Shields v. K.A.T. Transportation

53 P.3d 1242, 30 Kan. App. 2d 1069, 2002 Kan. App. LEXIS 804
CourtCourt of Appeals of Kansas
DecidedSeptember 20, 2002
DocketNo. 87,746
StatusPublished

This text of 53 P.3d 1242 (Shields v. K.A.T. Transportation) 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
Shields v. K.A.T. Transportation, 53 P.3d 1242, 30 Kan. App. 2d 1069, 2002 Kan. App. LEXIS 804 (kanctapp 2002).

Opinion

Marquardt, J.:

David Shields appeals the decision of the Workers Compensation Board (Board), which found that Shields, K.A.T. Transportation (K.A.T.), and ACE-USA were not subject to the Kansas Workers Compensation Act (Act). We affirm.

While Shields was in Wichita, Kansas, on February 10, 2000, he was informed by telephone that he was hired as a long-haul truck driver by K.A.T., a Chesterton, Indiana, trucking company.

Shields began orientation on February 14, 2000, in Indiana. During orientation, he signed various agreements that stated all [1070]*1070disputes with K.A.T. would be resolved under Indiana law, including workers compensation claims.

On November 24, 2000, after unloading boxes in Ohio, Shields experienced pain in his back and neck. The following morning, he experienced more pain in his back and tingling in his left arm. After Shields spoke with K.A.T. representatives, he visited an emergency room in Indiana. Shields’ problem was diagnosed as a pinched nerve or dislocated disk in his neck. Tylenol and steroids were prescribed.

Shields drove to Wichita and saw Dr. Scott Rees on December 1, 2000. Rees diagnosed Shields as having a degeneration and spurring of a spinal cord disk. He prescribed medication and informed Shields not to drive while on the medication. At K.A.T.’s request, Shields drove the truck back to Indiana and he returned to Kansas by train.

Shields filed an application for a workers compensation hearing, claiming that he had an injury to his back and neck on or about November 24, 2000, and “each day worked thereafter” from repetitive overuse and truck driving. He testified that he had been driving trucks for 25 years and would occasionally experience soreness after driving for long periods of time. He always worked through this discomfort without visiting a doctor. He testified that he had experienced soreness in his back 2 weeks prior to the injury in Ohio. He testified that he informed a K.A.T. employee after the injury that his back had been sore for a couple of weeks. Shields was taken off work on December 1, 2000.

K.A.T. claimed that Kansas was without jurisdiction to consider his claim because Shields had agreed to Indiana jurisdiction for workers compensation claims. K.A.T. argued that Shields’ alleged injury occurred outside of Kansas and his employment contract was entered into outside of Kansas. Finally, K.A.T. claimed that even if Shields’ injury occurred in Kansas, the election of Indiana law precluded Kansas from exercising jurisdiction of the claim.

Shields argued that his injury occurred in Kansas through years of driving trucks, specifically while finishing his duties for K.A.T., and that Kansas has jurisdiction of his claim because his employment contract was entered into in Kansas.

[1071]*1071The administrative law judge (ALJ) found that Shields had selected Indiana as the forum for resolving workers compensation claims and that his injuiy was sustained outside the state of Kansas. Therefore, Kansas did not have jurisdiction of his claim.

Shields appealed the ALJ’s decision to the Board. The Board agreed that Shields’ employment contract was made in Kansas when Shields accepted the job offer on the telephone. The Board found that Shields’ injuiy occurred in Ohio while unloading his truck. The Board then found that Shields voluntarily signed agreements wherein he agreed that Indiana workers compensation laws would apply to the settlement of any claim arising out of a job-related injuiy. The Board concluded that the parties were not subject to Kansas workers compensation laws. Shields appeals.

Shields claims that his injury occurred in Kansas. The Board’s decision regarding the place of injury represents a factual finding. The determination of whether the Board’s factual findings are supported by substantial competent evidence is a question of law. An appellate court is to review the evidence in the light most favorable to the prevailing party below. Griffin v. Dale Willey Pontiac-Cadillac-GMC Truck, Inc., 268 Kan. 33, 34, 991 P.2d 406 (1999).

The Board also found that Shields failed to prove he was injured further while driving back to Kansas. That finding should be affirmed absent proof of an arbitrary disregard of undisputed evidence or an extrinsic consideration such as bias, passion, or prejudice. Griffin, 268 Kan. at 34.

K.S.A. 44-506 provides that the Act shall apply to injuries sustained outside the state when the contract of employment was made within the state, unless such contract otherwise specifically provides. Shields claims that the injury occurred in Kansas and the contract provisions electing Indiana law are insufficient to deprive Kansas of jurisdiction.

Even though the Board found that the employment contract was made in Kansas, on appeal, K.A.T. briefly attempts to argue that the contract was not actually made until Shields took a physical examination and drug test and complete orientation in Indiana. However, K.A.T. did not cross-appeal this issue; therefore, the Board’s finding on this issue is final.

[1072]*1072Shields testified that he had not been working as hard during the 2 weeks prior to his injury due to soreness in his back. He could not point to a specific time and place the injuiy occurred. He also testified that he would not usually be sore from loading or unloading a truck.

Linda Payton, K.A.T.’s insurance administrator and claims coordinator, stated in an affidavit that Shields informed her he did not believe his injuries were caused by the job but were the result of years of driving trucks. Shields argues that his injuiy should be classified as a repetitive use or degenerative type of injury and, therefore, his claim should be considered under Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 227, 885 P.2d 1261 (1994), where the claimant’s injury was deemed to have occurred on the last day he worked. Shields argues that the place of the last day worked becomes the place of injuiy. Here, part of Shields’ last day of work occurred in Kansas.

In Berry, this court addressed the problem of assigning a date of injury to a claimant suffering from carpal tunnel syndrome. In attempting to determine whether carpal tunnel is an occupational disease or an accidental injuiy, the court determined that carpal tunnel is caused by repetitive trauma over a long period of time. The court stated: “While it is true that it is caused by trauma and thereby fits the definition of an ‘injury caused by accident,’ it is nonetheless a condition that defies any attempt to affix the precise date the accident occurred.” 20 Kan. App. 2d at 229. To simplify the process of determining a date of injury, the court adopted a rule that “the date from which compensation flows is the last date worked by the claimant.” 20 Kan. App. 2d at 229-30.

Shields also cites Treaster v. Dillon Companies, Inc., 267 Kan. 610, 987 P.2d 325 (1999), for the proposition that injuries suffered as the result of micro-traumas leading to increasing pain are also subject to the “last day worked” rule.

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Related

Graff v. Trans World Airlines
983 P.2d 258 (Supreme Court of Kansas, 1999)
Treaster v. Dillon Companies, Inc.
987 P.2d 325 (Supreme Court of Kansas, 1999)
Griffin v. Dale Willey Pontiac-Cadillac-GMC Truck, Inc.
991 P.2d 406 (Supreme Court of Kansas, 1999)
Babe Houser Motor Co. v. Tetreault
14 P.3d 1149 (Supreme Court of Kansas, 2000)
Shehane v. Station Casino & CNA Insurance
3 P.3d 551 (Court of Appeals of Kansas, 2000)
Berry v. Boeing Military Airplanes
885 P.2d 1261 (Court of Appeals of Kansas, 1994)

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Bluebook (online)
53 P.3d 1242, 30 Kan. App. 2d 1069, 2002 Kan. App. LEXIS 804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shields-v-kat-transportation-kanctapp-2002.