Thach v. Farmland Foods, Inc. ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,684
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
NANG THACH,
Appellee,
v.
FARMLAND FOODS, INC.
and
SAFETY NATIONAL CASUALTY CORP.,
Appellants.
MEMORANDUM OPINION
Appeal from Workers Compensation Board. Opinion filed December 17, 2021. Affirmed.
Kendra M. Oakes, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellants.
Roger A. Riedmiller, of Riedmiller, Andersen & Scott LLC, of Wichita, for appellee.
Before WARNER, P.J., BUSER and CLINE, JJ.
BUSER, J.: This is an appeal by Farmland Foods, Inc., (Farmland) of a workers
compensation award to its employee, Nang Thach, who was seriously injured while
riding his motorcycle in the parking lot of the Farmland plant. The administrative law
judge (ALJ) and Kansas Workers Compensation Board (Board) found that Thach's
motorcycle accident arose out of and in the course of his employment as a mechanic.
Farmland appeals, contending the Board erroneously interpreted and applied the law.
Farmland also asserts the Board's decision was not supported by substantial competent
evidence.
1
Upon our review, we hold the Board did not err in its interpretation or application
of the workers compensation law when it concluded that Thach's accident arose out of
and in the course of his employment as a Farmland mechanic. Moreover, we also hold the
Board's award of compensation was supported by substantial competent evidence.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Preliminarily, during the pendency of this case, Farmland merged with other
corporate entities, resulting in changes to the name of the corporation. For simplicity,
however, Thach's employer will be referred to as Farmland throughout this opinion.
On January 28, 2015, Thach arrived for work at the Farmland plant at about 10:35
p.m. Thach worked as a mechanic on the third shift, which operated from 10:35 p.m. to
about 8 a.m. When Thach arrived, he parked his motorcycle in a space designated as a
handicapped parking space in the supervisors' area of the parking lot.
The parking lot had two designated areas; one area had parking spaces for
supervisors, managers, office staff, inspection agency employees, and individuals with
disabilities, while the other area was for employees generally. This latter employee
parking area included parking spaces specifically designated for motorcycles. One
employee estimated there were about six motorcycle parking spaces in the lot. Other
employees stated that non-motorcycle vehicles sometimes parked in the motorcycle
parking area to be closer to the plant's entrance.
At Farmland, employees were assessed half a point against their record if they
arrived late to work. If an employee accumulated a certain number of points they were
terminated.
2
Before going on break, Thach told Tin Truong, his brother-in-law who also
worked as a third shift mechanic, that he was going to move his motorcycle during the
break because it was parked in a handicapped parking space in the supervisors' parking
lot, as all the parking spaces for motorcycles in the employee parking area were taken
when he arrived for work.
Manuel Diaz-Fina, the Director of Human Resources, testified that employees had
a guaranteed 15-minute pre-lunch break before their 30-minute lunch break. Employees
remained on the time clock during the pre-lunch break, which was paid employee time.
Farmland's policy provided that employees could leave the building during their pre-
lunch and lunch breaks but they must return to work on time. Employees were permitted
to be in the parking lot during their pre-lunch break and move their vehicles in the
parking lot if necessary.
Thach went on break at about midnight on January 29, 2015. Earlier in the
evening, he spoke to Ryaan Mitchell, another third shift employee, about his motorcycle.
Thach showed Mitchell photographs of the motorcycle and asked him if he wanted to see
it. Mitchell agreed, and the two men went outside to the parking lot during the break.
Mitchell watched Thach start his motorcycle and ride straight ahead before turning
left down an aisle. Mitchell walked behind Thach as he was riding the motorcycle.
Mitchell testified that Thach drove past the motorcycle parking spaces, although he could
not recall whether the spaces in that designated area were full at the time. Mitchell
recalled that the motorcycle was operating fine at first before beginning to sway back and
forth. Shortly thereafter, Thach lost control of the motorcycle and fell to the ground.
According to Mitchell, he was about 10 feet behind Thach when the accident occurred.
He estimated that Thach was traveling about 10 miles per hour. At the time of the
accident, Thach was not wearing a motorcycle helmet but was wearing a safety helmet he
used when working at Farmland.
