Connolly v. Minsky's City Market

NOT DESIGNATED FOR PUBLICATION

No. 119,337

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

THEODORE CONNOLLY,
Appellee,

v

MINSKY'S CITY MARKET and
FREESTONE INSURANCE COMPANY,
Appellants.


MEMORANDUM OPINION

Appeal from Workers Compensation Board. Opinion filed December 21, 2018. Affirmed.

Ryan D. Weltz, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Overland Park, for
appellants.

Timothy E. Power, of Power Law Group, P.A., of Overland Park, for appellee.

Before ARNOLD-BURGER, C.J., LEBEN and BRUNS, JJ.

LEBEN, J.: Theodore Connolly was savagely beaten—sustaining serious and
permanent injuries—as he checked the area around the restaurant he managed before
heading home for the night. Whether he's entitled to workers'-compensation benefits
depends on whether his injuries arose out of his employment. The Kansas Workers
Compensation Appeals Board found they did. His employer, Minsky's City Market, and
its insurer have appealed, arguing that the criminal beating of Connolly wasn't tied to his
work.

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To be compensable, an injury must both "aris[e] out of and in the course of
employment." K.S.A. 44-501(a). Minsky's doesn't dispute that Connolly's injuries arose
in the course of his employment—he was on the job and doing job duties (checking the
restaurant premises before leaving) when he was injured. So the only question is whether
his injuries arose out of the employment. We will return to that legal standard after
briefly reviewing the facts here.

Connolly was injured in January 2002 while he was working as the general
manager of a Minsky's Pizza restaurant in Kansas City, Missouri. The injuries were
permanent, and Connolly has spastic quadriplegia.

Although the attack took place in Missouri, both parties agree that Kansas law
applies to the issue before us in this appeal. There also are no issues in the appeal related
to the length of time between the accident and the underlying workers'-compensation
award to Connolly. And because of the date of the accident, neither party argues that the
2011 amendments to the Kansas Workers Compensation Act apply. See Johnson v. U.S.
Food Service, 56 Kan. App. 2d 232, 250-51, 427 P.3d 996 (2018) (describing new
causation standards adopted in 2011), petition for rev. filed September 4, 2018.

Connolly oversaw the staff, daily restaurant operations, and the building housing
the restaurant. When arriving and when leaving each day, Connolly checked the outside
of the restaurant to make sure that the area was clean and outdoor coolers had been
secured.

On the day he was attacked, Connolly was preparing to leave work at about 8 p.m.
When he went to do his normal check outside, three men attacked him after he had gone
only a few steps outside the building.

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Connolly's own memory of the events is sketchy. Three men who had been
customers in the restaurant attacked him on the sidewalk, an area Connolly helped
maintain in good shape for the restaurant. Connolly was carrying a briefcase; the
attackers took it. Connolly had some paperwork related to his job in the briefcase.

Connolly's car was parked nearby in a city parking lot where Minsky's employees
often parked. Because a woman working at Minsky's had had her purse and car stolen
from that lot while Connolly was the restaurant manager, he had a policy to make sure
waitresses were escorted to their cars when they left work. Connolly said the area around
the restaurant wasn't well lit.

Minsky's owner, Paul Meachum, testified that Connolly's job duties required him
to be outside the building part of the time. Meachum also agreed that the lighting around
the building and the nearby parking lot was inadequate, and that the restaurant and cars
near it had been vandalized in the past. Even so, Meachum didn't consider the area
around the restaurant a high-crime area.

Based on this evidence, an administrative law judge found that Connolly's injury
arose out of his employment. Minsky's appealed to the Workers Compensation Appeals
Board. It too concluded that the injury arose out of Connolly's employment. The Board
cited Connolly's job duties outside the restaurant in support of its conclusion:

"Claimant was required to survey the outside property upon entering and leaving the
restaurant and check and secure the restaurant's outdoor coolers. It was in the
performance of these duties claimant was assaulted. The perpetrators of the assault on
claimant stole the briefcase claimant was carrying, which contained some restaurant
paperwork and other items. This shows a connection between claimant's work and the
assault. The area where the assault occurred was poorly lit. There had been prior crimes
committed against employees of [Minsky's] in the area around the business."

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"Claimant's duties placed him in a situation where he was at greater risk of
robbery and assault than the general public. This is not an unexplained event."

On appeal, Minsky's argues that the connection between Connolly's job and the
attack on him is too speculative. Minsky's relies on a Kansas Supreme Court case that
denied compensation in an unexplained attack on a man shot while at work on his
employer's premises. In that case, Siebert v. Hoch, 199 Kan. 299, 307, 428 P.2d 825
(1967), the court said that the connection between the injury (a death in Siebert) and the
employment "may not rest on mere surmise or conjecture." Minsky's argues that's the
case here. Connolly and the Board rely on a different Kansas Supreme Court case,
Hensley v. Carl Graham Glass, 226 Kan. 256, 597 P.2d 641 (1979), in which the court
found the connection between job and injury sufficient to say the injury arose out of the
employment.

