Graber v. Dillon Companies , 52 Kan. App. 2d 786 ( 2016 )

No. 113,412
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
TERRILL GRABER,
Appellant,
v.
DILLON COMPANIES,
Appellees.
SYLLABUS BY THE COURT
The term "idiopathic" as used in the Kansas Workers Compensation Act is
analyzed and applied.
Appeal from Workers Compensation Board. Opinion filed June 24, 2016. Reversed and
remanded with directions.
Matthew L. Bretz, of Bretz & Young, L.L.C., of Hutchinson, and Jan L. Fisher, of McCullough,
Wareheim & LaBunker, of Topeka, for appellant.
Dallas L. Rakestraw, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, for
appellees.
Before STANDRIDGE, P.J., PIERRON, J., and JOHNSON, S.J.
PIERRON, J.: Terrill Graber began working for Jackson's Dairy, a subsidiary of
Dillon Companies, Inc. (Dillon's), in Hutchinson, in approximately 2009. He usually
worked Monday through Friday 3 p.m. to 11:30 p.m. His main task was to load semi-
trucks with a forklift. He was also required to attend periodic safety meetings.
In 1998, Graber underwent a kidney transplant and continued to take anti-rejection
medicine. After the transplant, Graber developed diabetes. Graber took insulin and other
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medication and checked his blood sugar daily. He had never had fainting spells or been in
the hospital because of his diabetes. Graber also took medicine for high blood pressure.
Graber had never had any complications from his blood pressure medications.
On Sunday, August 21, 2011, Graber attended a mandatory safety meeting at
Dillon's Hutchinson offices. The offices were in a separate building about a half block
east of Jackson's Dairy. Graber usually did not work on Sunday, so Jackson's Dairy paid
him overtime for attending the meeting. The meeting began at 9 a.m. and lasted until
approximately 2:30 p.m.
The meeting took place on the second floor of the office building. To reach the
second floor, Graber and the other attendees had to climb a flight of stairs. The stairs
were concrete and covered with a plastic, diamond-patterned, anti-skid coating. On both
sides of the stairs were metal handrails.
Before going to the safety meeting, Graber had a cup and a half of coffee with
sweetener, but did not eat. He usually tested his blood sugar in the morning, but he did
not do so that morning because he was running late. The meeting provided food for the
attendees. Graber had two glazed donuts and a soda for breakfast. He had a sandwich, a
bag of chips, and another soda for lunch. The attendees also received three 15-minute
breaks throughout the meeting. During each break, Graber went downstairs and outside to
smoke a cigarette.
When the meeting ended, Graber walked down the hall and used the restroom. The
restroom was about 20 to 30 feet from the stairs. Graber remembered walking into the
restroom, relieving himself, and washing his hands. He did not remember leaving the
restroom. The next thing he recalled was being loaded onto a Life Watch helicopter. He
later learned that he had fallen down the stairs. At the Promise Regional Medical Center
emergency room, doctors diagnosed Graber with a traumatic brain injury with loss of
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consciousness, a right parietal cortex hemorrhagic contusion, a probable subarachnoid
hemorrhage, and a C1 cervical fracture.
Graber had three neck surgeries after the fall. After his first surgery, he wore a
halo for 11 weeks. His second surgery placed rods in the back of his neck because his
bones were not fusing. His third surgery replaced a rod broken by a stress fracture. At the
time of the regular hearing, Graber had another broken rod in his neck. His doctor had
suggested a fourth surgery, but Graber was reluctant to go through with it because the
prior surgeries had failed.
Due to his injuries and his inability to work, Jackson's Dairy eventually terminated
Graber's employment on January 1, 2013, and ended his health benefits on January 31,
2013.