3
Mitchell ran to Thach and tried to talk to him, but he was unresponsive. Other
employees, including a plant manager, arrived shortly thereafter. The plant manager
directed Mitchell to notify security and tell them to call an ambulance. The ambulance
transported Thach to the hospital. Doctors performed a craniectomy to alleviate bleeding
and severe swelling of the brain.
Stanley Yost, another third shift mechanic, and Truong went to the parking lot
after hearing about the accident. Yost and Truong moved Thach's motorcycle to an
available space in the motorcycle parking area.
Thach sustained numerous injuries in the accident which resulted in cognitive
deficits, memory problems, and impaired speech. As a result, his sister, Diep Thach,
became his appointed guardian after the accident. Dr. Trevor Patton, Ph.D., a
neuropsychologist who performed an independent neuropsychological evaluation of
Thach, concluded that he exhibited behavioral irregularities, including high levels of
distractibility and anxiety. Dr. Patton also determined that Thach exhibited serious
neurological issues that were consistent with having sustained a traumatic brain injury.
Aaron Stegman, a safety manager at Farmland, inspected the parking lot area
where the accident occurred. He found nothing unusual and no defects. Security camera
video showed Thach riding past the motorcycle parking area, but the video did not show
whether there were any available parking spaces. The video did not show how fast Thach
was traveling or how the accident occurred.
When asked about the capacity of the parking lot, Stegman testified that he
assumed spaces were available for Thach to park because he worked during the third
shift. However, Yost recalled the parking lot was almost full on the night of the accident
and he remembered seeing non-motorcycle vehicles parked in the motorcycle area.
Stegman testified that after the accident, Farmland placed heavier barriers in front of the
4
motorcycle parking area to prevent non-motorcycle vehicles from parking there and to
accommodate motorcycle parking.
Diaz-Fina testified about Farmland's written parking policy, which stated:
"Farmland assumes no responsibility for damage to vehicles, assault or injury to persons,
or theft/damage to the contents of a vehicle entering, parking on, or exiting Company
property. Employees are expected to follow all parking restrictions and speed limits while
on Company property. Employees without the appropriate authorization or permit may
not park in restricted or reserved slots. Any vehicle parked in violation of Company rules
is subject to towing at the owner's expense."
Diaz-Fina agreed that parking in a handicapped parking space without the proper
permit was contrary to Farmland's parking policy. He also agreed that if an employee was
violating company policy, the employee should stop and take corrective action to remedy
the violation. This included moving a vehicle parked in violation of Farmland's parking
policy. Diaz-Fina testified that, although authorized by Farmland's policy, the company
was unlikely to tow any vehicle from the parking lot. In fact, he was unaware of any
vehicle ever being towed from the parking lot.
John Schellhorn, the third shift maintenance supervisor, said that Thach was one
of the employees under his supervision when the accident occurred. He agreed with Diaz-
Fina that employees were expected to park only in designated areas of the parking lot. If
they did not, Schellhorn believed the employee should rectify the problem. He also
agreed with Diaz-Fina that employees were permitted to go to the parking lot during their
break. In short, Thach did not violate Farmland's policy when he went to the parking lot
to move his motorcycle.
To make sure employees parked in the appropriate designated areas of the parking
lot, Brett Seeney, a security officer at Farmland, performed parking lot checks. Seeney
5
said that supervisors had stickers on their vehicles, while other employees did not.
Whenever he encountered a vehicle that was parked in the supervisors' area that did not
have a sticker, he would issue a ticket. Seeney testified that he had never contacted a tow
company nor seen a vehicle towed from the lot.
Yost testified that he had previously received a ticket for parking in the
supervisors' parking area. He also recalled seeing other employees go outside to the
parking lot during their breaks to smoke or to move their vehicles. According to Yost,
this was a regular occurrence because employees would often move their vehicles to a
more desirable location once employees from others shifts left the parking lot. He did not
recall any Farmland policy against moving a vehicle while on break. Loren Howard, a
maintenance lead, and Truong testified about employees receiving parking tickets for
improper parking in the Farmland lot.