Before we review those arguments, we should set out the legal rules that guide our
review. The Kansas Judicial Review Act governs the review of cases arising under
the Workers Compensation Act. K.S.A. 44-556(a). At a hearing before the Workers
Compensation Appeals Board, the claimant has the burden of proving his or her right to
compensation. Moore v. Venture Corporation, 51 Kan. App. 2d 132, 137, 343 P.3d 114
(2015). On appeal to this court, the party claiming error has the burden to show it. K.S.A.
77-621(a)(1); Moore, 51 Kan. App. 2d at 137.

The only question in this appeal is whether Connolly's injury arose out of his
employment. That’s a question of fact that the Board decides. See Atkins v. Webcon, 308
Kan. 92, 95, 419 P.3d 1 (2018); Scott v. Hughes, 294 Kan. 403, 415, 275 P.3d 890
(2012). Our review of questions of fact is limited to whether the Board's factual findings
are supported by substantial competent evidence. K.S.A. 2017 Supp. 77-
621(c)(7); Moore, 51 Kan. App. 2d at 137. Substantial evidence is evidence that a
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reasonable person would accept as sufficient to support a conclusion. Buchanan v. JM
Staffing, 52 Kan. App. 2d 943, 948, 379 P.3d 428 (2016).

In determining whether there's enough evidence to support the Board's factual
findings, we do not reweigh the evidence or make our own independent review of the
facts. We simply determine, after reviewing all the evidence—including both evidence
that supports the Board's findings and evidence that detracts from them—whether the
evidence supporting the Board's decision has been so undermined by cross-examination
or by other evidence that it cannot support the decision. Moore, 51 Kan. App. 2d at
137-38. Unless that has happened, we must uphold findings supported by substantial
evidence even though evidence in the record would have supported contrary
findings. Poff v. IBP, Inc., 33 Kan. App. 2d 700, 706, 106 P.3d 1152 (2005).

The specific factual question here—whether Connolly's injury arose out of his
employment—comes down to whether the injury was sufficiently connected to his work.
Atkins v. Webcon, 308 Kan. 92, 98, 419 P.3d 1 (2018). "'[T]he focus of inquiry should be
on whether the activity that results in injury is connected to, or is inherent in, the
performance of the job.'" 308 Kan. at 98 (quoting Bryant v. Midwest Staff Solutions, Inc.,
292 Kan. 585, 596, 257 P.3d 255 [2011]).

With that overview, let's return to the two cases the parties most rely on, Siebert
and Hensley.

In Hensley, the employee, Hensley, was installing glass on the roof of a parking
garage when a sniper started firing from a nearby hotel. Hensley was shot and killed; nine
others in the area were also shot. The shooter had no connection to Hensley or any of the
other victims. The administrative official then tasked with hearing the case, at that time
called the workmen's-compensation director, concluded that there was a causal
connection between the employment and Hensley's death—that his position doing his job
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on a rooftop had made him a prime target for the sniper. The district court, which heard
the appeal first, agreed, and the Kansas Supreme Court affirmed.

Siebert also involved an employee killed while working. Siebert managed the
distribution office of a local dairy. Siebert and his wife had worked together in the
business, but she separated from him only two days before his death. Siebert was found
dead, shot in the head, lying on a couch in his office. A milk truck was loaded and
hooked up to refrigeration.

He was found clothed only in shorts, his other clothes hanging on a rack; some
women's clothing that he had apparently worn was on the floor at the foot of the couch.
There was no sign of forcible entry, his wallet wasn't taken, and the office safe wasn't
disturbed. There was also evidence that his brother had recently said that he was angry
enough with Siebert to kill him.

The director denied a workers'-compensation award, finding that the death didn't
arise out of the employment. But the district court reversed and found that Siebert had
been killed by a person intent on burglary and larceny at his workplace. The Kansas
Supreme Court held that there wasn't enough evidence to support that conclusion, saying
that "the connection of the death with the employment . . . may not rest on mere surmise
or conjecture." Siebert, 199 Kan. at 307.

Our case is more like Hensley than Siebert. Like Hensley, evidence supported the
conclusion that Connolly was in a place where he was at greater risk of assault than the
general public. The danger in the area outside the restaurant was significant enough that
Connolly had adopted the practice of having waitresses escorted to their cars, the area
wasn't well lit, and there had been vandalism to cars there. Minsky's argues that the
evidence didn't show it was a "high-crime area," and that may be true. We don't really
know what level of reported crime might be needed to attain that label; that's really just a
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matter of definitions. But the evidence here was enough to show that performing
Connolly's job duties put him at a greater risk of assault than the general public.

In Siebert, by contrast, there was no evidence of any kind connecting his killing
with risks associated with performing his job duties. Someone came into his office that
day and shot him. As the Kansas Supreme Court held, though, the only way to tie the
killing to his job would have been through speculation and conjecture.

Whether an injury arises out of the claimant's employment is a factual question for
determination by the Board. Here, the Board determined that Connolly's injuries were
connected to his job duties. Substantial evidence supports that conclusion.

We therefore affirm the Board's decision.