As part of the litigation within the Kansas Department of Labor, Division of
Workers Compensation, several experts examined Graber. Dr. Paul Stein, a board
certified neurological surgeon, reviewed Graber's medical records, obtained a subjective
medical history, and performed a physical examination of Graber at the request of
Dillon's. Dr. Stein diagnosed Graber with a fracture of his C1 vertebra and stenosis of his
C3 and C4 vertebrae. He concluded Graber's fall was only a prevailing factor in the
fracture, however, and not the stenosis. Dr. Stein gave Graber a 25% whole body
impairment with permanent work restrictions due to the fall. He assessed Graber had a
50% task loss based on a list of possible job tasks, but he felt Graber could work if he
could find a job within those restrictions. Dr. Stein also testified stairs are more
hazardous than walkways, and there is a greater risk of injury when falling down stairs.
Dr. George Fluter, a medical doctor, also performed an examination on Graber. He
concluded Graber had suffered a work-related injury resulting in a fracture of his first
cervical vertebra, traumatic brain injury with loss of consciousness, right parietal cortex
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contusion, and probable subarachnoid hemorrhage. He believed the fall was the
predominant factor causing Graber's injuries, but he did not believe Graber's diabetes had
caused the fall. In Dr. Fluter's opinion, Graber was not realistically employable and
would need medical care for the rest of his life.
John Troyer, a fire captain in Sedgwick County and owner of a company that
provides training on OSHA requirements, also testified at the regular hearing before the
administrative law judge (ALJ). Captain Troyer gave the presentation at the safety
meeting on August 21, 2011. During the presentation, Captain Troyer specifically
covered safety issues related to stairs. He testified stairs are potentially a safety risk
because people fall on them all the time. The elevation change increases the risk of
falling, and any elevation change increases the chance of injury. According to Captain
Troyer, an employee required to go up and down stairs is at a greater risk of falling and
injuring himself or herself. Even properly built or maintained stairs still present a risk.
Graber's case proceeded to a preliminary hearing before a special administrative
law judge (SALJ). The SALJ found Graber's accident was the prevailing factor in his
injury and the injury arose out of and in the course of his employment. He reasoned the
risk of falling down stairs was a special risk or hazard to which Graber was not normally
exposed and to which the general public was exposed. This gave his unexplained fall,
which normally would have been a neutral risk, a particular employment character.
In a review of the preliminary hearing order, Judge Gary Korte, acting on behalf of
the Board, found Graber's injury did not arise out of and in the course of his employment.
According to Judge Korte, "idiopathic" meant "of unknown origin or cause, for which no
etiology is known." The Board believed that because the cause of Graber's fall was
unexplained, it arose out of an idiopathic cause. After the 2011 amendments to the
Kansas Workers Compensation Act (KWCA), injuries arising out of idiopathic causes
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were no longer within the meaning of "arising out of and in the course of employment."
Thus, Graber's injuries were not compensable.
Graber proceeded to litigate his claim to an award. The SALJ again found Graber's
injuries were compensable following reasoning similar to his preliminary hearing order.
On appeal, the Board again reversed the decision. The Board found Graber's injury was
due to an unexplained fall. Unexplained accidents fell within the idiopathic cause
exclusion in the amended KWCA, making Graber's injury noncompensable. The stairs
also did not qualify as a special risk or hazard under the coming and going rule because
they were not defective in any way.
In a concurring opinion, Judge John Carpinelli noted that prior cases established
that any injury which occurred during a special work-related trip was compensable.
Graber's meeting was arguably a work-related trip because he had to go to an off-site
location for a mandatory meeting. These cases were no longer applicable, though,
because they had been decided before the 2011 amendments to the KWCA. Furthermore,
even if these cases were applicable, the cause of Graber's fall was unknown. While the
evidence demonstrated the stairs created an increased risk, it did not show conclusively
the stairs were the cause of the fall. Thus, Graber's injury was not compensable. Graber
appeals.
We reverse and remand for further proceedings consistent with this opinion.
While Graber uses several arguments in defense of his position in his first brief, in
his reply brief he concedes the sole issue before us is the meaning of idiopathic in K.S.A.