On June 28, 2019, the ALJ ruled that Thach was permanently and totally disabled
from his injuries. The ALJ also found that Thach's
"short break and his activities during it, including moving his motorcycle to a different
parking spot, fall within the personal comfort doctrine and were incidents of his
employment. As such, the Court finds that Claimant has met his burden to prove that his
accidental injury arose out of and in the course of his employment with [Farmland]."
Thach was awarded temporary and permanent total disability compensation and
medical expenses.
Farmland filed an application for review with the Board. It sought review on
several issues. It contested that Thach's accident arose out of his employment, and
contended that there was not a causal connection between the conditions of his work
duties and the resulting accident, that Thach's accident arose out of a neutral risk with no
6
particular employment or personal character, that the accident arose out of a personal
risk, and that idiopathic causes contributed to Thach's motorcycle accident.
On review, the Board found: "The ALJ's conclusions of law and analysis of the
nature and extent of [Thach's] impairment, why [Thach's] accidental injuries arose out of
his employment with [Farmland] and [Thach's] entitlement to future medical benefits are
well-reasoned and detailed and adopted in their entirety by the Board." The Board
concluded that Thach was permanently and totally disabled and entitled to future medical
treatment. Moreover, it concluded the motorcycle accident arose out of his employment
and was more likely than not the result of his attempt to comply with Farmland's parking
policy. The Board also determined that Thach's accident fell within the personal comfort
doctrine. Accordingly, the Board affirmed the ALJ's award of worker's compensation
benefits.
Farmland timely appeals.
DID THACH'S INJURIES ARISE OUT OF AND IN THE COURSE OF HIS EMPLOYMENT?
For its first issue on appeal, Farmland contends the Board erroneously interpreted
or applied the law when it found that Thach's injuries arose out of and in the course of his
Farmland employment. In particular, Farmland claims the personal comfort doctrine is
inapplicable; there was not a causal connection between the conditions under which
Thach's work was required to be performed and the resulting accident; the injuries were
due to a neutral risk with no particular employment or personal character; and his injuries
arose out of a risk that was personal to the worker.
Thach counters these assertions. He argues the Board did not erroneously interpret
or apply the law when it found the personal comfort doctrine was applicable under
7
circumstances wherein Thach was injured on Farmland's premises while on an authorized
paid break and moving his motorcycle from a designated handicapped parking space.
Standards of Review and Brief Summary of Relevant Law
The Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., governs our
court's review of cases arising under the Kansas Workers Compensation Act (KWCA),
K.S.A. 2020 Supp. 44-501 et seq. K.S.A. 2020 Supp. 44-556(a). Under the KJRA, relief
may be granted only for statutorily enumerated reasons. One such reason is raised in this
first issue: the agency erroneously interpreted or applied the law. K.S.A. 77-621(c)(4).
This appeal turns on the meaning of certain statutes within the KWCA.
Interpretation of a statute is a question of law subject to de novo review. Johnson v. U.S.
Food Service, 312 Kan. 597, 600, 478 P.3d 776 (2021). The KWCA is to be liberally
construed to bring employers and employees within the provisions of the act, and the
KWCA's provisions should be applied impartially to both employers and employees in
cases arising under it. K.S.A. 2020 Supp. 44-501b(a); see Fernandez v. McDonald's, 296
Kan. 472, 479-80, 292 P.3d 311 (2013). "When exercising unlimited review on questions
of statutory interpretation, an appellate court owes no deference to interpretations given
to the [KWCA] by [the Board]." Estate of Graber v. Dillon Companies, 309 Kan. 509,
Syl. ¶ 2, 439 P.3d 291 (2019).
Under the KWCA, an injury is compensable only if it arises out of and in the
course of employment. K.S.A. 2020 Supp. 44-508(f)(2). Accidental injuries arise 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. 2020 Supp. 44-508(f)(2)(B)(i), (ii). An "accident or
injury that arose out of a neutral risk with no particular employment or personal
8
character" is specifically excluded from being deemed as arising out of employment.
