Young v. Great Bend Cooperative Assn

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No. 110,025

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

BRENDA YOUNG,
Appellee,

v.

GREAT BEND COOPERATIVE ASSN.

and

TRIANGLE INSURANCE CO.,
Appellants.

SYLLABUS BY THE COURT


1.
The impairment defense found in K.S.A. 2010 Supp. 44-501(d)(2) that bars
workers compensation benefits to a worker injured on the job requires the employer to
prove the worker was impaired at the time of the injury and the impairment contributed to
the worker's injury or disability.

Appeal from Workers Compensation Board. Opinion filed April 18, 2014. Affirmed.

Eric T. Lanham and Douglas M. Greenwald, of McAnany, Van Cleave & Phillips, P.A., of
Kansas City, for appellants.

Lawrence M. Gurney, of Lee, Gurney & Hess, of Wichita, for appellee.

Before LEBEN, P.J., GREEN and HILL, JJ.

HILL, J.: Great Bend Cooperative Association and its insurer, Triangle Insurance
Company, argue that the Workers Compensation Board erred when it held they failed to
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prove the impairment defense in this workers compensation case. The Co-op contends
Young, suffering from adult-onset asthma, was not entitled to benefits because she was a
smoker and had smoked crack cocaine in the past. Because the Co-op has failed to prove
Young was impaired at the time of her injury, we hold the Board did not err. We affirm.

Young started work during harvest.

The facts are undisputed. Brenda Young first worked as a scale house operator for
Great Bend Cooperative during the 2009 fall harvest. That job did not involve open
exposure to airborne grain dust. The next fall, Young returned to work for the Co-op, this
time as a grain elevator operator from August 2010 until October 2010. This work
exposed her to grain dust.

In October 2010, Young developed a constant cough and fever. She sought
medical treatment from a local health clinic. The treating physician prescribed inhalants
and ordered chest x-rays. The next day, Young notified the Co-op of her symptoms and
the medical treatment she had received. The employer sent Young to Dr. Keener, who
separately prescribed inhalants and referred Young to Dr. Gerald Kerby, a pulmonologist.

Prior to this time, Young had no breathing or upper respiratory problems. Young
smoked about half a pack of cigarettes a day for 2 years before her difficulties at the Co-
op. Young stopped smoking cigarettes after she developed her breathing difficulties in
October 2010. Young also admitted she had smoked crack cocaine twice a month from
2003 until 2006 but maintained she had not smoked illegal drugs since 2006. Young has
not worked since October 2010. The parties stipulated to October 22, 2010, as the date of
accident.

Dr. Kerby examined Young twice. After conducting some tests, Dr. Kerby
concluded Young had adult-onset asthma. He testified that the grain dust "triggered"
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Young's asthma but attributed the cause of Young's asthma equally to her history of
smoking cigarettes or crack cocaine—both respiratory irritants—and her exposure to dust
while employed at the Co-op. Dr. Kerby determined Young had a 20 percent whole
person impairment of function due to her asthma and apportioned 50 percent of Young's
functional impairment to smoking and "lifestyle" and the remaining 50 percent to grain
dust exposure.

Young sought workers compensation benefits for the respiratory injury she
allegedly sustained due to her exposure to grain dust. The Co-op raised the impairment
defense found in K.S.A. 2010 Supp. 44-501(d)(2), alleging Young was not entitled to
compensation because of her history of smoking tobacco and crack cocaine.

We review the administrative agency history.

Rejecting the impairment defense raised by the Co-op, the administrative law
judge entered an award granting Young permanent partial disability benefits. After noting
Young last smoked crack cocaine in 2006 and had no symptoms of asthma until she
started working for the Co-op in 2010, the ALJ found the causal connection between
smoking crack cocaine 4 years earlier and the development of her asthma was
speculative. Moreover, the ALJ ruled there was no evidence to support the requirement in
the statute that a claimant's illegal drug use "must both cause impairment and be
contemporaneous with the accident." The ALJ also found Young's prior tobacco use was
lawful, did not impair her ability to perform the duties of her job, and was more akin to a
preexisting condition or disability. The Co-op appealed to the Workers Compensation
Board.

