*1 (213 764) P.3d 101,445 No.
Dаnny Douglas, Systems Appellee, v. Ad Astra Information , L.L.C., Company, Appellants. and Hartford Insurance *2 14, filed 2009.
Opinion, August Vetter, Piland, Park, M. of Law Offices of Steve of Overland for- Tracy appel- lants. Smith, Smith, Park, Daniel L. of Ankerholz Overland for appellee. Malone, Standridge, Before Green and P.J., JJ. Malone, L.L.C., Ad Information and Hart- Astra Systems, J.: Astra)
ford Insurance Ad the deci- (collectively Company appeal (Board) sion of the Board Workers Compensation Danny of and in the course of his arose out Douglas’ lung injury employ- ment with Ad Astra. who as a worked support Douglas, computer Astra, Ad while a at an off injured analyst racing go-cart hosted Ad Astra work event hours. Ad during regular premises claims that is not entitled to workers Astra compensation benefits because his were sustained recreational injuries during social event as or contemplated by 2006, Astra, In Ad a software employed by company Park, in Overland Kansas. His was to answer from job questions customers and solve Ad Astra’s software problems concerning between the hours of 8 a.m. and 5 products p.m., Monday through 3, 2006, On November an received email Friday. Friday, at work event that was scheduled that after- regarding company Olathe, noon at Sadler’sin Kansas. Sadler’s ais recreational facility where come to video open public patrons play games, play eat, and race Ad Astra scheduled the event pool, go-carts. primarily *3 thank to for their extra work at a recent conference for employees clients. also considered the event to be a “team company Douglas builder.” were a choice of either Employees given going event or at work that afternoon. felt remaining Douglas pressured to attend the event to demonstrate that he was of Ad Astra’s part team. arrived at Sadler’s at about 12:30 and he was
Douglas p.m., Shaver, Ad Astra’scoowner. She directed greeted by Doug- Jackie las to a room where food had been ex- private meeting prepared for Ad Astra’s Ad Astra for all the em- clusively employees. paid food and the rental fees at Sadler’s. While the food was ployees’ served, Shaver divided the into teams for being employees Jackie events that were for the afternoon. At the competitive planned Shaver, of the Tom coowner, Ad Astra’s other beginning meeting, thanked the for their extra work at the conference. He employees also discussed the release of a new software and product, Douglas considered this a talk. pep
Ad Astra reserved Sadler’s race track for its go-cart exclusively and testified that were employees, Douglas employees encouraged race would race a not go-carts. Douglas normally go-cart, but he to do so he because wanted to be of his team. agreed part that testified the teams were Douglas being encouraged go fast as could because there would be for those teams they prizеs that the “was time. testified with the fastest go-cart racing Douglas sales to kind of morale and boost meant to boost energize company.” swerved to avoid a his
While Douglas stopped racing go-cart, onto hit tire wall. He was from a ejected go-cart go-cart he was did not the race because his side. Douglas complete right However, the event was over he at Sadler’s until stayed pain. was free to leave before 5 he did not believe he because p.m. for that afternoon. received his normal pay Douglas worsen, so he medical treat- continued to sought Douglas’ pain taken, room. were ment at St. Luke’s emergency X-rays Doug- weeks, the next 2 some medication. Over las was prescribed рain worsened, so he returned to St. condition Douglas’ progressively which room. taken revealed Luke’s were X-rays again emergency with fluid. Douglas’ family phy- Douglas’ right lung filling Dr. Kevin L. who sician referred him to thoracic Mayer, surgeon, 30, 2006, to remove the fluid on November performed surgery had suffered a his It was also determined from lung. for a few weeks his rib fracture. was off work following and received his surgery regular pay. claim, filed a workers- and the case compensation pro- before the administrative law
ceeded to regular hearing judge In addition Shaver testified testimony, (ALJ). Jackie a “thank to Ad Astra’s that the event at Sadler’s was you” their extra work at the conference. She further testified that at the event was not but she wanted em- attendаnce mandatory However, to attend the event. those who did ployees *4 were not and at the not stayed participate reprimanded simply and that the event office worked. Shaver agreed might encourage renew their efforts on behalf of Ad Astra to providing employees for the service or sales. Ad Astra deducted the customer expenses event on its taxes as business necessaiy expense. that he a thank
Tom Shaver testified you by gave deposition all in attendance at the event. He further testified to those speech it the event was not and was that from his mandatory perspective intended to create to be fun. Shaver the event was agreed supposed Shaver fur- towards Ad Astra. good among employees feelings ther Ad Astra’s were on the race track agreed only during racing. White, Ad Astra’s accounts testified
Stacy regional manager, by that she received an invitation email to attend the deposition by event. She indicated that it was to be a fun event for all employees due to their hard work at the conference. White that team agreed event, have also been the idea for the but this con- building might was not stated. cept expressly Hoffman, Ad assistant, Astra’s administrative testified
Joy by that the event was to be a deposition planned by management reward for all the hard work that had been at the confer- required ence. Hoffman Sadler’s, did not attend the event at she Although there was to do so. Hoffman testified that she was agreed pressure concerned that she be as someone who was not might perceived of the for not the event. She also stated it was part group attending her that it was a team event. perception building According Hoffman, one or two other in the entire only company did not attend the event. evidence, After found that considering Douglas’ ALJ arose out of and in the course of his with Ad employment
Astra, rather than a recreational or social event as contem- during K.S.A.2008 found plated by Accordingly, ALJ claim was and awarded benefits compensable 15% work disability.
