Larson v. Excel Industries ( 2021 )

No. 122,471
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
PAMELA LARSON, Surviving Spouse of THOMAS LARSON,
Appellant,
v.
EXCEL INDUSTRIES, INC.
and
TRUMBULL INSURANCE COMPANY,
Appellees.
SYLLABUS BY THE COURT
1.
The heart amendment to the Workers Compensation Act provides that
compensation shall not be paid in the case of coronary disease or injury unless it is shown
that the exertion of work necessary to precipitate the disability was more than the
employee's usual work in the course of the employee's regular employment. K.S.A. 2020
Supp. 44-501(c)(1).
2.
The heart amendment does not create a day-to-day test to measure usual exertion,
usual work, or regular employment. What is usual or regular will generally depend upon
a number of facts and circumstances, among which the daily activities of the employee
may be only one such factor.
3.
The standard for determining what is usual exertion is the work history of the
individual involved. Consideration is to be given to the exertion typically required to do
the work-related task that resulted in the injury and the exertion required to do the task on
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the day of the injury. The exertion need not be a daily requirement for it to fall within the
definition of usual work, and a task done only occasionally can be considered usual work.
4.
What is considered usual work is not determined by the job description but by the
work actually performed by the employee.
5.
Mootness is a discretionary policy used to avoid unnecessary issues but allows a
court to consider an issue when judicial economy would benefit from a decision on the
merits. An issue is not moot unless it is clearly and convincingly shown the actual
controversy has ended, the only judgment that could be entered would be ineffectual for
any purpose, and it would not impact any of the parties' rights. When considering
mootness, a court should consider whether an issue (1) is one of statewide interest and of
the nature that public policy demands a decision: (2) remains a real controversy; or (3) is
capable of repetition.
6.
When exertion is not an issue, a workers compensation claimant may prevail by
showing an external force was the precipitating cause of the worker's injury or disability.
To show an external force was the precipitating cause of the injury or disability, the
presence of a substantial external force in the working environment must be established
and there must be expert medical testimony that the external force was a substantial
causative factor in producing the injury and resulting disability.
7.
Whether an external force or agency produced the worker's disability is a factual
question, but what qualifies as an external force is a legal one.
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8.
Whether a worker's coronary disease or injury was caused by unusual exertion or
by external forces raises two separate theories of recovery which require different
evidence and different elements to be proven but are not necessarily mutually exclusive.
Appeal from Workers Compensation Board. Opinion filed March 12, 2021. Affirmed in part,
reversed in part, and remanded with directions.
Terry J. Torline, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellant.
Bruce L. Wendel, of Law Offices of Steven G. Piland, of Overland Park, for appellees.
Before ARNOLD-BURGER, C.J., BRUNS and POWELL, JJ.
POWELL, J.: Thomas Larson suffered a fatal heart attack after returning from an
out-of-town business trip in November 2016. His widow, Pamela Larson, sought
surviving spouse benefits, but the Kansas Workers Compensation Appeals Board
determined she was not entitled to receive benefits due to what is commonly referred to
as the heart amendment to the Workers Compensation Act, see K.S.A. 2020 Supp. 44-
501(c)(1), because she failed to prove that Thomas' heart attack was caused by exertion
beyond that usually required by his job. The Board declined to rule on Pamela's claim
that Thomas' heart attack had been caused by external factors, finding all other issues
moot.
Pamela now seeks judicial review of the Board's actions, arguing the Board: (1)
incorrectly interpreted the heart amendment; (2) erred in finding she presented
insufficient evidence to support her claim that Thomas' heart attack was caused by
exertion beyond that usually required by his job; and (3) wrongly concluded her claim for
benefits on the ground that external forces triggered her husband's heart attack was moot.
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After a careful review of the record, we cannot agree with Pamela that the Board
misinterpreted the heart amendment and that she presented sufficient evidence to support
her claim that Thomas' heart attack was caused by exertion beyond that usually required
by his job. However, Pamela's argument that the Board erred in declaring her external
forces claim moot has merit because she has alleged sufficient facts which, if true, may
support such a claim. Thus, we affirm in part, reverse in part, and remand with directions.