The Board affirmed the award, holding the Co-op did not meet its burden to prove
the impairment defense. Citing Wiehe v. Kissick Construction Co., 43 Kan. App. 2d 732,
232 P.3d 866 (2010), as authority, the Board concluded K.S.A. 2010 Supp. 44-501(d)(2)
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required that the "respondent must demonstrate claimant was 'impaired' within the
meaning of the statute and that claimant's injury, disability or death was 'contributed to'
by claimant's use of alcohol or drugs."

The Board found the Co-op did not prove Young was "impaired" as that term is
defined in K.S.A. 2010 Supp. 44-501(d)(2) because:

 there was no evidence of any concentration of crack cocaine in Young's
body when her injury occurred, and
 Young had not experienced any symptoms of asthma before working for
the Co-op in 2010.

Finally, the Board found the Co-op provided no persuasive authority that the
legislature intended to include tobacco or tobacco smoke as an applicable drug, chemical,
or other compound to which the impairment defense could apply.

The issue in this appeal is the same.

The Co-op maintains that it met its burden of proof. In its view, Dr. Kerby's
uncontroverted medical testimony that Young's prior use of smoking tobacco and crack
cocaine "contributed" to the development of her adult-onset asthma relieved it from any
liability for her disability. It argues that under the plain meaning rule established in
Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607-08, 214 P.3d 676 (2009), the
Board should have construed the first sentence of the impairment defense differently.

Our rules of review

Review of this issue only concerns whether the Board correctly construed and
applied K.S.A. 2010 Supp. 44-501(d)(2). In such cases, appellate courts have unlimited
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review of questions involving the interpretation or construction of a statute, owing "'[n]o
significant deference"' to the agency's or the Board's interpretation or construction. Ft.
Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs., 290 Kan. 446, 457, 228 P.3d
403 (2010). Moreover, when an appellant alleges the Board erroneously applied the law
to undisputed facts, an appellate court has de novo review of the issue. Craig v. Val
Energy, Inc., 47 Kan. App. 2d 164, 166, 274 P.3d 650 (2012), rev. denied 297 Kan. 1244
(2013). Finally, to the extent that a claimant's argument relates to the Board's
interpretation and application of a worker's compensation statute, this court shall grant
relief only if it determines that "the agency has erroneously interpreted or applied the
law." K.S.A. 2013 Supp. 77-621(c)(4).

The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. Bergstrom, 289 Kan. at 607. An
appellate court must first attempt to ascertain legislative intent through the statutory
language enacted, giving common words their ordinary meanings. Northern Natural Gas
Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106 (2013). In
Bergstrom, the Kansas Supreme Court held:

"When a workers compensation statute is plain and unambiguous, this court must
give effect to its express language rather than determine what the law should or should
not be. The court will not speculate on legislative intent and will not read the statute to
add something not readily found in it. If the statutory language is clear, no need exists to
resort to statutory construction." 289 Kan. at 607-08.

However, even if the statutory language is clear, appellate courts must consider
various provisions of an act in pari materia with a view of reconciling and bringing the
provisions into workable harmony if possible. And the courts must construe statutes to
avoid unreasonable or absurd results and presume the legislature does not intend to enact
meaningless legislation. Northern Natural Gas Co., 296 Kan. at 918.

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Is the impairment defense applicable in this case?