K.S.A. 2020 Supp. 44-508(f)(3)(A)(ii). Injuries that occur while an employee is at work
in the employer's service are deemed to have occurred in the course of employment. See
Rinke v. Bank of America, 282 Kan. 746, 752, 148 P.3d 553 (2006). Finally, "[t]he
interpretation or construction of the [KWCA] is a question of law. But once that
interpretation or construction occurs, the ultimate question of whether an accident arises
out of and in the course of employment is a question of fact. [Citation omitted.]" Estate of
Graber, 309 Kan. at 513.
The Personal Comfort Doctrine
Because the Board adopted the ALJ's conclusion of law that Thach's injuries arose
out of his employment, we begin our analysis with a review of the ALJ's findings
regarding this issue. After surveying Kansas caselaw and the Board's decisions in similar
cases, the ALJ observed that "the Board has consistently applied the personal comfort
doctrine to injuries that occur when an employee is conducting personal activities while
on a break from work." The ALJ concluded:
"The Court finds that [Thach's] short break and his activities during it, including
moving his motorcycle to a different parking spot, fall within the personal comfort
doctrine and were incidents of his employment. As such, the Court finds that [Thach] has
met his burden to prove that his accidental injury arose out of and in the course of his
employment with [Farmland]."
The Board has previously defined the personal comfort doctrine:
"Employees who, within the time and space limits of their employment, engage
in acts which minister to personal comfort do not thereby leave the course of
employment, unless the extent of the departure is so great that an intent to abandon the
job temporarily may be inferred, or unless, in some jurisdictions, the method chosen is so
unusual and unreasonable that the conduct cannot be considered an incident of the
9
employment." Williams v. Allied Staffing, No. 1,058,426, 2012 WL 1142973, at *3 (Kan.
Work. Comp. App. Bd. March 28, 2012) (quoting 1 Larson's Workers' Compensation
Law § 21 [2006]).
In the case on appeal, the Board affirmed the ALJ's legal conclusion that Thach's
injuries arose from his employment by application of the personal comfort doctrine:
"[Farmland] also argues that [Thach's] act of moving his motorcycle while on his
break does not fall within the personal comfort doctrine because it does not benefit the
employer. It is acknowledged that [Thach] was not parked in an appropriate spot.
However, [Thach] attempted to correct his mistake the first opportunity he had to do so,
which occurred on break. It is to the employer's benefit that all employees follow the
rules and policies. By moving his motorcycle to an appropriate parking spot, [Thach]
would have been in compliance with policies as well as alleviating his concern about
receiving a ticket. Such circumstances meet the criteria of the personal comfort doctrine."
On appeal, both parties cite to Gould v. Wright Tree Serv., Inc., No. 114,482, 2016
WL 2811983 (Kan. App. 2016) (unpublished opinion), but draw different conclusions
from their understanding of the opinion. In Gould, the claimant worked as a groundsman
for Wright Tree Service (Wright). As a groundsman, Gould picked up branches cut from
trees and other tasks the foreman required, including refueling chainsaws.
In September 2013, Gould's foreman asked him to fill a chainsaw with gasoline.
As Gould did so, gas leaked out of the chainsaw and onto his shirt. Shortly thereafter, the
foreman told Gould he could take a short break. While on break, Gould lit a cigarette
which caused his shirt to catch fire and he was injured. The ALJ originally entered an
award in Wright's favor, but the Board reversed the ALJ's decision and found that
Gould's injuries arose out of and in the course of his employment.
10
On appeal, Wright contended the Board failed to establish a causal connection
between Gould's work and his resulting accident. Wright also argued that Gould's injury
arose out of a personal or neutral risk instead of a work-related risk. Our court disagreed
with Wright, stating that the Board properly found a causal connection because Gould's
work required him to work with gasoline, which carried risks along with it, such as
getting burned. 2016 WL 2811983, at *5.
When discussing Wright's argument that Gould's injury did not arise from his
employment, our court stated:
"Wright argues Gould's injury did not arise out of his employment because at the
time of his injury Gould had completed his job requirement to fill the chainsaw. This
argument appears to conflate the standard for 'arise out of employment' and 'in the course
of employment.' The standard for 'arising out of' only requires a causal connection
between the conditions of the work and the injury—it does not require that the injury
occur at the exact moment an employee is performing a certain job task. . . . At the time
of his injury, Gould was no longer refueling chainsaws. He was, however, on the clock
and continuing to perform the requirements of his job. Thus, the injury occurred within
the course of his employment . . . ." 2016 WL 2811983, at *5.
