Stepter v. LKQ Corporation

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NOT DESIGNATED FOR PUBLICATION

No. 117,002

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MICHAEL RAY STEPTER,
Appellee,

v.

LKQ CORPORATION
and
INDEMNITY INSURANCE CO. OF NORTH AMERICA,
Appellants.


MEMORANDUM OPINION

Appeal from Workers Compensation Board. Opinion filed October 6, 2017. Affirmed.

Kendra M. Oakes, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellants.

Jan L. Fisher, of McCullough, Wareheim & LaBunker, of Topeka, for appellee.

Before HILL, P.J., ATCHESON and SCHROEDER, JJ.

PER CURIAM: Michael Ray Stepter was involved in a one-vehicle accident while
driving a truck LKQ Corporation rented for him to use on his delivery route in western
Kansas. The Workers Compensation Board (the Board) found the accident arose out of
and in the course of his employment. The Board rejected LKQ's assertion the accident
was caused by Stepter's undiagnosed medical condition of sleep apnea. We find, based on
the record as a whole, Stepter established his right to a workers compensation award and
the factual determinations by the Board are supported by substantial competent evidence.
We affirm.
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FACTS

Stepter worked for LKQ as a truck driver. His job duties consisted of loading car
parts and delivering them to various body and repair shops throughout western Kansas.
Roughly 60 percent of his work involved driving while the remainder was loading and
unloading. On June 19, 2013, Stepter was injured in a single-vehicle accident while
delivering parts for LKQ. Stepter's testimony reflects that the night before the accident,
he went to bed around 10 p.m., woke up at 5:45 a.m., and arrived at work at 7 a.m. He
left the shop to make deliveries on his normal route, ate lunch around 12:30 p.m. in
Salina, and resumed driving immediately thereafter. The accident occurred at
approximately 1:30 p.m. Stepter has no recollection of what caused the accident. He
believes he fell asleep or passed out, although he did not remember feeling sleepy or
fatigued prior to the accident.

Stepter suffered severe injuries in the accident and was unable to return to work
for LKQ. He filed a claim for benefits under the Kansas Workers Compensation Act,
K.S.A. 44-501, et seq. (KWCA). LKQ hired Dr. Michael Farrar, a cardiologist, to review
Stepter's medical records and deposition testimony. In December 2015, Dr. Farrar's initial
opinion indicated he thought Stepter had a high likelihood of undiagnosed sleep apnea.
Stepter was referred to Dr. Brian Ladesich, a sleep apnea expert, for testing. Dr. Ladesich
diagnosed Stepter with obstructive sleep apnea in January 2016; however, he was unable
to say whether Stepter had the condition at the time of the accident. He testified that even
if Stepter had sleep apnea at the time of the accident, he could not say it caused Stepter to
fall asleep while driving. Dr. Ladesich did not offer an opinion as to the cause of Stepter's
accident.

Dr. Farrar performed a physical examination of Stepter in March 2016. Dr. Farrar
concluded Stepter had obstructive sleep apnea and that Stepter almost certainly had
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obstructive sleep apnea prior to his accident and believed it was the only possible cause
for the accident.

An administrative law judge (ALJ) did not accept Dr. Farrar's opinion and found
Stepter was entitled to workers compensation benefits for his injuries. LKQ timely sought
review before the Board. The Board affirmed the ALJ's decision, finding Dr. Farrar's
testimony lacked credibility and was based on conjecture and speculation. LKQ timely
appealed. Additional facts are set forth as necessary herein.

ANALYSIS

Stepter's injuries were not the result of a personal or neutral risk.