FACTUAL AND PROCEDURAL BACKGROUND
Thomas, at the time of his death, was 61 years old and employed by Excel
Industries, Inc. as a senior quality engineer. According to his job description, Thomas
was required to work between 8 a.m. and 5 p.m., but he usually worked from 7:30 a.m. to
4:30 p.m. Thomas' job duties required him to engage in domestic travel to address quality
deficiencies impacting production.
In June 2016, Thomas was on a business trip in Chicago, and he took some time to
attend a Chicago Cubs game. While at the game, he suffered a heart attack. As a result,
Thomas was hospitalized for five weeks in Chicago and underwent surgery for the
placement of a stent in his heart.
While in the hospital, Thomas' granddaughter, Amber Larson, visited him. During
this visit, Thomas received a call from his boss, Jim Burke. Thomas informed Burke he
no longer wanted to travel because he was worried about experiencing another medical
emergency. Burke told Thomas he understood and would no longer require Thomas to
travel for work. Amber stated Thomas told several family members he would no longer
be required to travel for work.
Thomas subsequently returned to Wichita to continue his recovery. As the result
of his heart attack, Thomas was prescribed multiple medications to reduce his risk of a
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sudden heart attack, including Atorvastatin, Clopidogrel, Lisinopril, Metformin,
Metoprolol SUCC XL, Viagra, and aspirin—all to be taken daily. Thomas was seen by a
cardiologist, Dr. Layne Reusser, in late August. Dr. Reusser cleared Thomas to return to
work without restrictions on September 14, 2016.
Upon Thomas' return to work on September 20, 2016, Burke no longer worked at
Excel, and Thomas was informed he was still required to travel domestically as part of
his job. In November 2016, Thomas was asked to go on a supplier quality review trip to
investigate Double H Manufacturing, a potential new supplier located in Rock Valley,
Iowa. Thomas added a visit to another supplier to the trip, Clow Stamping, which was
located in Merrifield, Minnesota. Pamela and Thomas' daughter, Katrina Dunn, testified
Thomas was nervous about the trip.
Thomas' trip was from November 15 to November 17, 2016. Thomas booked the
flights, reserved the hotel rooms, and reserved the rental cars. Thomas also scheduled the
meeting times with Double H Manufacturing and Clow Stamping. Anani Lawson-
Hetcheli, another Excel employee, went on the trip with Thomas. Lawson-Hetcheli and
Thomas had gone on business trips together before.
On Tuesday, November 15, the pair worked in the office until noon, took the
afternoon off, and left at 5:25 p.m. for a flight from Wichita to St. Louis and then
changed planes to fly to Minneapolis. Thomas and Lawson-Hetcheli arrived in
Minneapolis at 11:25 p.m. After landing, they took a shuttle to the hotel, arriving around
midnight.
The next day, they rented their car from the airport around 8:30 a.m., and Thomas
then drove the almost three hours to Clow Stamping in Merrifield for a two-and-a-half-
hour tour of the facility. Afterwards, they then drove approximately six hours to Sioux
Falls, South Dakota, where they stayed overnight.
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On Thursday, November 17, Thomas and Lawson-Hetcheli left the hotel around 6
a.m. and drove to Double H Manufacturing in Rock Valley, an hour away. They were at
the plant until 1 p.m., then drove back to the Sioux Falls airport, where they were
scheduled to fly out at 5:25 p.m. Their flight was delayed and then canceled because of
the weather. Thomas and Lawson-Hetcheli got hotel rooms to spend the night.
Thomas only brought enough prescription medication to last him through
November 17. The poor weather continued overnight and into the next morning. Thomas
wanted to leave for the airport by 5 a.m., but Lawson-Hetcheli convinced him to wait
until 7:30 a.m.
Their flight was originally scheduled to leave Sioux Falls at 12:48 p.m. but was
delayed multiple times until the passengers were able to board at 2:44 p.m. The flight
landed in Denver where Thomas and Lawson-Hetcheli changed planes and flew to
Wichita, landing at 10:15 p.m. Thomas wanted Lawson-Hetcheli to meet Pamela, so they
waited by the baggage claim area. Thomas began to have difficulty speaking and trouble
breathing, prompting Lawson-Hetcheli to get Thomas a wheelchair and call for help.