Next, our court went on to discuss the personal comfort doctrine as it applied to
Gould. After citing the definition, we stated that the "rule generally recognizes that
tending to personal comfort is an incident of employment, and activities which are
incidents of employment also 'arise out of' employment." 2016 WL 2811983, at *6
(quoting Williams, 2012 WL 1142973 at *3). Our court then held that injuries which
occur on smoke breaks fall within the personal comfort doctrine and are compensable.
Gould, 2016 WL 2811983, at *6.
Wright also argued that the employer did not require Gould to smoke cigarettes,
which meant his injury should not be compensable. Again, we disagreed, reasoning that
11
Wright's argument would disallow personal comforts: "Employers may require
employees to take breaks, but they do not require employees to eat, drink, or use the
restroom as a condition of employment. Employers allow employees to do so, and it
benefits both parties." (Emphasis added.) 2016 WL 2811983, at *7. Our court reasoned
that smoking during the break fell within the ambit of the personal comfort doctrine.
2016 WL 2811983, at *7.
In sum, our court found the Board did not err in finding that Gould's injury arose
out of and in the course of his employment. Since his employment required him to work
with gasoline, gasoline spilling and catching on fire was a risk directly associated with
his work. Moreover, because the accident occurred on a short, authorized break, and
Gould was attending to a personal comfort during the break, smoking was an incident of
his employment. As a result, Gould was working at the time of his injury, and his actions
were causally connected to his job, which meant his injuries were compensable. 2016
WL 2811983, at *7.
Thach argues that Gould and other cases hold that if it is proven an employee is
injured during a break "and what they were doing on their break could not be contended
to be an abandonment of their job, and an accident occurs during said break, the injuries
that arise from that accident arose out of employment by the mere fact that they occurred
on break."
Farmland counters that Gould supports the proposition that the "personal comfort
doctrine may be applied to establish an employee was in the course of employment even
while on break, but it does not establish than an accident arose out of employment." But
this argument is contradicted by the Board's ruling in Williams. There, the Board
concluded that the "rule clearly recognizes that ministering to personal comfort is
conduct that is typically considered an incident of employment. Activities which are an
incident of employment are considered to arise 'out of' the employment." Williams, 2012
12
WL 1142973, at *3; see also Gould, 2016 WL 2811983, at *6 (citing Williams for the
same proposition).
Returning to the case on appeal, in support of its legal conclusion that Thach's
injuries arose from his employment because of the personal comfort doctrine, the ALJ
cited numerous Board decisions post-Gould in support of its legal conclusion.
"Since the Court of Appeals entered its decision in Gould, the Board has
consistently applied the personal comfort doctrine to injuries that occur when an
employee is conducting personal activities while on a break from work. See e.g. Richie v.
General Motors Corp., No. CS-00-0436-380, 2019 WL 1595640, at *3 (Kan. W.C.A.B.
March 7, 2019) ('Taking a work break is part of employment, so Richie's fall had a causal
connection to her required work. Because taking a break is inherent to and casually
connected to Richie's job, it is not a neutral risk without any particular employment
character.'); Edmonds v. Weller's Bar & Grill, No. 1,079,903, 2018 WL 1720638 (Kan.
W.C.A.B. March 21, 2018) (finding that claimant's injuries that occurred during a smoke
break were compensable under the personal comfort doctrine); Laughlin v. Goodyear
Tire & Rubber Co., No. 1,077,657, 2016 WL 7655590 (Kan. W.C.A.B. Dec. 14, 2016)
(finding that a claimant taking a short break to walk out to the respondent's loading dock
to get some fresh air fell within the personal comfort doctrine and was compensable)."