An employee who is injured while at work performing his or her job duties is
generally covered by the Workers Compensation Act and is entitled to the benefits it
provides. K.S.A. 2016 Supp. 44-501b specifies the conditions under which an employer
is obligated to pay compensation for an employee's injuries as well as the employee's
burden to establish his or her right to compensation, stating in pertinent part:

"(b) If in any employment to which the workers compensation act applies, an
employee suffers personal injury by accident, repetitive trauma or occupational disease
arising out of and in the course of employment, the employer shall be liable to pay
compensation to the employee in accordance with and subject to the provisions of the
workers compensation act.
"(c) The burden of proof shall be on the claimant to establish the claimant's right
to an award of compensation and to prove the various conditions on which the claimant's
right depends. In determining whether the claimant has satisfied this burden of proof, the
trier of fact shall consider the whole record." (Emphasis added.)

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LKQ argues the Board erred by imposing the burden on LKQ to prove the
accident that caused Stepter's injuries resulted from a personal or neutral risk. LKQ
asserts Stepter has the burden to establish his entitlement to workers compensation
benefits; therefore, he must prove the accident was not a result of personal or neutral risk.
LKQ's argument rests in the interpretation of the KWCA. Interpretation of a statute is a
question of law over which appellate courts have unlimited review. Neighbor v. Westar
Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015).

"'Accident' means an undesigned, sudden and unexpected traumatic event, usually
of an afflictive or unfortunate nature and often, but not necessarily, accompanied by a
manifestation of force." K.S.A. 2016 Supp. 44-508(d). "'Personal injury' and 'injury'
mean any lesion or change in the physical structure of the body, causing damage or harm
thereto. Personal injury or injury may occur only by accident, repetitive trauma or
occupational disease as those terms are defined." K.S.A. 2016 Supp. 44-508(f)(1). "An
injury is compensable only if it arises out of and in the course of employment." K.S.A.
2016 Supp. 44-508(f)(2).

"'The two phrases arising "out of" and "in the course of" employment, as used in
our Workers Compensation Act . . . have separate and distinct meanings; they are
conjunctive, and each condition must exist before compensation is allowable. The phrase
"out of" employment points to the cause or origin of the worker's accident and requires
some causal connection between the accidental injury and the employment. An injury
arises "out of" employment when there is apparent to the rational mind, upon
consideration of all the circumstances, a causal connection between the conditions under
which the work is required to be performed and the resulting injury. Thus, an injury
arises "out of" employment if it arises out of the nature, conditions, obligations, and
incidents of the employment. The phrase "in the course of " employment relates to the
time, place, and circumstances under which the accident occurred and means the injury
happened while the worker was at work in the employer's service. [Citations omitted.]'
(Emphasis added.) Kindel v. Ferco Rental, Inc., 258 Kan. 272, 278, 899 P.2d 1058
(1995)." Rinke v. Bank of America, 282 Kan. 746, 752, 148 P.3d 553 (2006).
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LKQ argues the Board improperly shifted the burden onto LKQ to prove Stepter's
accident was the result of a personal or neutral risk. However, LKQ does not specify
what the personal or neutral risk was. Based on the other arguments raised in its brief, it
is likely LKQ is arguing that Stepter allegedly falling asleep as the result of sleep apnea
was a neutral or personal risk. We are not persuaded by LKQ's argument.

The Board found LKQ's evidence the accident was caused by Stepter's
undiagnosed sleep apnea was based on conjecture and speculation. Even if that is LKQ's
intended argument, it is unclear whether falling asleep itself or the alleged sleep apnea is
the purported neutral or personal risk. The point is either not argued, or at best,
incidentally raised but not fully argued. An issue not briefed by the appellant is deemed
waived or abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259
P.3d 676 (2011). A point raised incidentally in a brief and not argued therein is also
deemed abandoned. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645,
294 P.3d 287 (2013). LKQ's argument is not persuasive.

In reaching its decision, the Board held:

"Although it is claimant's burden to prove his entitlement to workers compensation
benefits, a claimant need not unequivocally or definitively prove his or her position. A
claimant must simply prove his or her right to compensation and the various conditions
on which that right depends, are more probably true than not. Once a claimant satisfies
that burden, the burden then becomes that of a respondent to prove the existence of a
personal or neutral risk."