Another passenger helped Thomas get oxygen and had him lie flat on the ground. EMS
arrived, and Thomas was taken to the hospital. Thomas had suffered a second heart attack
and died at the hospital the next day.
Pamela applied for surviving spouse benefits on January 23, 2017. Pamela
contended that Thomas' death was caused by unusual exertion within the meaning of the
heart amendment and, in the alternative, external forces precipitated the heart attack.
Lawson-Hetcheli testified the business trip was typical of their prior trips together
and nothing unusual happened on the trip. He also testified that, throughout the trip,
Thomas appeared fine and nothing gave him concern for Thomas' health.
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Pamela retained two medical experts: Dr. John McMaster, a board-certified
doctor in emergency medicine, and Dr. Reusser, Thomas' cardiologist. Dr. McMaster
believed the long work hours, different job duties, increased stress and anxiety, and the
absence of required medication related to the November 2016 trip were significant
causative factors triggering Thomas' heart attack on November 18. Dr. McMaster
admitted he did not know Thomas' job required out-of-town trips or how often he went
on those trips. Dr. McMaster testified Thomas' preexisting conditions of high blood
pressure, high cholesterol, and first heart attack could have contributed or triggered his
second heart attack.
Dr. Reusser, board certified in cardiology, interventional cardiology, and internal
medicine and who treated Thomas after his first heart attack, concurred with Dr.
McMaster's diagnosis and agreed with his causation opinions. Dr. Reusser also admitted
he was unaware of Thomas' job duties.
Excel retained Dr. Michael Farrar, a board-certified cardiologist, as a medical
expert. Dr. Farrar noted Thomas' heart stent had remained open at his death, meaning it
was not blocked and not the cause of his death. Dr. Farrar also testified someone who has
already suffered a heart attack is at a greater risk for a second one and opined that the
business trip factors of long hours, stress and anxiety, and lack of medication were not
prevailing factors in the precipitation of Thomas' second heart attack and death. Dr.
Farrar concluded the precipitating factors were Thomas' first heart attack, preexisting
coronary artery disease, and left ventricular dysfunction. He also testified there was no
evidence that missing one day of medication would have caused Thomas' heart attack.
On May 15, 2019, the administrative law judge (ALJ) denied Pamela's claim for
benefits. Pamela then appealed to the Workers Compensation Appeals Board, which, on
January 23, 2020, also denied her claim, finding the November 2016 trip was part of
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Thomas' usual work in the course of his regular employment. The Board declared all
other issues moot.
Pamela timely seeks judicial review of the Board's actions.
ANALYSIS
Pamela argues the Board erred in three ways: (1) The Board incorrectly
interpreted the meaning of the heart amendment; (2) substantial evidence did not support
the Board's finding that Thomas was engaged in usual exertion; and (3) the Board erred
when it declared Pamela's claim that Thomas' death was caused by external forces as
moot.
Appeals from the Board are reviewed under the Kansas Judicial Review Act
(KJRA), K.S.A. 77-601 et seq. See K.S.A. 2020 Supp. 44-556(a); Base v. Raytheon
Aircraft Co., 50 Kan. App. 2d 508, 520, 329 P.3d 540 (2014). Pamela bears the burden to
prove the Board's actions were invalid. See K.S.A. 77-621(a)(1). The validity of agency
action is determined in accordance with the judicial review standards provided in the
KJRA. K.S.A. 77-621(a)(2).
I. DID THE BOARD CORRECTLY INTERPRET THE HEART AMENDMENT?
Pamela first argues the Board incorrectly interpreted the heart amendment to mean
an employee cannot recover if the employee is performing his or her usual work in the
course of his or her regular employment when he or she suffers a cardiac event. Pamela
asserts the correct interpretation of the heart amendment allows an employee to recover
when performing his or her usual work if the exertion of the work was more than the
employee's usual work.