Based upon Gould and these Board precedents, the ALJ provided the following
factual basis for its legal conclusion that the personal comfort doctrine was applicable to
Thach:
"At the time of his accident, [Thach] was taking a 15-minute break, which was
built into his shift by [Farmland]. He was on the clock in [Farmland's] parking lot on
[Farmland's] premises, where he was allowed to be, as evinced by the fact that
[Farmland] had a designated employee smoking area in the parking lot. Multiple
employees of [Farmland] testified that people were permitted to take breaks in
[Farmland's] parking lot and often did, including taking smoke breaks or sitting in their
cars. Multiple employees also testified that it was not uncommon for employees to go out
13
to the parking lot during their first break and move their vehicles to closer parking spots
that had opened up after the prior shift's employees had left.
"Additionally, [Thach] was required to remain on [Farmland's] premises during
his break. He was wearing a radio and was on call such that if someone called his radio
with a problem and needed [Thach's] assistance, [Thach] was expected to stop his break
and immediately return to work to deal with the problem. [Thach] could then resume his
break at a later time.
"[Thach] was showing his motorcycle to a co-worker as part of his break, and
then he was going to move his motorcycle to a different parking spot because he had
parked in a handicapped spot when he initially arrived at work. Multiple employees
testified that [Thach] would have received a ticket had he remained parked in the
handicapped spot all night, and although [Farmland] may not have charged a monetary
fine for such a ticket, it is not difficult to believe that [Thach] would not have wanted to
receive a ticket. Additionally, although there is no evidence that [Farmland] typically
towed vehicles that were parked in violation of [Farmland's] rules, there was testimony
that employee parking violations could potentially lead to discipline.
"The Court further notes that it was to [Farmland's] benefit for [Thach] to move
his motorcycle, since it was improperly parked in a handicapped parking spot in
[Farmland's] supervisor's parking lot. The fact that [Farmland] goes to the effort to ticket
employees who park in such areas during their work shifts demonstrates that it is
important to [Farmland's] business that employees park in specific locations. As such,
[Thach's] act of moving his motorcycle to a different parking spot was of benefit to
[Farmland]. Although the Court acknowledges that [Thach] should not have parked in the
handicapped parking spot to begin with, there was considerable testimony presented that
cars often improperly parked in the motorcycle parking lot, leaving no spots available for
motorcycles, which would explain why [Thach] was unable to park in the motorcycle
parking lot and parked in the handicapped spot instead. [Thach] demonstrated an effort to
move his motorcycle to a proper parking spot at the first opportunity.
"The Court finds that [Thach's] short break and his activities during it, including
moving his motorcycle to a different parking spot, fall within the personal comfort
doctrine and were incidents of his employment. As such, the Court finds that [Thach] has
met his burden to prove that his accidental injury arose out of and in the course of his
employment with [Farmland]."
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We are persuaded the ALJ did not err in applying the personal comfort doctrine
under the factual scenario presented by this case. At the time of his accident, Thach was
on an authorized and paid 15-minute break provided by Farmland. He was on Farmland's
premises where he was allowed to be while on his break. Although Thach was not
engaged in mechanical work when injured, Farmland retained control over Thach during
his break, and Thach's responsibilities to Farmland continued throughout this brief
interval.
Importantly, Farmland required Thach to remain "on call" while on his break, and
to promptly interrupt this respite and return to the plant when the employer deemed it
necessary to perform mechanical work. To facilitate this on call protocol, Thach was
required to wear a company radio during the break. Given these facts, it is apparent that
Farmland derived a company benefit from Thach being on call during this 15-minute
period, and Thach, while on an authorized paid break, still owed Farmland the duty to
interrupt his respite and return to the plant whenever requested by the employer. Thus,
Thach's injuries arose out of and in the course of employment. See K.S.A. 2020 Supp.
44-508(f)(2).
Alternatively, Farmland argues that Thach's accident should not fall under the
personal comfort doctrine because Thach "riding his motorcycle does not constitute an
activity of ministering to his personal comfort." To support its assertion, Farmland cites
to Fratzel v. Price Chopper, No. 1,066,540, 2014 WL 517247 (Kan. Work. Comp. App.
Bd. January 27, 2014). There, the Board, after defining the personal comfort doctrine,
stated:
"Seeking necessary relief from discomfort (seeking warmth, coolness, or toilet
facilities) is 'so obviously in the category of necessities that no question arises about their
being basically in the course of employment. The only issue on which compensation is
15
sometimes denied is that of seeking these facilities in an unreasonable manner.'" 2014
WL 517247, at *5 (quoting 1 Larson's Workers' Compensation Law § 21 [2013]).
