A Kansas roofer, who sustained catastrophic injuries when he was struck by a drunk driver as the roofer walked from a bar to his hotel at 2:20 a.m., could not recover workers’ compensation benefits for his injuries. The roofer’s injuries did not arise out of and in the course of the employment, held the Supreme Court of Kansas [Atkins v. Webcon, 2018 Kan. LEXIS 204 (June 8, 2018)].
The claimant was employed by a commercial roofing company and had been assigned to a job in Enid, Oklahoma, some distance from the work crew’s home. While in Enid, the crew stayed at the Baymount Inn. The employer paid for the rooms and meals and gave crew members an additional $25 payment for each night they stayed in Enid. The crew left the hotel at 6 or 7 a.m. and returned at 6 or 7 p.m. each work day. Upon returning to the hotel, the workers were on their own.
A Ramada Inn located across the street from the hotel had a bar and it was common for crew members to walk to the Ramada after work for drinks. One evening, the claimant and another worker walked to the Ramada after eating dinner. The other laborer left about 11:30 p.m., but the claimant stayed on. Claimant was struck by a car driven by a drunk driver as Claimant crossed the street to return to the hotel.
The ALJ awarded benefits, but the Board reversed, finding that there was not a sufficient connection between the work and the injuries. The Court of Appeals affirmed, in an unpublished opinion, and the Supreme Court granted review.
Going and Coming Rule Inapposite
The Court noted that Claimant had invoked the going and coming rule in an attempt to get to what was commonly referred to as the “intrinsic travel exception.” The Court added that while it had often referred to the intrinsic travel “exception,” it was no more an exception than the going and coming “rule” was a rule. Claimant was attempting to argue that since travel to Enid was connected to the job, that his injuries in Enid came within the “exception.”
The Court agreed with Claimant that the going and coming rule was inapposite, but not because of the intrinsic travel exception. Rather, the facts simply demonstrated that Claimant was not going to or coming from work when he was injured.
Employment Could not be Stretched to Include the Injury
Reviewing the record as a whole, the Court concluded that substantial competent evidence supported the Board’s ultimate finding that Claimant’s injuries did not arise out of and in the course of his employment. His injuries did not occur while he was fulfilling work duties or doing something incidental to those duties. Staying at the Baymont Inn while the roofing crew was in Enid may have been incidental to his work duties. If Claimant’s injuries had arisen from that fact — in a hotel fire for example — the Court would have a different case and possibly a different result. Claimant’s presence at the hotel was not the operative fact in the case. Claimant was injured while walking between a bar and the hotel in the middle of the night. That activity was too far removed from any of Claimant’s work duties to properly be described as incidental to those duties.