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Standard of Review
"When interpreting a statute, a court first attempts to discern legislative intent through the
statutory language, giving common words their ordinary meanings. Whaley v. Sharp, 301
Kan. 192, 196, 343 P.3d 63 (2014). When the language is plain and unambiguous, the
court must give effect to its express language, rather than determine what the law should
be. The court will not speculate about legislative intent and will not read the statute to
add something not readily found in it. Graham v. Doktor Trucking Group, 284 Kan. 547,
Syl. ¶ 3, 161 P.3d 695 (2007). It is only when the statute's language is unclear or
ambiguous that the court employs the canons of statutory construction, consults
legislative history, or considers other background information to ascertain its meaning.
Whaley, 301 Kan. at 196." Nauheim v. City of Topeka, 309 Kan. 145, 149-50, 432 P.3d
647 (2019).
When addressing statutes in a workers compensation appeal, we owe no deference
to the interpretation or construction of the statute by the ALJ or the Board. Douglas v. Ad
Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013).
Analysis
To decide Pamela's claim, the Board had to interpret K.S.A. 2020 Supp. 44-501(c),
also known as the heart amendment. The heart amendment provides:
"Except as provided in paragraph (2), compensation shall not be paid in case of
coronary or coronary artery disease or cerebrovascular injury unless it is shown that the
exertion of the work necessary to precipitate the disability was more than the employee's
usual work in the course of the employee's regular employment." K.S.A. 2020 Supp. 44-
501(c)(1).
The heart amendment does not create a day-to-day test to measure usual exertion, usual
work, or regular employment. "[W]hat is 'usual' or 'regular' within the meaning of the
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[heart] amendment will generally depend upon a number of facts and circumstances,
among which the daily activities of a workman may be one, but only one, among many
factors." Nichols v. Kansas State Highway Commission, 211 Kan. 919, 925, 508 P.2d 856(1973).
Pamela argues the Board misinterpreted the meaning of the heart amendment
because it found an employee cannot recover under the heart amendment when
performing the employee's usual work in the course of regular employment when the
employee suffers a cardiac event.
The Board's order found Thomas' business trip was part of his usual work in the
course of his regular employment. As a result, the Board found Pamela had failed to
prove Thomas' heart attack was due to any unusual exertion. While the Board did not go
into great detail about the law surrounding the heart amendment, it did discuss the facts
of this case in depth. In doing so, it is clear from the record that the Board considered all
the relevant factors necessary to decide what was usual and regular in the course of
Thomas' employment, as Nichols requires. Pamela's assertion that the Board
misinterpreted the heart amendment is contradicted by its plain language and by the
Board's order, which went through the facts and circumstances of the business trip to
determine if it was usual work in the regular course of Thomas' employment. The Board
did not misinterpret K.S.A. 2020 Supp. 44-501(c)(1).
II. DID SUBSTANTIAL EVIDENCE SUPPORT THE BOARD'S FINDING THAT THOMAS WAS
ENGAGED IN HIS USUAL WORK?
Next, Pamela argues substantial evidence does not support the Board's finding that
Thomas was engaged in his usual work in the course of his regular employment.
Specifically, Pamela argues the Board was wrong to conclude out-of-town travel was still
a part of Thomas' job in November 2016. Further, Pamela asserts the evidence shows
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Thomas worked longer hours on the trip than described in his job description. Excel
counters that travel was a regular part of Thomas' job duties and the business trip he went
on was no different than any of his previous business trips.
Standard of Review
A party may challenge an agency's decision on the grounds that it was made on a
determination of fact not supported by substantial evidence "when viewed in light of the
record as a whole." K.S.A. 77-621(c)(7).
"'[I]n light of the record as a whole' means that the adequacy of the evidence in the record
before the court to support a particular finding of fact shall be judged in light of all the
relevant evidence in the record cited by any party that detracts from such finding as well
as all of the relevant evidence in the record . . . cited by any party that supports such
finding, including any determinations of veracity by the presiding officer who personally
observed the demeanor of the witness and the agency's explanation of why the relevant
evidence in the record supports its material findings of fact. In reviewing the evidence in
light of the record as a whole, the court shall not reweigh the evidence or engage in de
novo review." K.S.A. 77-621(d).