Ad Astra review the Board. aAfter review requested thorough of the evidence the Board made extensive presented ALJ, summarize, factual To the Board found that the event at findings. Sadler’s was a team exercise to boost morale building employees’ Ad Astra’s sales. The Board found that those em- energize who attended were their and the em- ployees paid regular salaiy, who did not attend were at remain work. The ployees required Board found that Ad Astra for all the food and rental fees for paid track, exclusive use of the race which Ad go-cart payments Astra deducted as business for tax The Board expenses purposes. found that Ad Astra the teams to drive assigned encouraged fast because there would be for those teams with the fastest prizes times. Ad Astra intended the event to be a fun Although way *5 work, that the Board found hard for their its thank emplоyees to attend. felt other coworker and at least one pressured 44-508(f) does not de- that K.S.A. 2008 The Board noted or social event.” “recreational fine the Accordingly, phrase in 2 s Workers’ Com- Larson the factors set forth Board applied (Larson’s), (2009) to determine whether Law 22.01 § pensation the course of his sustained an within employment injury First, event. the Board or social a recreational rather than during in the event that Ad Astra found participation impliedly required at work as remain only option employees by insisting em- Second, found that the Board the event. rewarding attending intention for the Ad Astra’s sole work was not for past ployees a new about event; also a brief the coowners product speech gave Third, teams, a team which and activity. building implied assigned on Ad As- did not occur the event the Board found although in attendance. while were tra’s paid being premises, The Board concluded: was, minimum, to attend the or some an “There at a requirement implied event, that team which indicates building to a team and [Douglas] assigned Moreover, to drive fast he was of the event. encouraged
was component reserved for [AdAstra’s] the event at a location He was while race. attending paid that the interaction and that work often entails social Understanding employees. em- construed to Act was intended to be liberally bring Workers Compensation the Board finds accident within its [Douglas’] provisions, ployers event as a recreational or social contemplated by did not occur during K.S.A..2007 added.) 44-508(f).” (Emphasis modified the the Board Pursuant stipulation, parties’ ALJ’s work disa- than a rather award to reflect functional impairment Ad Astra in all award other and affirmed respects. bility ALJ’s timely appeals. erred in its Ad Astra claims the Board
On interpretation appeal, 44-508(f) by finding application of his em- within the course and scope injury go-cart First, erred that the Board Ad Astra by applying argues ployment. instead of in Larson’s the factors set forth statutory following whether to determine of K.S.A. language the course of his an within sustained employment. *6 Second, Ad Astra that the Board’sfactual argues finding Doug- las was under a to attend the event at Sadler’sis not duty supported substantial evidence.
Pursuant to K.S.A. 2008 the Workers Com- Supp. 44-501(g), (the Act) Act shall be construed for the pensation liberally purpose of within the of the bringing employers provisions 44-501(a) Act. K.S.A. 2008 that a worker Supp. generally provides can recover under the Act as follows: in“If to which the workers act any employment compensation applies, personal accident out and in the course is caused to an injury by arising employment of of the shall be hable to in employee, employer pay compensation employee accordance with the of the workers act. In provisions compensation proceedings act, under the workers the burden of shall be on the claimant compensation proof to еstablish the claimant’s to an award of and to the right compensation prove various conditions which on the claimant’s In whether right depends. determining the claimant has satisfied this burden of the trier of fact shall consider the proof, added.) whole record.” (Emphasis 44-508(f), which the basis for the provides in this states relevant dispute appeal, part: “The words out of and in the course of ‘arising used the employment’ workers act shall not be construed to include compensation injuries while in recreational or social engaged events under circumstances where the was under no to attend and employee where the did not duty result from injury the of tasks related to the performance normal duties or as employee’s jоb spe- instructed to be cifically the performed by employer.” Under K.S.A. 44-508(f), an is barred from employee under the Act for while recovery injuries employee engaged in recreational or social events when two circumstances are both First, met. the subsection where the only applies under no to attend Second, the recreational or social event. duty the subsection where the did not result from only applies of tasks related to the normal du- performance employee’s job ties or as instructed to be specifically performed by employer. Here, there is no that the second circumstance is met question because is not normal duties. go-cart racing part Douglas’ job Thus, in order to 44-508(f) dеtermine whether K.S.A. 2008 Supp. to bar the Board focused on the first applied Douglas’ recovery, to attend the was under no of whether circumstance at Sadler s. event that the Board erred Ad Astra by applying
Initially,
argues
lan-
forth in Larson’s instead of
factors set
following
statutory
determine whether
K.S.A.2008
Doug-
guage
Ad
within the course of his
las sustained an injuiy
employment.