Here, it is undisputed the accident occurred while Stepter was at work and in the
course of his work delivering car parts to various body shops in western Kansas. The only
issue is what specifically caused the accident, and that fact is unknown. The record
contains speculation he fell asleep, but no one knows for sure what happened. Sometimes
accidents happen for unknown reasons and that does not mean the injured worker is not
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covered by the KWCA. See Graber v. Dillon Companies, 52 Kan. App. 2d 786, 797, 377
P.3d 1183 (2016) (an unexplained fall was compensable due to conditions of employment
in which it occurred), petition for rev. filed July 25, 2016.

The Board's finding that Stepter's accident did not arise out of a personal risk was
supported by substantial evidence in the record.

LKQ argues the Board's finding that Stepter's accident did not arise from a
personal risk was based on a determination of fact not supported by substantial evidence
when viewing the record as a whole. Courts must determine whether the evidence
supporting the agency's factual findings is substantial when considered in light of all the
evidence. Sierra Club v. Moser, 298 Kan. 22, 62, 310 P.3d 360 (2013). "Substantial
evidence" refers to "'evidence possessing something of substance and relevant
consequence to induce the conclusion that the award was proper, furnishing a basis [of
fact] from which the issue raised could be easily resolved.' [Citation omitted.]" Rogers v.
ALT-A&M JV, 52 Kan. App. 2d 213, 216, 364 P.3d 1206 (2015).

When determining fact questions, an appellate court's responsibility is to review
the record as a whole to determine whether the Board's factual determinations are
supported by substantial evidence. "This analysis requires the court to (1) review
evidence both supporting and contradicting the agency's findings; (2) examine the
presiding officer's credibility determination, if any; and (3) review the agency's
explanation as to why the evidence supports its findings. The court does not reweigh the
evidence or engage in de novo review. [Citations omitted.]" Williams v. Petromark
Drilling, LLC, 299 Kan. 792, 795, 326 P.3d 1057 (2014).

LKQ argues the Board unreasonably disregarded Dr. Farrar's opinion that Stepter's
undiagnosed sleep apnea caused the accident despite no evidence Stepter suffered from
fatigue on the day of the accident. The Board specifically rejected Dr. Farrar's opinion
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regarding causation. The Board acknowledged it could not arbitrarily disregard the
testimony of any witness; however, it was not obligated to accept and give effect to any
evidence, even if uncontradicted, if it believed the evidence was unreliable. Indeed, "the
trier of fact does not have to 'accept and give effect to any evidence which, in its honest
opinion, is unreliable, even if such evidence be uncontradicted.' Beard v. Montgomery
Ward & Co., 215 Kan. 343, 348, 524 P.2d 1159 (1974) (quoting Collins v. Merrick, 202
Kan. 276, Syl. ¶ 3, 448 P.2d 1 [1968])." Estate of Emery v. State, No. 107,921, 2013 WL
781137, at *4 (Kan. App. 2013) (unpublished opinion).

The Board found Dr. Ladesich's testimony was more credible than Dr. Farrar's and
cast doubt on the reasonableness of Dr. Farrar's opinions. The Board found Dr. Ladesich's
testimony that he did not know whether Stepter had sleep apnea at the time of the
accident or whether the accident was caused by sleep apnea "support[ed] a reasonable
inference that Dr. Farrar's conclusions were conjectural and based on speculation." It
pointed to six reasons for its finding:

