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Smith v. Winfield Livestock Auction2/18/2005
Affirmed.
Bonnie Smith, widow of Phillip M. Smith, appeals the finding of the Workers Compensation Board (Board) that Phillip's fatal injuries did not arise out of and in the course of his employment. We affirm.
On October 3, 2001, Phillip hauled three cows to the Winfield Livestock Auction, Inc. (Auction) for Anna Poovey. After the auction concluded, Phillip was loading Poovey's cow into the trailer and was trampled by the cow. Phillip died 4 days later.
Phillip, a farmer, worked for the Auction 1 day a week moving cattle off the scales during the auctions. Phillip was paid hourly for this work. Phillip leased a trailer from John Brazle, owner and president of the Auction, to haul cattle to and from the Auction. Phillip charged the cattle owner a fixed rate plus mileage for cattle he transported, and Brazle would receive 20 percent of that amount for the lease of the trailer. Phillip's fees were paid out of the sale price of the cattle.
Phillip clocked in at the Auction on October 3 at 10:53 a.m. for the 11 a.m. auction and clocked out that day at 3:21 p.m. after the sale was over. After clocking out, Phillip went to the café and at approximately 5 p.m., he drove his truck and trailer to the loading area to load Poovey's cow that had not sold.
The two Auction employees responsible for loading livestock, J.D. Petersen and Sarah Conway, were sent to move the cow from a holding pen in the alleyway into the trailer. Petersen went to get the cow while Conway closed the small gate on the north side of the trailer. At the same time, Phillip stood on the south side of the trailer, but instead of closing the gate, he simply stood in the space in front of the gate to direct the cow into the trailer.
Petersen told Phillip to move his trailer to a loading dock to avoid getting run over by the cow. Instead of walking directly into the trailer, the cow hit Phillip several times, knocking him down and trampling him to get out of the pen.
Phillip was taken to a local hospital before being flown to Wesley Medical Center in Wichita. He suffered multiple fractured ribs. On October 7, 2001, he developed a pulmonary embolism and died.
Bonnie made a claim against the Auction for death benefits under the Workers Compensation Act (Act), K.S.A. 44-501 et seq. The administrative law judge (ALJ) denied the claim. Although the ALJ found a causal connection between Phillip's injury and subsequent death, she noted that the accident did not arise out of and in the course of employment. Bonnie appealed the ALJ's decision, which was affirmed by the Board. Bonnie timely appeals.
Bonnie claims that the Board erred by finding that Phillip's injuries did not arise out of his employment with the Auction.
Resolution of this matter requires a determination of whether the Board correctly interpreted K.S.A. 44-501(a). The statute provides: "If in any employment to which the workers compensation act applies, personal injury by accident arising out of and in the course of employment is caused to an employee, the employer shall be liable to pay compensation to the employee in accordance with the provisions of the workers compensation act."
In proceedings under the Workers Compensation Act, 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. K.S.A. 44-501(a); Brobst v. Brighton Place North, 24 Kan. App. 2d 766, 778, 955 P.2d 1315 (1997).
In the instant case, both the ALJ and the Board made a negative finding that Phillip's injuries were not covered by workers compens
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