Our examination of the evidence also requires us to consider whether cross-examination
or other evidence has so undermined the evidence supporting the agency's decision that it
is insufficient to support the agency's conclusion. Buchanan v. JM Staffing, 52 Kan. App.
2d 943, 948, 379 P.3d 428 (2016). "In workers compensation cases, substantial evidence
is evidence possessing something of substance and relevant consequence and carrying
with it fitness to induce conviction that the award is proper, or furnishing a substantiating
basis of fact from which the issue tendered can be reasonably resolved." Mudd v. Neosho
Memorial Regional Medical Center, 275 Kan. 187, 191, 62 P.3d 236 (2003).
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Put perhaps more succinctly, the "in light of the record as a whole" language in
K.S.A. 77-621(d) requires (1) a review of the evidence both supporting and contradicting
the Board's findings; (2) an examination of the presiding officer's credibility
determination, if any; and (3) a review of the agency's explanation as to why the evidence
supports its findings. Redd v. Kansas Truck Center, 291 Kan. 176, 182-83, 239 P.3d 66(2010).
Analysis
As we have already outlined, the heart amendment limits a worker's ability to
receive compensation in a workers compensation case when the injury was the result of a
heart attack. It prohibits compensation unless it is shown that the exertion of work
necessary to precipitate the heart attack was more than the employee's usual work in the
course of the employee's regular employment. K.S.A. 2020 Supp. 44-501(c)(1).
"[T]he standard for determining what is usual exertion is the work history of the
individual involved." Mudd, 275 Kan. at 192. We are to consider the exertion typically
required to do the work-related task that resulted in the injury and the exertion required to
do the task on the day of the injury. The exertion need not be a daily requirement for it to
fall within the definition of usual work. A task done only occasionally can be considered
usual work. See 275 Kan. at 193.
In this case, we must determine whether the November 2016 business trip was
Thomas' usual work in the course of his regular employment and whether the exertion of
work on the trip was greater than usual.
First, the parties dispute if business trips were still part of Thomas' job duties.
Pamela focuses on Thomas' June 2016 conversation with Burke while Thomas was in the
hospital recovering from his first heart attack. Thomas' granddaughter stated she was in
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the hospital room when Burke called, and she placed the call on speakerphone. During
the call, she heard Thomas inform Burke he did not want to travel anymore, and Burke
told Thomas that was not a problem and not to worry about it anymore. Pamela and
Thomas' daughter testified Thomas told them about his conversation with Burke.
However, when Thomas returned to work, Burke no longer worked at Excel, and
Thomas was told out-of-town business trips were still a part of his job and he would have
to travel as part of his duties. Lawson-Hetcheli confirmed this.
Given this record, sufficient evidence exists to support the Board's finding that
out-of-town travel was part of Thomas' job in November 2016. While Burke told Thomas
he would not have to travel anymore, there is no evidence his job duties were officially
changed. Pamela admitted Excel told Thomas when he returned to work that he would
have to travel for work. Thus, the evidence is sufficient for a reasonable person to accept
it as supporting the conclusion that out-of-town travel was part of Thomas' job.
Briefly, Pamela also raises the argument that even if out-of-town travel were part
of Thomas' job, his job description stated travel would be to address deficiencies
impacting production. Pamela argues the November 2016 trip was not part of Thomas'
usual work because the purpose of the trip was to tour Clow Stamping and perform a new
supplier review of Double H Manufacturing, not to address quality deficiencies impacting
production. Pamela also argues that Thomas' acts of booking flights, reserving hotels, and
arranging for rental cars were not part of his job description.
What is considered usual work is not determined by the job description but by the
work actually performed by the employee. See Mudd, 275 Kan. at 192-93; Nichols, 211
Kan. at 925. Pamela bears the burden to prove the trip was not usual work. See K.S.A.
77-621(a)(1). Pamela's assertion that Thomas did not make work trips like the November
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2016 trip is unsupported by the record. Lawson-Hetcheli testified the November 2016 trip
was typical of his prior trips with Thomas.