2015 Supp. 44-508(f)(3)(A)(iv). Graber argues the Board erred in defining idiopathic as
"of unknown cause" instead of "as personal to the claimant." As such, the Board
incorrectly found Graber's injuries did not arise out of his employment due to idiopathic
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causes. Dillon's argues the rules of statutory construction lead to the result that idiopathic
means of unknown cause, thus the Board's decision is correct.
The Kansas Judicial Review Act (KJRA) governs the review of cases arising
under the KWCA. K.S.A. 2015 Supp. 44-556(a). Under KJRA, an appellate court may
grant relief if it determines that the Board "has erroneously interpreted or applied the
law." K.S.A. 2015 Supp. 77-621(c)(4). Statutory interpretation is a question of law over
which appellate courts have unlimited review. Golden Rule Ins. Co. v. Tomlinson, 300
Kan. 944, 955, 335 P.3d 1178 (2014). Courts should liberally construe the provisions of
the KWCA "only for the purpose of bringing employers and employees within the
provisions of the [KWCA]." The provisions of the KWCA should be applied impartially
to both employers and employees. K.S.A. 2015 Supp. 44-501b. Appellate courts do not
owe deference to the ALJ's or the Board's interpretation of the given statute. Douglas v.
Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013).
Under the KWCA, an injury is compensable only if it arises out of and in the
course of employment. K.S.A. 2015 Supp. 44-508(f)(2). An accidental injury arises out
of employment only if (1) "[t]here is a causal connection between the conditions under
which the work is required to be performed and the resulting accident," and (2) "the
accident is the prevailing factor causing the injury, medical condition, and resulting
disability or impairment." K.S.A. 2015 Supp. 44-508(f)(2)(B). Specifically excluded
from arising out of employment are accidents or injuries which arise out of a neutral risk
with no particular employment or personal character, a personal risk, or directly or
indirectly from an idiopathic cause. K.S.A. 2015 Supp. 44-508(3)(A).
The primary issue in this case is whether Graber's injury fell within the definition
of idiopathic in K.S.A. 2015 Supp. 44-508(3)(A)(iv) and is thus excluded from
compensation under the KWCA. The KWCA, for some reason, does not define
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idiopathic. Dillon's does not contest that Graber's injury occurred within the course of his
employment.
The key to this case is the definition of "idiopathic" in the context of the KWCA.
We reverse the finding of the Board that the injury here arose out of an idiopathic cause.
We therefore reverse and remand for further proceedings.
Somehow, Kansas caselaw has not explicitly defined idiopathic within the context
of our workers compensation law. We believe it will be of assistance to examine a
number of Kansas cases where the word idiopathic has been used and also check
dictionary definitions of the word.
Webster's Unabridged Third New International Dictionary 1123 (1993) defines
idiopathic as being peculiar to the individual or arising spontaneously or from an obscure
or unknown cause. The Merriam-Webster Dictionary (Online ed. 2016) defines idiopathic
as arising spontaneously or from an obscure or unknown cause or as peculiar to the
individual. The Concise Oxford English Dictionary 705 (10th ed. rev. 2002) defines
idiopathic as it applies to medicine as a disease or condition which arises spontaneously
or for which the cause is unknown.
Unfortunately these definitions do not resolve the question of what idiopathic
means.
State v. Massey, 242 Kan. 252, 747 P.2d 802 (1987), apparently the earliest case to
use the word in Kansas, was a criminal case in which the defendant raised a defense of
unconsciousness due to epileptic seizures. The Massey court discussed the many form of
epilepsy, noting "most . . . are idiopathic, meaning of unknown cause." 242 Kan. at 258.
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In Kuxhausen v. Tillman Partners, 40 Kan. App. 2d 930, 197 P.3d 859 (2008),
aff'd 291 Kan. 314, 241 P.3d 75 (2010), a negligence case, the plaintiff claimed she had
developed a chemical sensitivity from exposure to epoxy-based paint. Some medical
professionals referred to the condition as idiopathic environmental intolerance. The
Kuxhausen court stated that "[d]octors use the term idiopathic to refer to something for
which the cause is unknown." 40 Kan. App. 2d at 935.
