, 615 P.2d 168 (1980)
(3) Neutral risks which have no particular employment or personal character. Whether the claimant is entitled to compensation for accidental injuries attributable to these risks is determined based on the facts surrounding the injury.
Here, both the ALJ and the Board found that Claunch's injuries were of the second category and not compensable under the Act. The Board found that the likely cause of Claunch's falls was his preexisting medical history of “falls, dizziness and at least one syncopal episode.” Thus, “the falls were the result of a condition personal to claimant.”
Claunch relies on Dial v. C.V. Dome Co., 213 Kan. 262, 515 P.2d 1046 (1973), and Makalous v. Kansas State Highway Commission, 222 Kan. 477, 565 P.2d 254 (1977), for support.
In Dial, the claimant suffered a heat-related cerebral vascular accident. The claimant had a preexisting condition that contributed to his injury. The evidence established that the claimant's employment subjected him to a greater hazard from heat than “ ‘that to which he otherwise would be exposed.” ‘ 213 Kan. at 266–67. The court held that heat can be the causative factor of a compensable injury. 213 Kan. at 267.
In Makalous, the court affirmed the district court and observed:
“[H]eat and cold in the working environment are recognized as external forces which can cause injury. Heat can cause heatstroke. Cold can cause frostbite and, after examining the record in the present case, there is expert medical evidence available that extreme cold coupled with outdoor exertion can cause a heart attack. Here, the trial court held that extreme cold was the cause which precipitated the heart attack.” 222 Kan. at 483.
In Dial, the medical evidence clearly established a causative link between the heat in the claimant's work environment and the resulting injury. In Makalous, the medical testimony proved that the claimant's exposure to external forces—the cold and windy weather—during the course of his employment caused the resulting injury. But in the case now before us, there was a clear conflict in the medical testimony, and the Board found that Dr. Poppa's testimony on causation lacked credibility. We do not reweigh that credibility determination by the Board.
In Taber v. Tole Landscape Co., 181 Kan. 616, 313 P.2d 290 (1957), the claimant suffered heat stroke after trimming trees in direct sunlight on an extremely hot day. The Supreme Court found that the injury arose out of the claimant's employment because the work exposed him to a greater risk in the heat which was “not common to the neighborhood.” 181 Kan. at 620–21, The court held:
“With respect to an injury sustained by a workman resulting from exposure to natural elements, such as excessive heat, the general rule is that if the nature of his employment, that is, the work he is doing, subjects him to a greater hazard or risk from the elements than that to which he otherwise would be exposed, so that there may be said to be a causal connection between the conditions under which the work is performed and the resulting injury, the injury is deemed to be an accidental injury arising out of the employment within the meaning of the workmen's compensation act.” (Emphasis added.) 181 Kan. 616, Syl. ¶ 1.
Thus, a heat-related injury may be covered under the Act if the evidence establishes a causal connection between it and the accidental injury. There was no credible evidence that established such a link in Claunch's case. Claunch attributes his falls to a diagnosis of a heat stroke, but Claunch was never diagnosed with heat stroke. After the first fall, Claunch was taken to the hospital and treated for a urinary tract infection. There was no diagnosis of a heat-related illness.
The Board's conclusion that Claunch's falls were more likely the result of conditions personal to him rather than exposure to the heat is supported by substantial competent evidence in the record. Claunch has failed to satisfy the burden of showing that he sustained personal injury by an accident which arose out of his employment with Iparametrics.
Affirmed.