We must also determine if the exertion of the work on the November 2016 trip
was more than Thomas' usual work in the course of his regular employment. Pamela's
argument here focuses on the hours Thomas worked on the trip. Pamela points to the job
description which lists Thomas' usual work hours as being from 8 a.m. to 5 p.m. and that
he was not expected to work more than 45 hours in a week. Pamela does the math to
show that on the business trip Thomas averaged 14.25 hours a day and worked over 65
hours that week.
The problem with Pamela's argument is that it again relies heavily on Thomas' job
description, not the actual work he performed. See Mudd, 275 Kan. at 192-93; Nichols,
211 Kan. at 925. There is evidence supporting the Board's finding that the November
2016 trip was part of Thomas' usual work. Lawson-Hetcheli testified the trip was typical
of the trips they usually took and nothing unusual occurred. In other words, the exertion
of the business trip—the long hours, waking up early, getting to bed late, and driving—
was part of Thomas' usual work in the course of his regular employment.
Informative here is Mudd. In Mudd, a nurse, employed for over 10 years at the
hospital, worked in the intensive care unit and emergency room. "Mudd was called upon
to respond to 'code blues,' which required her to stop what she was doing and run to help
resuscitate a dying patient." 275 Kan. at 188-89. In the six months before September 13,
1999, the hospital had 19 code blues and Mudd had responded to 7 of them. Her husband
testified she was required to run to the code blues and afterward would be upset, stressed,
and unable to sleep. On September 13, 1999, Mudd passed out while responding to a
code blue. A doctor determined she had suffered a cerebrovascular stroke, and she died
10 days later. A doctor testified her stroke was likely the result of a preexisting aneurysm,
which weakened the blood vessel wall. The weak area develops a bulge and eventually
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ruptures, typically following exertion or stress. The doctor testified responding to a code
blue could cause the increase in blood pressure and responding to a code blue was within
the normal duties of an ICU nurse. The Kansas Supreme Court found the record lacked
evidence about the nurse's usual work or level of exertion required to perform her usual
duties. Without a baseline of what was usual, the court held it could not determine what
was unusual. 275 Kan. at 193.
Here, Thomas' wife and daughter testified that the November 2016 trip caused
Thomas a great amount of stress and worry. Pamela's medical experts testified the
increased stress from the trip likely caused his fatal heart attack. Pamela also relies on
Excel's medical expert who testified that the extensive travel, stresses, and missed
medication caused stress that did not arise from Thomas' normal job duties. But Pamela's
description of Dr. Farrar's deposition leaves out a key detail: Pamela's attorney asked Dr.
Farrar to assume travel was not part of Thomas' usual work and Thomas just worked 8 to
5 at a desk. That scenario does not accurately reflect Thomas' usual work as some
evidence does exist proving the November 2016 trip was part of Thomas' usual duties.
Admittedly, no specific evidence was presented by either party on Thomas' other out-of-
town trips for comparison or how often he traveled, but we conclude that Lawson-
Hetcheli's testimony constitutes sufficient evidence such that a reasonable person could
find the November 2016 trip was usual work in the regular course of Thomas'
employment. Sufficient evidence supports the Board's finding.
III. DID THE BOARD ERR WHEN IT FOUND PAMELA'S EXTERNAL FORCES ARGUMENT
MOOT?
Finally, Pamela argues the Board erred when it dismissed all other issues as moot.
In addition to claiming that Thomas' heart attack was caused by exertion beyond his usual
work, Pamela's alternative theory was that Thomas' heart attack was triggered by an
external force or agency. Pamela argues the Board should have addressed this argument
15
on the merits because, if true, the heart amendment would not apply and she is entitled to
benefits. Excel does not address mootness but instead argues emotional stress can never
be an external factor.
Standard of Review
Whether an external force or agency produced the worker's disability is a factual
question. What qualifies as an external force is a legal question subject to de novo
review. Mudd, 275 Kan. at 193-94.