But Fratzel provides little support for Farmland's argument. While the case
provides some guidance as to activities that are included under the personal comfort
doctrine, it is not an all-inclusive list of activities, nor does it exclude an employee
moving their vehicle in an employer's parking lot during an authorized break to comply
with the employer's parking policies. Moreover, in Willoughby v. Williams Seasoning,
No. 1,070,914, 2017 WL 1825146 (Kan. Work. Comp. App. Bd. April 19, 2017), the
Board ruled: "Rather than categorize certain activities as 'personal comforts,' it is perhaps
better to recognize that a worker attending to personal comfort is performing an incident
of work."
As determined by the ALJ, Thach went to move his motorcycle on break because
it was parked in a handicapped parking space. By moving his motorcycle from the
prohibited handicapped parking space during the break, Thach was doing an activity that
Yost said was permitted by Farmland. Moreover, employees routinely moved their
vehicles during breaks. Thach was also attempting to rectify his earlier violation of
Farmland's parking policy by moving his motorcycle, and thereby alleviate any personal
concern about receiving a ticket. Finally, Thach wanted to show his motorcycle to
Mitchell, a fellow employee, during the break. Not unlike drinking a beverage, eating
food, or conversing with a fellow employee for a brief period, Thatch's activities while on
his break undoubtedly provided him some personal comfort by engaging in collegiality
with a fellow employee.
Thach's Injuries Were Not the Result of a Personal or Neutral Risk
Next, Farmland focuses on two subsections of K.S.A. 2020 Supp. 44-
508(f)(3)(A)(ii) and (iii). This statute provides in relevant part:
16
"(3)(A)The words 'arising out of and in the course of employment' as used in the
workers compensation act shall not be construed to include:
....
(ii) accident or injury that arose out of a neutral risk with no particular
employment or personal character;
(iii) accident or injury that arose out of a risk personal to the worker . . . ."
In particular, Farmland asserts that Thach's injuries relate to both of these
subsections because operating a motorcycle is a personal risk disconnected from
Farmland's employment. Furthermore, Farmland argues that no defect in the parking lot
caused Thach to crash his motorcycle.
While the KWCA does not define neutral or personal risk, in Hensley v. Carl
Graham Glass, 226 Kan. 256, 258, 597 P.2d 641 (1979), our Supreme Court defined the
three types of risk in workers compensation cases as: "(1) those distinctly associated
with the job; (2) risks which are personal to the workman; and (3) the so-called neutral
risks which have no particular employment or personal character." As our court has
explained, personal risks and neutral risks with no particular employment or personal
character are not compensable under the KWCA. Gould, 2016 WL 2811983, at *6.
But being injured because of an accident while moving one's motorcycle in the
Farmland parking lot is not a risk personal to Thach. See K.S.A. 2020 Supp. 44-
508(f)(3)(A)(iii). Every employee who worked at Farmland and parked in its parking lot
was obligated to follow the policies established by the company and park their vehicles in
designated areas. This included the directive not to park in handicapped parking spaces or
risk being cited by Farmland security officers. Thach went to the parking lot to move his
motorcycle so he would be compliant with Farmland's parking policies. Thus, moving his
motorcycle to comply with the parking policies was a work-related risk. See Johnson v.
Stormont Vail Healthcare, 57 Kan. App. 2d 44, 52, 445 P.3d 1183 (2019).
17
Moreover, Thach was not the only employee to move his vehicle during a break.
Employees moving their vehicles during breaks were a common occurrence at the
Farmland plant, and company policy allowed the activity. The risks of those vehicular
movements were not unique to Thach but applicable to all Farmland employees.
In summary, Thach's injuries were not the result of a neutral risk with no particular
employment or personal character, nor did his injuries arise out of a risk personal to him.
Like numerous Farmland plant employees while on their breaks, Thach was moving his
vehicle to another parking space in compliance with Farmland parking policies at the
time of his accident.