Of course, neither of the cases are workers compensation cases.
In Bennett v. Wichita Fence Co., 16 Kan. App. 2d 458, 824 P.2d 1001, rev. denied
250 Kan. 804 (1992), Bennett was sent by his employer—Wichita Fence Co.—in a
company vehicle to make a delivery. On the return trip, Bennett suffered an epileptic
seizure, blacked out, and hit a tree. Wichita Fence Co. was aware of Bennett's condition,
having filed a "notice of handicapped employee."
In the initial compensation hearing, the ALJ found that Bennett's injuries arose out
of his employment. On review the Board ruled that Bennett had not established the injury
had arisen out of his employment, a finding that the district court affirmed.
There was no dispute on appeal that the accident occurred and the injuries were
sustained in the course of employment. The only question was whether the injuries,
following an epileptic seizure, arose out of the employment. Citing precedent from other
states, the Bennett court noted that Bennett's employment—driving a company vehicle---
placed Bennett in a position of increased risk. The increased risk provided the necessary
causal connection between his injury and his employment. The court held the accident
arose "out of" his employment. 16 Kan. App. 2d at 460. The court found that where an
employment injury is clearly attributable to a personal (idiopathic) condition and no other
factors intervene or operate to cause or contribute to the injury, no award would be
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granted under the law at that time. Since the driving of the vehicle contributed to the
injury, compensation was awarded. 16 Kan. App. 2d at 460.
In Bennett, this court held:
"Where an employment injury is clearly attributable to a personal (idiopathic) condition
of the employee, and no other factors intervene or operate to cause or contribute to the
injury, no award is granted. [Citation omitted.] But where an injury results from the
concurrence of some preexisting idiopathic condition and some hazard of employment,
compensation is generally allowed." 16 Kan. App. 2d at 460.
At least eight other Kansas Court of Appeals cases have used idiopathic and
personal interchangeably in this way regarding the rule established in Bennett. See, e.g.,
Anderson v. Scarlett Auto Interiors, 31 Kan. App. 2d 5, 11, 61 P.3d 81 (2002); Miller v.
Board of Trustees of KPERS, 21 Kan. App. 2d 315, 320-21, 898 P.2d 1188 (1995); Hirsi
v. Tyson Fresh Meats, Inc., No. 103,760, 2011 WL 169176, at *6 (Kan. App. 2011); Cox
v. Country Haven, No. 100,533, 2009 WL 1591693, at *3 (Kan. App. 2009) (unpublished
opinion); Lietzke v. True-Circle Aerospace, No. 98,463, 2008 WL 2369908, at *9 (Kan.
App. 2008) (unpublished opinion); Heller v. Conagra Foods, Inc., No. 96,990, 2007 WL
1814293, at *5 (Kan. App. 2007) (unpublished opinion); Prue v. Asplundh Tree Expert
Co., No. 95,139, 2006 WL 2129211, at *3 (Kan. App. 2006) (unpublished opinion);
Bissen v. Hy-Vee Food Stores, No. 92,457, 2004 WL 3048953, at *3 (Kan. App. 2004)
(unpublished opinion).
The Board has defined idiopathic as both personal and of unknown cause. When
defining idiopathic as personal, the Board has relied on Bennett. See, e.g., Roush v. Rent-
A-Center, Inc., Docket No. 1,062,983, 2013 WL 1876358, at *2-3 (Kan. Work. Comp.
App. Bd. 2013). When defining idiopathic as of unknown cause, the Board has relied on
two Kansas court cases. See Klingsporn v. First Student Management, LLC, Docket No.