At the time of Young's accident, K.S.A. 2010 Supp. 44-501(d)(2) stated:

"The employer shall not be liable under the workers compensation act where the
injury, disability or death was contributed to by the employee's use or consumption of
alcohol or any drugs, chemicals or any other compounds or substances . . . . In the case of
drugs or medications which are available to the public without a prescription from a
health care provider and prescription drugs or medications, compensation shall not be
denied if the employee can show that such drugs or medications were being taken or used
in therapeutic doses and there have been no prior incidences of the employee's
impairment on the job as the result of the use of such drugs or medications within the
previous 24 months. It shall be conclusively presumed that the employee was impaired
due to alcohol or drugs if it is shown that at the time of the injury that the employee had
an alcohol concentration of .04 or more, or a GCMS confirmatory test by quantitative
analysis showing a concentration at or above the levels shown on the following chart for
the drugs of abuse listed: . . . ."

One can see that the first sentence of this statute states that the employer is not
liable for workers compensation benefits where the worker's use or consumption of
alcohol, drugs, chemicals, compounds, or substances contributed to the injury, disability,
or death of the worker. The legislature included the term "contributed" as the employer's
standard of proof in 1993 after amending the 1967 standard of proof requiring that the
injury to the worker resulted '"solely from his intoxication'" by changing the word
"solely" to "substantially" in 1974. Wiehe, 43 Kan. App. 2d at 743 (quoting Foos v.
Terminix, 277 Kan. 687, 697-98, 89 P.3d 546 [2004], for the explanation of the
legislative history of the impairment defense).

The second sentence of the statute provides that in those instances of therapeutic
doses where the worker has taken either over-the-counter or prescription drugs for
medical purposes, the worker must show there were no prior incidences of the worker's
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impairment on the job because of the use of such drugs or medications. That scenario
does not fit here. It is important to note at this point that had it wanted to, the legislature
could have listed tobacco or tobacco smoke in this sentence.

Finally, the third quoted sentence of the impairment defense, as amended in 1993
and 2000, creates a conclusive presumption of impairment if a worker's chemical tests
show amounts of alcohol or drugs in excess of the statutory levels when the worker was
injured. See L. 2000, ch. 160, sec. 5; L. 1993, ch. 286, sec. 24. So, if, for example, a
worker had a blood-alcohol concentration greater than .04 at the time of his or her injury,
that is conclusive proof of impairment.

Along this same line, a prior ruling by a panel of this court is instructive. In Wiehe,
the panel addressed whether the employer had met its burden showing that the worker's
injury or disability was contributed to by his use of marijuana, as evidenced by a positive
drug test at a level that under K.S.A. 2009 Supp. 44-501(d)(2) conclusively presumed the
worker was impaired at the time of the accident. That alone did not necessarily prove that
the worker's impairment was the cause of his injury.

In discussing the relationship between the employer's burden to show that the
claimant's use of drugs contributed to the injuries and the conclusive presumption of
impairment provision in the statute, the panel found:

"[A] conclusive presumption of impairment does not eliminate the employer's burden to
show that an employee's injury, disability, or death was contributed to by the employee's
use or consumption of alcohol or any drugs, chemicals, or any other compounds or
substances under K.S.A. 2009 Supp. 44-501(d)(2)[;] it does allow the employer to
surmount a hurdle to meet the impairment exception under 44-501(d)(2)." Wiehe, 43 Kan.
App. 2d at 744.

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Wiehe clearly indicates that for an employer "to meet the impairment exception"
under K.S.A. 2010 Supp. 44-501(d)(2) it must prove two things. 43 Kan. App. 2d at 744.
The employer must show:

 the worker was impaired within the meaning of K.S.A. 2010 Supp. 44-
501(d)(2) at the time of the injury; and
 the impairment contributed to the worker's injury or disability.

The Wiehe court noted it is simply easier for the employer to prove the worker was
impaired if the worker was statutorily impaired. 43 Kan. App. 2d at 744. "Once it has
been established that the employee was [statutorily] impaired under 44-501(d)(2), no
additional evidence or argument can overcome that fact." Wiehe, 43 Kan. App. 2d at 744.