Causal Connection Between Thach's Work Conditions and Injuries
Farmland also asserts the Board erroneously interpreted or applied the law because
there was no causal connection between the conditions under which Thach's work was
required to be performed and his resulting accident, as required by K.S.A. 2020 Supp. 44-
508(f)(2)(B)(i).
The Board specifically addressed the causal connection between Thach's
employment and his accident:
"From all the circumstances presented it is concluded [Thach] more than likely would not
have been moving his motorcycle on his break, but for [Farmland's] parking policies.
[Thach's] accidental injury was prompted by his attempt to comply with [Farmland's]
parking policies, and therefore is connected to [Thach's] employment with [Farmland]."
The Board correctly concluded that Thach's injuries had a causal connection to his
work conditions. As detailed earlier in the ALJ's extensive factual findings, and as
previously discussed in this opinion, Thach went to the parking lot to move his
motorcycle to comply with Farmland's parking policies. During this break, he was
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required to be in radio contact with his employer in the event his mechanical work was
needed in the plant. By designating certain areas of the parking lot for specific
employees, Farmland demonstrated a desire to have specific groups of employees parking
in designated areas and spaces. To ensure compliance with these policies, Farmland
employed security guards to patrol the parking lot and ticket those parked in unauthorized
locations. In short, there was a causal connection between Thach's work and his injuries.
We hold the Board did not erroneously interpret or apply the law when it
concluded that Thach's accident arose out of and in the course of his employment. See
K.S.A. 2020 Supp. 44-508(f)(2).
DID SUBSTANTIAL COMPETENT EVIDENCE SUPPORT THE BOARD'S FINDINGS?
For its second issue on appeal, Farmland argues that no substantial evidence
supports the Board's findings.
Appellate courts review 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. 77-621(c)(7). "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 easily resolved.' [Citation omitted.]" Rogers v.
ALT-A&M JV, 52 Kan. App. 2d 213, 216, 364 P.3d 1206 (2015).
When determining fact questions, an appellate court's responsibility is to review
the record as a whole to determine whether the Board's factual determinations are
supported by substantial evidence:
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"This analysis requires the 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. The
court does not reweigh the evidence or engage in de novo review. [Citations omitted.]"
Williams v. Petromark Drilling, 299 Kan. 792, 795, 326 P.3d 1057 (2014).
See also K.S.A. 77-621(d).
Farmland focuses its argument on the Board's finding that Thach moved his
motorcycle to comply with Farmland's parking policy. According to Farmland, the only
evidence that supports this finding is speculative. It asserts that no one directed Thach to
move his motorcycle the night of the accident, and that, in general, employee vehicles
were not towed because of parking in non-designated parking spaces.
Farmland's parking policy provided in relevant part:
"Employees are expected to follow all parking restrictions and speed limits while on
Company property. Employees without the appropriate authorization or permit may not
park in restricted or reserved slots. Any vehicle parked in violation of Company rules is
subject to towing at the owner's expense."
Substantial evidence supports the Board's conclusion that Thach was moving his
motorcycle to comply with Farmland's parking policy. When Thach first spoke with
Truong, he told him that he needed to move his motorcycle during his break. When
Truong asked why, Thach told him he had parked in a handicapped parking space in the
supervisor's area because all the motorcycle parking spaces were taken when he arrived
for work.
Farmland's argument that no one told Thach to move his motorcycle does not alter
this conclusion. The parking policy specifically stated that employees were expected to
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park in the properly designated areas of the parking lot. Diaz-Fina and Schellhorn agreed
that if an employee violated the parking policy, they would expect the employee to take
corrective action to rectify the violation. When asked whether parking in a handicapped
space without a permit was against Farmland policy, Diaz-Fina replied that "[i]t is a
violation of company and government rules."
Similarly, Farmland's argument that the parking lot policies were not strictly
enforced is unpersuasive. Part of Seeney's responsibilities included performing parking
lot checks to ensure employees parked in designated areas of the parking lot. When he
observed a car that was parked in the supervisors' area that did not have a sticker, Seeney
issued a ticket for the violation.
Upon our independent review of the ALJ's extensive and detailed factual findings,
as adopted by the Board, and in light of the record as a whole, we conclude the findings
are supported by substantial competent evidence.
Affirmed.
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