1,071,769, 2015 WL 1524538, at *8 (Kan. Work. Comp. App. Bd. 2015) (citing
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Kuxhausen, 40 Kan. App. 2d 930); Stoker v. Dustrol, Inc., Docket No. 1,065,785, 2013
WL 6920092, at *4 (Kan. Work. Comp. App. Bd. 2013) (citing Massey, 242 Kan. at
258).
A number of other states also define idiopathic as a personal or innate condition as
the Kansas Court of Appeals did in Bennett. The Supreme Court of Missouri defined
idiopathic as "peculiar to the individual; innate" in the context of workers compensation
in 1993. Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 527 n.3 (Mo. 1993). In
2005, Missouri reformed its Workers Compensation Act to exclude idiopathic injuries,
adopting language similar to the Kansas statute at issue. See Mo. Rev. Stat. §
287.020.3(3)(2013). ("An injury resulting directly or indirectly from idiopathic causes is
not compensable."). Missouri Court of Appeals cases since the reform have held the prior
definition of idiopathic still applies under the new statute. See Taylor v. Contract
Freighters, Inc., 315 S.W.3d 379, 381 (Mo. App. 2010); Ahern v. P & H, LLC, 254
S.W.3d 129, 132-33 (Mo. App. 2008). Other states have similarly defined idiopathic in
caselaw. See, e.g., City of Brighton v. Rodriguez, 318 P.3d 496, 503 (Colo. 2014) (noting
personal risks include preexisting idiopathic illnesses and medical conditions); Lodgsdon
v. ISCO Co., 260 Neb. 624, 628, 618 N.W.2d 667 (2013) (stating one category of risk
causing injury to employees is "personal to the claimant, e.g., idiopathic causes").
Several major treatises also define idiopathic as personal or innate. The leading
treatise in the workers compensation field, Larson's Workers' Compensation Law, defines
idiopathic injuries as:
"Generally understood within the workers' compensation framework to mean
'self-originated,' these injuries usually spring from a personal risk of the claimant, e.g.,
heart disease, epilepsy, and the like. Such injuries are to be contrasted with those that are
truly 'unexplained.' The latter generally are considered arising from a neutral risk . . . .
Idiopathic injuries are said to have arisen from a personal risk. Idiopathic injuries,
therefore, often are not compensable." Lawson's Workers' Compensation Glossary,
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LEXISNEXIS LEGAL NEWSROOM, http://www.lexisnexis.com/legalnewsroom/workers-
compensation/b/worker-comp-glossary/archive/2012/11/11/larson-s-workers-
compensation-glossary.aspx#sthash.PN4fIamX.dpuf (last updated November 11, 2012).
Larson's also specifically distinguishes between unexplained falls and idiopathic falls,
i.e., falls caused by a condition personal to the claimant. See 1 Larson's Workers'
Compensation Law § 7.04[1][b] (2015). Corpus Juris Secundum and American
Jurisprudence also define idiopathic as a personal condition. 99 C.J.S. Workers'
Compensation § 421 (defining idiopathic as "personal in nature, or peculiar to
individual"); 82 Am. Jur. 2d Workers' Compensation § 338, p. 370 (defining idiopathic as
"personal to claimant").
Dillon's argues defining idiopathic as personal to the claimant would make the
provision at issue redundant. Courts must construe statutes to avoid unreasonable results
as well as redundancy. State v. Keel, 302 Kan. 560, 574, 357 P.3d 251 (2015), cert.
denied 136 S. Ct. 865 (2016). If idiopathic were defined as personal, it appears it would
overlap with the exception that injuries arising out of personal risk are not covered under
the Act. K.S.A. 2015 Supp. 44-508(f)(3)(A)(iii). If idiopathic were defined as of
unknown cause, however, then an idiopathic fall would be the same as an unexplained
fall. Kansas courts have already held that unexplained falls are neutral risks. McCready v.
Payless Shoesource, 41 Kan. App. 2d 79, 92, 200 P.3d 479 (2009). Defining idiopathic as
unknown or unexplained, then, would overlap with the provisions excluding neutral risks.