An unpublished opinion from another panel that relied upon Wiehe clarified the
interactions of these principles. In Hicks v. Butler Transport, Inc., No. 109,844, 2013 WL
6594296, at *3-4. (Kan. App. 2013) (unpublished opinion), the panel affirmed the
appeals board's decision approving a workers compensation award to a truck driver even
though his blood test indicated there were cocaine metabolites greater than the statutory
limit in his blood. The panel ruled that Butler Transport was required then to link Hicks'
impairment to his injuries and, since it did not, Hicks was entitled to benefits. 2013 WL
6594296, at *4.

Here, Dr. Kerby opined, "So you know, I can't say that one is more important than
the other. In fact I said it was 50/50. I can't really dissect out that one was more
important. I think they were both factors." He then proceeded to apportion the rating as
he would for a preexisting condition.

The Kansas Supreme Court has always held the statute required a showing of
impairment at the time of accident. In Schmidt v. Jensen Motors, Inc., 208 Kan. 182, Syl.
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¶ 1, 490 P.2d 383 (1971), the court first interpreted the intoxication provision in K.S.A.
44-501(b) and held that employers "have the burden of establishing that the injury to or
death of the workman results solely from his intoxication." Similarly, in Poole v. Earp
Meat Co., 242 Kan. 638, Syl. ¶ 4, 750 P.2d 1000 (1988), the court interpreted K.S.A.
1987 Supp. 44-501(d) and held: "To defeat a workers' compensation claim based on
claimant's intoxication, an employer must prove not only that the claimant was
intoxicated, but that such intoxication was the substantial cause of the injury." See Kindel
v. Ferco Rental, Inc., 258 Kan. 272, 285, 899 P.2d 1058 (1995) (same). And in Foos, the
court interpreted the same language at issue here and held that the employer had
established the worker was impaired due to alcohol and that substantial evidence
supported the administrative law judge's conclusion that the worker's consumption of
alcohol contributed to his injuries. 277 Kan. at 700.

If we were to rule as the Co-op suggests and no longer construe the provisions of
the impairment defense in pari materia, we would need to rewrite the statute. See
Northern Natural Gas Co., 296 Kan. at 918. We see no language in the statute that leads
us to conclude that if at some time in the past a worker's blood test levels exceeded the
statutory limits for cocaine, as an example, that the legislature intended the conclusive
presumption of impairment provision would apply and thus bar recovery of any benefits.
To the contrary, the statute calls for proof of impairment and contribution to the injury.

We view this case to be more like a worker with a preexisting condition. Given the
undisputed evidence that Young had not experienced any asthma symptoms prior to
October 2010, coupled with Dr. Kerby's opinion that had Young not been a smoker she
"might have tolerated" the grain dust, we view the Co-op's suggested reading of the
statute would in essence create an entirely new statutory scheme. Such a view would
prohibit workers compensation benefits if both the employer and worker were unaware at
the time the worker was hired that the worker's prior drug or tobacco use resulted in the
worker having a predisposition to an ailment that could arise from that preexisting
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condition being "triggered" by the employment conditions. We do not agree with this
view of the statute.

Here, it is undisputed that the conclusive presumption of impairment under K.S.A.
2010 Supp. 44-501(d)(2) did not apply to Young because there was no evidence
introduced showing blood levels of any drug. More importantly, the record is devoid of
any evidence that Young was impaired due to alcohol, drugs, chemicals, or any other
compounds or substances in her system at the time of the accident that would support a
finding of impairment. Cigarette smoking, a legal activity, is not on that list. In fact, the
Co-op concedes it "is not alleging on-the-job impairment as a basis for the drug defense
but instead is alleging that prior (as opposed to contemporaneous) use or consumption of
drugs, chemicals compounds or substances 'contributed to' the injury or disability."
Without any evidence of contemporaneous impairment, either shown through the
parameters establishing statutory impairment or other substantial evidence, the
affirmative defense under K.S.A. 2010 Supp. 44-501(d)(2) did not apply to Young's
claim.

The Board did not err. Affirmed.