 The testing performed by Dr. Farrar and Dr. Ladesich did not occur until
more than two years after the accident;
 After review of Dr. Farrar's deposition and the exhibits contained therein,
the Board found his assertions neither credible nor reasonable;
 Stepter had not been diagnosed with sleep apnea prior to the accident;
 Stepter's testimony that he had not experienced fatigue, dizziness, loss of
consciousness, or episodes of falling asleep while driving prior to or after
the accident was uncontroverted;
 Stepter testified he did not have chronic fatigue before or after the accident;
and
 Stepter had no prior motor vehicle accidents due to falling asleep while
driving.
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The Board's findings are well supported by the record. Dr. Farrar is not a sleep
apnea expert, Dr. Ladesich is. Dr. Ladesich testified the test used by Dr. Farrar in
diagnosing Stepter with sleep apnea is a crude test and he does not use it in his practice.
Dr. Ladesich also testified he does not know whether Stepter had sleep apnea at the time
of the accident and has no way of knowing whether his accident occurred because he fell
asleep due to sleep apnea or for another reason. Dr. Ladesich indicated there are several
reasons why someone could fall asleep while driving other than sleep apnea. He further
testified and clarified even if Stepter had sleep apnea, it may not have caused him to
experience any symptoms of fatigue at the time of the accident.

Dr. Ladesich's testimony creates a genuine dispute as to the reliability of Dr.
Farrar's opinions. In reviewing the Board's findings, this court does not reweigh the
evidence or engage in de novo review; rather, this court looks at the Board's credibility
determinations and its explanation as to why the evidence supports its findings. See
Williams, 299 Kan. at 795. Here, the Board's reasons for rejecting Dr. Farrar's opinions
are well explained in its order and are supported by substantial evidence when viewing
the record as a whole. The Board did not arbitrarily, capriciously, or unreasonably
disregard Dr. Farrar's testimony. It found his opinion was based on conjecture and
speculation and did not err in its factual determinations. The Board's conclusion Dr.
Ladesich's opinion was more credible than Dr. Farrar's opinion is supported by the record
as a whole.

The concurrence rule does not apply.

LKQ argues the Board erroneously interpreted or applied the KWCA by implying
the "concurrence rule" had not been abrogated by the 2011 amendments to the KWCA.
Curiously, LKQ does not point to any specific portion of the Board's order in which this
alleged implication was made. As the appellant, LKQ has an affirmative duty to show
error by the Board. LKQ has provided no citation to the record showing where the Board
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made this allegedly erroneous ruling, nor does it even fully explain or argue the nature of
the error. A point raised incidentally in a brief and not argued therein is deemed
abandoned. An appellate court presumes a factual statement made without a reference to
volume and page number has no support in the record. See Friedman, 296 Kan. at 644-
45.

LKQ is correct that the concurrence rule was most likely abrogated by the 2011
amendments to the KWCA, specifically K.S.A. 2016 Supp. 44-508(f)(3)(A)(i)-(iv). As
Graber explained, Kansas courts previously applied the concurrence rule where a
claimant's injuries resulted from the concurrence of a personal risk and the conditions of
the claimant's employment. In other words, a personal risk was not a bar to
compensability as long as the accident or injury resulted from a combination of the
personal risk and the conditions of employment. However, as Graber noted, the
concurrence rule was probably abolished by the 2011 amendments to the KWCA. See
Graber, 52 Kan. App. 2d at 792, 798 (discussing the concurrence rule as explained in
Bennett v. Wichita Fence Co., 16 Kan. App. 2d 458, 460, 824 P.2d 1001 [1992]).

LKQ errs in asserting the Board somehow implied the concurrence rule had not
been abrogated or applied it in its decision. The Board found Stepter's injuries occurred
as a result of an accident in the course of his employment, "and his accident or injury did
not arise out of a personal risk, a neutral risk, or directly or indirectly from idiopathic
causes." In other words, the Board rejected LKQ's contention Stepter had sleep apnea at
the time of the accident. Further, the Board found even if Stepter had sleep apnea at the
time of the accident, the record did not establish he fell asleep as a consequence thereof.
The record does not support LKQ's claim. Further, LKQ's argument centers on the
premise Stepter had sleep apnea and the accident was a consequence thereof. As
previously discussed, the Board's factual findings were supported by substantial
evidence.

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Affirmed.