See K.S.A. 2015 Supp. 44-508(f)(3)(A)(ii). Either way, the provision appears redundant.
Graber resolves this issue by arguing the legislature enacted K.S.A. 2015 Supp.
44-508(f)(3)(A)(iv) to specifically abrogate the "concurrence rule" with regard to
preexisting (or idiopathic) conditions. The concurrence rule, as stated in Bennett, holds
that when a preexisting condition combines with a work-related risk to create an injury,
the injury is compensable. 16 Kan. App. 2d at 460. Thus, Graber contends, under the
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amended Act, an injury that arises solely out of a personal risk is not compensable.
Additionally, an accident that arises out of the concurrence of a personal health condition
or risk and a work-related risk is also not compensable. This is the most congruous
reading of this provision and supports defining idiopathic as personal to the claimant.
The overwhelming weight of authority shows idiopathic, within the context of
workers compensation law, is defined as personal or innate to the claimant. Because the
Board incorrectly defined idiopathic as of unknown cause, it misapplied K.S.A. 2015
Supp. 44-508(f)(3)(A)(iv). Thus, the Board erred in denying Graber compensation
because his injury arose either directly or indirectly from an idiopathic cause.
Neutral Risks and Increased-Danger Rule
Graber's injury most likely arose from a neutral risk. Neutral risks are generally
defined as risks with no particular employment or personal characteristic. K.S.A. 2015
Supp. 44-508(f)(3)(A)(ii); see Hensley v. Carl Graham Glass, 226 Kan. 256, 258, 597
P.2d 641 (1979). In cases prior to the 2011 amendments, Kansas courts have held
unexplained falls are a neutral risk. McCready, 41 Kan. App. 2d at 92. In McCready, an
employee's knee gave out without explanation while walking on a sidewalk on the way to
her employer's warehouse. The McCready court found the unexplained fall was a neutral
risk and that neutral risks were compensable. The court relied on what Larson's Workers'
Compensation Law described as positional risk or but-for logic in explaining the
compensability of neutral risks:
"'[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
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an award can be justified as a matter of causation theory except by a recognition that this
but-for reasoning satisfies the '"arising' requirement.'" 41 Kan. App. 2d at 89 (quoting 1
Larson's Workers' Compensation Law § 7.04[1][a]).
Another case similarly found an unexplained fall on a flat surface was a
compensable neutral risk. Nuessen v. Sutherlands, No. 110,233, 2014 WL 1612607 (Kan.
App. 2014) (unpublished opinion); but see Meyer v. Nebraska Furniture Mart, No.
107,424, 2012 WL 4937629 (Kan. App. 2012) (unpublished opinion) (finding substantial
competent evidence supported Board's decision that unexplained fall was not
compensable).
The amended Act has clearly eliminated universal compensation for neutral risks.
See K.S.A. 2015 Supp. 44-508(f)(3)(A)(ii). As a result, the positional risk doctrine may
no longer apply in Kansas. If injuries such as Graber's arise solely out of a neutral risk
and rely only on the positional risk doctrine for recovery, the injuries are likely
noncompensable. The increased-danger (or increased risk) rule, however, may establish
the necessary causal connection in the case of some falls.
Under the increased-danger rule, an otherwise noncompensable fall may be
compensable "if the employment places the employee in a position increasing the
dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or
in a moving vehicle." 1 Larson's Workers' Compensation Law § 9.01[1] (2015).
Previously, courts generally only applied the increased-danger rule to idiopathic falls
because such falls were presumptively noncompensable—thus, an affirmative
employment contribution was necessary to establish a basis for recovery. 1 Larson's
Workers' Compensation Law § 9.01[1]. Since neutral risks were generally compensable,
application of the increased-danger rule was unnecessary. 1 Larson's Workers'
Compensation Law § 9.01[1]. With the amendment of the Act, however, neutral risks are
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now presumptively noncompensable, and such an affirmative employment contribution is
necessary to establish a causal connection.