factors; the Boatd
on the Larson’s
Astra contends
by relying
of K.S.A.
statutory language
ignored
and Civil Enforcement of
The Act for
Review
Agency
Judicial
Actions,
Act
now
the Kansas
Review
renamed
(KJRA),
Judicial
which
77-601 et
relief
K.S.A.
seq.,
may
provides
grounds upon
awards entered on
of workers
be granted
appeals
compensation
*7
44-556(a);
2009,
1,1993.
L.
after October
See K.S.A.2008
or
109,
that Ad
raises an issue con-
ch.
sec. 23. To the extent
Astra
44-508(f),
the Board’s
of K.S.A.2008 Supp.
cerning
interpretation
review,
in
that the
the
the
of
scope
providing
part
governs
KJRA
relief
if it determines “the
has erro-
court shall grant
only
agency
2009,
109, sec.
or
the law.” L.
ch.
neously interpreted
applied
77-621).
28(c)(4)
K.S.A.
(amending
The
under the Act is a
of
interpretation
statutory provisions
construction,
of law. Under tire doctrine of
the
question
operative
Board’s
of the law is entitled to
deference.
judicial
interpretation
statute,
a
the Board’s
of a
If there is rational basis for
interpretation
However,
it
the Board’s
should be
review.
upheld upon judicial
and,
law
determination on
of
is not conclusive
questions
though
v. Armour
is not
on the court. Casco
persuasive,
binding
Swift-
521,
Eckrich,
508,
(2007).
283 Kаn.
We with Ad Astra’s contention that the Board ignored disagree Rather, 44-508(f). 2008 in the of K.S.A. statutory language statute, noted that the Act the Board interpreting applying event” within the does not define “recreational or social purview entire of K.S.A. 2008 Larson’s devotes an chapter are within whether recreational or activities social determining
449 Thus, Larson’s, the the course of Board consulted employment. in which relevant provides part: social “Recreational or activities are within the course of when employment (1) the occur on a lunch or recreation as a They premises during period rеgular
incident of the or employment; ' “(2) The or or mak- by employer, expressly impliedly requiring participation, the services of an within ing activity part employee, brings activity orbit of or the employment; “(3) The derives direct substantial benefit from the employer activity beyond value of health and morale that is intangible improvement com- mon all kinds of recreation and life.” 2 social Larson’s Workers’ Compensation 22.01, Law 22-2. p. § noted, As the Board does Act not define what constitutes recreational or social events contemplated by 44-508(f). Our courts have often looked to Larson’s when appellate Sumner v. See, various of the Act. e.g., interpreting provisions Mix, Inc., Meier's 283, 288-89, 144 (2006) 282 Kan. Ready P.3d 668 “ Larson’s treatise to define ‘сourse of em (quoting leading ” “ before and com- ployment’ interpreting applying ‘going Coleman v. Armour 44-508[f]); rule” found in also ing’ Swift-Eck rich, 381, 382-84, 281 (2006) Kan. P.3d 130 111 Larson’s (citing case law to a overruling prior denying compensation nonparti McIntosh v. victim of 34 Sedgwick County, cipating horseplay); 684, 689-90, 740, Kan. 636, 2d P.3d Kan. App. aff'd (2006) P.3d 869 Larson’s in (citing determining legislative *8 tent and behind the offset in K.S.A. policy 44-50l[h] provision benefits). duplicate wage-loss
In whether were un- determining Douglas’ injuries compensable Act, der the the Board focused on whether he was under no duty to attend at the event This is Sadler’s. the appropriate statutory test in case. We conclude the Board did being disputed not err the factors set forth in in Larson’s by consulting interpreting and the of K.S.A. 2008 44- applying exclusionary provisiоn 508(f).