Here, the Board did not decide whether Thomas' heart attack was caused by
external forces, finding the issue moot. The determination of mootness is reviewed "de
novo and is predicated on prudential considerations." State v. Roat, 311 Kan. 581, 590,
466 P.3d 439 (2020). An issue is not moot unless "it is clearly and convincingly shown
the actual controversy has ended, the only judgment that could be entered would be
ineffectual for any purpose, and it would not impact any of the parties' rights." State v.
Tracy, 311 Kan. 605, 608, 466 P.3d 434 (2020); Roat, 311 Kan. at 584. Mootness is a
discretionary policy used to avoid unnecessary issues but allows a court to consider an
issue "when judicial economy would benefit from a decision on the merits." 311 Kan. at
587. When considering mootness, "an appellate court should consider whether an issue:
(1) is one of statewide interest and of the nature that public policy demands a
decision . . . ; (2) remains a real controversy; or (3) is capable of repetition." State v.
Hollister, 300 Kan. 458, 467, 329 P.3d 1220 (2014).
Analysis
The heart amendment limiting compensation applies only if exertion from work
was the precipitating cause of the injury or disability. When exertion is not an issue, the
claimant may prevail by showing an "'external force'" was the precipitating cause of the
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worker's injury or disability. Mudd, 275 Kan. at 193. To show an external force was the
precipitating cause of the injury or disability, "'[1] the presence of a substantial external
force in the working environment must be established and [2] there must be expert
medical testimony that the external force was a substantial causative factor in producing
the injury and resulting disability.'" 275 Kan. at 194.
After concluding Pamela's claim for benefits was prohibited by the heart
amendment because the November 2016 trip was part of Thomas' usual work in the
course of his regular employment, the Board perfunctorily dismissed the rest of Pamela's
claims, stating: "All other issues are moot." Moreover, the Board offered no explanation
as to why Pamela's external forces argument was moot. Excel supplies us with no
explanation either, instead choosing to argue why the claim fails on its merits.
However, the merits of Pamela's alternative claim is not before us because the
Board never reached that issue. The only question before us is whether the issue is moot.
And our review of the record shows this question falls within Hollister's second option—
a live controversy remains.
Pamela's unusual exertion argument and her external forces argument raise two
separate theories of recovery which are not necessarily mutually exclusive. In her unusual
exertion argument Pamela argues Thomas' exertions causing his heart attack were greater
than the usual exertions required to perform his regular job. But in her external forces
argument, Pamela argues the heart amendment is inapplicable because she claims an
external force applied to cause Thomas' heart attack. These are two separate theories of
recovery requiring different evidence and different elements to be proven. Thus, the fact
that Pamela failed to prove that Thomas' heart attack was triggered by unusual exertions
as part of his job does not necessarily preclude a claim that an external force triggered
Thomas' heart attack. Thus, Pamela's alternative claim is not moot and remains
17
unaddressed. The Board has a duty to evaluate Pamela's external force theory of recovery
absent an explanation of why it is somehow moot.
Excel sidesteps the mootness issue and argues we should just uphold the Board
anyway because Pamela cannot prevail on the merits as stress cannot be considered an
external force. Excel's argument is based on a misreading of Mudd. In Mudd, the Kansas
Supreme Court held stress, as a matter of law, could not be an external factor under the
facts of the case, but other factors that lead to stress can be external forces. The Mudd
court recognized there may be some circumstances where the claimant can demonstrate
the stress was caused by factors external to the claimant's exertion or show unusual work
or unusual exertion was a causative factor of unusual stress. 275 Kan. at 196. Here,
Pamela argued Thomas' stress arose from the severe winter weather cancelling his first
flight and delaying his makeup flight, as well as the fact that the delay led him to run out
of medicine.
We not in a position to determine whether an external factor existed absent the
Board's findings because whether an external force was a substantial causative factor in
producing Thomas' heart attack is a factual question to be determined by the ALJ and
Board, not us. See Mudd, 275 Kan. at 193.
We affirm the Board's interpretation of the heart amendment and find sufficient
evidence supports the Board's findings that Thomas' November 2016 trip was a part of
his usual work in the regular course of his job. But we reverse the Board's finding of
mootness and remand the case to the Board for it to consider whether an external force
caused Thomas' heart attack.
Affirmed in part, reversed in part, and remanded with directions.
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