The increased-danger rule would satisfy the statutory requirement for a causal
connection as set out in the amended Act. Under K.S.A. 2015 Supp. 44-508(f)(2)(B), an
injury by accident arises out of employment only if "there is a causal connection between
the conditions under which the work is required to be performed and the resulting
accident." In this case, Graber was required to attend a meeting on the second floor of an
office building. To attend the meeting, he had to both traverse and be in the vicinity of
industrial-type stairs. His accident involved falling down those same stairs. Because his
work required him to be at risk of falling down those particular stairs and that was the
nature of his accident, the causal connection requirement set out in the statute may be
fulfilled by the increased risk.
Furthermore, the increased-danger rule also arguably removes unexplained falls
from the category of neutral risks. In order to be neutral, a risk should have no particular
employment character. Suddenly falling on a flat surface has no clear employment
character, so such a fall is categorized as a neutral risk. Under the increased-danger rule,
however, an unexplained fall combined with a work-related risk would result in an
accident or injury with a particular employment character. In fact, this is part of the
reasoning Judge Nelson used in reaching his decision that Graber's injuries were
compensable. Thus, not only does the increased-danger rule establish the necessary
causal connection, it also removes certain unexplained falls from the excluded category
of neutral risks.
Kansas courts have previously recognized increased risk of injury due to
employment as establishing a causal connection, though not in cases of injury due to
neutral risk. See Angleton v. Starkan, Inc., 250 Kan. 711, 718, 828 P.2d 933 (1992) ("If
employment exposes the worker to an increased risk of injury of the type actually
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sustained, the employer is liable for compensation.'"); Johnson v. Johnson County, 36
Kan. App. 2d 786, 789, 147 P.3d 1091("[W]hen an injury occurs at work, it is not
compensable unless it is 'fairly traceable to the employment,' as contrasted with hazards
to which a worker 'would have been equally exposed apart from the employment.'"), rev.
denied 281 Kan. 1378 (2006). Whether the 2011 amendments have eliminated such
holdings is not clear. See Moore v. Venture Corporation, 51 Kan. App. 2d 132, 138, 343
P.3d 114 (2015) (discussing effect of 2011 amendments to Act on some prior caselaw).
The new Act has most likely eliminated the concurrence rule or the compensation of
injuries occurring due to a combination of idiopathic and work-related causes. See
Hurtado v. I & A Painting and Remodeling, Docket No. 1,058,894, 2015 WL 9672641
(Kan. Work. Comp. App. Bd. 2015) (majority of the Board finding concurrence rule
eliminated by amended Act, but dissent finding concurrence rule still in effect). The Act
did not, however, similarly eliminate rules such as the increased-danger rule by its plain
language. Since such rules satisfy the statutory requirement for causal connection, these
rules may still be in effect, particularly since the legislature has instructed the courts to
liberally construe the Act to bring employees and employers within its provisions. K.S.A.
2015 Supp. 44-501b. If such rules are still in effect and the stairs presented an increased
risk, Graber's injuries are compensable under the amended Act.
Conclusion
Because the Board misinterpreted idiopathic, its finding that Graber's injury did
not arise out of his employment due to an idiopathic cause is erroneous. Whether an
injury arose out of and in the course of employment, however, is a question of fact. Scott
v. Hughes, 294 Kan. 403, 415-16, 275 P.3d 890 (2012). Appellate courts do not make
factual findings, nor do they reweigh evidence or engage in de novo review. Williams v.
Petromark Drilling, 299 Kan. 792, 795, 326 P.3d 1057 (2014); Douglas, 296 Kan. at 562.
Thus, in order to determine whether Graber's injury arose out of and in the course of his
15
employment, this case should be remanded for reconsideration consistent with the above
interpretation of K.S.A. 2015 Supp. 44-508(f)(3)(A).
Reversed and remanded with directions.
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