Halford v. Nowak Construction Co.

186 P.3d 206, 39 Kan. App. 2d 935, 2008 Kan. App. LEXIS 100
CourtCourt of Appeals of Kansas
DecidedJune 20, 2008
DocketNo. 98,258
StatusPublished
Cited by4 cases

This text of 186 P.3d 206 (Halford v. Nowak Construction Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Halford v. Nowak Construction Co., 186 P.3d 206, 39 Kan. App. 2d 935, 2008 Kan. App. LEXIS 100 (kanctapp 2008).

Opinions

Greene, J.:

In this workers compensation appeal, the employer and its insurer, Nowak Construction Company and St. Paul Fire & Marine Insurance Company respectively, appeal a decision of the Kansas Workers Compensation Appeals Board (the Board) awarding compensation to the survivor of Nowak’s employee, Kenneth Halford, after the employee was killed in a truck accident. The appeal requires that we construe and apply the “going and coming rule” reflected in K.S.A. 44-508(f), together with its statutory and judicially created exceptions. We conclude that the Board properly applied the exception for travel that is an intrinsic part of the job, which results in compensability for Halford’s accident, despite the employer’s argument that Halford should be denied benefits for an accident occurring as he traveled generally from his home to his place of employment.

Factual and Procedural Background

Halford was employed by Nowak as a water and sewer foreman for its road construction business. He drove his specially equipped company truck to various job sites, where heavy equipment could be refueled from his truck’s bed-mounted fuel tank. On the morning of his death, Halford was driving from his home in Reno County to pick up his “lead man,” Doug Benson, before stopping by the Nowak “yard” in Goddard to pick up supplies for its current [937]*937job site, also in Goddard. Before reaching the home of Benson, Halford’s truck drifted off the side of the road, flipped, and rolled, resulting in Halford’s death. Halford was survived by his son Kenneth Halford, who made application for workers compensation benefits.

The administrative law judge concluded Halford was on his way to assume the duties of employment when the accident occurred, and applied the “going and coming rule” of K.S.A. 44-508(f) to deny benefits. On appeal, the Board reversed the ALJ, concluding:

“[Halford’s] travel was, indeed, an inherent part of claimant’s job as a foreman for respondent’s construction business. Respondent provided claimant with a vehicle that not only transported himself to and from the job site and the company shop, but also tools and fuel for equipment, all used on the construction site(s). Although the ALJ believed there was no ‘evidence that die vehicle was provided to [cjlaimant for that purpose,’ the majority finds that the law does not require an admission or express declaration of the vehicle’s purpose in order for die inherent travel exception to apply.
“The majority makes this finding not based solely upon the provision of a vehicle, which was used to transport claimant and, at times, a co-worker to the job sites, but that the truck also was equipped with other items that were used in furtherance of respondent’s construction business. And the greater weight of the evidence indicates tiiat claimant proceeded direcdy to the construction site each day and did not, routinely, report to the company shop each day before reporting to the construction site. Based on these facts, the majority finds that travel was part and parcel of claimant’s job as a construction foreman.”

Two members of the Board dissented, seeing “no distinction between this scenario and the penumbra of risks to which every other employee might be exposed on their daily commute."

Nowak and St. Paul appeal.

Standards of Review

The Workers Compensation Act specifically adopts the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 etseq., for workers compensation cases. K.S.A. 2007 Supp. 44-556(a). The appellate court’s review of the Board’s decision “shall be upon questions of law.” K.S.A. 2007 Supp. 44-556(a). The interpretation of K.S.A. 2007 Supp. 44-508(f) — containing the going and coming rule and its exceptions — is a question [938]*938of law subject to de novo review. Although the Board’s interpretation of the statute is persuasive, it is not binding on the courts. Foos v. Terminix, 277 Kan. 687, 692-93, 89 P.3d 546 (2004).

To the extent the Board has based its action on a determination of fact, whether implied or contained in its written findings of fact, we must determine whether such fact is supported by evidence that is substantial when viewed in light of the record as a whole. K.S.A. 77-621(c)(7). To the extent that the ultimate issue here is whether an accident arises out of and in the course of employment, entitling Halford to compensation, this is a question of fact. See Titterington v. Brooke Insurance, 277 Kan. 888, 894, 89 P.3d 643 (2004).

Did the Board Err in Determining that the “Going and Coming Rule” of K.S.A. 44-508(f) Should Not Be Applied to Deny Benefits?

A workers compensation claimant has the burden of proving the conditions on which the claim is based. One such condition is the requirement that the claimant show that be or she suffered a “personal injury by accident arising out of and in the course of employment.” K.S.A. 2007 Supp. 44-501(a); Sumner v. Meier’s Ready Mix, Inc., 282 Kan. 283, 288, 144 P.3d 668 (2006).

The “going and coming rule” excludes certain injuries from falling within the scope of “out of and in the course of employment.” 282 Kan. at 288-89. The rule is codified in K.S.A. 2007 Supp. 44-508(f), which states, in relevant part:

“The words ‘arising out of and in the course of employment’ as used in the workers compensation act shall not be construed to include injuries to the employee occurring while the employee is on the way to assume the duties of employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence. An employee shall not be construed as being on the way to assume the duties of employment or having left such duties at a time when the worker is on the premises of the employer or on the only available route to or from work which is a route involving a special risk or hazard and which is a route not used by the public except in dealings with the employer. An employee shall not be construed as being on the way to assume the duties of employment, if the employee is a provider of emergency services responding to an emergency.”

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Cite This Page — Counsel Stack

Bluebook (online)
186 P.3d 206, 39 Kan. App. 2d 935, 2008 Kan. App. LEXIS 100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/halford-v-nowak-construction-co-kanctapp-2008.