Ad Astra’s
contention on
the
is that
Board erred
primary
appeal
in
that
was under a
to attend the event
concluding
at Sadler’s. Ad Astra
Board
that the
“evaluated the evidence
argues
of evi-
the substantial
but
overwhelming body
disregarded
existed for
or
in fact no
that
[Douglas]
dence
duty, express
implied,
at
event
to attend the
of Ad Astra
other
thank-you
or
that the event
evidence
Ad Astra claims
Sadlers.”
the only
based
on his
and was
came from
only
feelings
mandatory
do not
insists that
Ad Astra
and beliefs.
change
Douglas’ “feelings
not
the event was
of the situation—that
mandatory.”
reality
and in the course of
arises out of
Whether an accidental injury
Insurance,
v. Brooke
fact.
a
of
is
Titterington
question
employment
(2004).
888, 896,
To be entitled
“(c) if it determines . . .: relief The court shall only grant fact, “(7) of made or by is on a determination implied action based agency evidence standard of by proof is not appropriate agency, supported whole, a which includes of tíre record as when viewed is substantial light review, evidence additional by any record for supplemented judicial agency 2009, 109, 28(c)(7) act.” L. ch. sec. (amending under dris received court by 77-621). K.S.A. 2009, 1, a new amended effective K.S.A. 77-621 was July a court what is meant when (d) added to subsection clarify 2009, L. “in the record as whole.” the evidence of reviews light (d). 109, 28(c)(7), substantive ch. sec. changes legislative Although ap- changes generally only prospectively, procedural usually apply affected. vested are unless substantive or cases rights ply pending 218, 222-23, Chartrand, 73 P.3d 276 Kan. v. Owen Lumber Co. 77-621(d) (2003). now provides: section, die a whole’ means that ‘in of the record as “For of this light purposes before the court to particular the evidence the record support of adequacy evidence in the record of all the relevant fact shall be judged light finding evi- as all die relevant from such as well cited that detracts finding any party record, amendments K.S.A. 77-620 and dence in the pursuant compiled thereto, determina- any such finding, including сited supports by any party demeanor die officer who observed personally tions veracity by presiding
451 of of the witness the relevant evidence in and agency’s explanation why record material of fact. In the evidence in its supports findings reviewing light whole, the court shall not the evidence or record as a de reweigh engage 77-621). 2009, 109, 28(d) ch. K.S.A. novo review.” L. sec. (amending In its Board discussed cited and conducting analysis, Hizey MCI, 609, 583, v. 2d 39 Kan. 181 P.3d rev. denied 286 Kan. App. (2008). MCI, worked for as sales and Hizey representative her involved customers employment generally contacting potential to sell local to MCI and by phone attempt long-distance telephone However, hired, when services. she was was informed that Hizey various, she еxtra could earn incentive money by participating One incentive created for em- programs. program opportunities cash, to earn or vacation time com- ployees prizes, by voluntarily contests, such as karoke con- peting games poker, pie-throwing tests, or contests. incentive dance These activities were organized, announced, and MCI and were de- supervised by management to and motivate as well signed energize employees provide incentives with the to remain by company providing additional to make The continued opportunities money. activities, be while in the and activities paid they participated occurred hours and took always during regular working usually on MCTs was not man- place premises. Although participation dated, MCTs management encouraged employees participate. contest dance MCTs
Hizey injured during arranged by MCI claimed that s was not management. Hizey injury compen- sable under K.S.A. it because occurred as the result of a social or recreational The and voluntary activity. ALJ the Board with MCI and concluded that s disagreed Hizey injury arose out of and in the her course of employment. Interestingly, the Board consulted 22.01 Larson’s to conclude the nature of the § dance recreational, contest was not social or but predominately rather was within the See 39 Kan. scope Hizey’s employment. 2d at 611-12. App.
On this court affirmed Board’s decision and found appeal, that when an is on anin on participates activity which is company premises organized, encouraged, supervised and which benefits the as well as the employer employer *10 “rec- fall within the for does not the exception activity employee, 44-508(f). 2004 under K.S.A. events” reational and social Supp. case, court concluded that the of the the the Under circumstances was in not a “recrea- resulted s contest which dance Hizey injuiy the test of K.S.A. 2004 event” and so tional or social two-pronged 44-508(f) 39 Kan. 2d at did not 616. apply. App. are similarities between there case Although Douglas’ Hizey, Here, there are also differences. the event example, important Sadler’s, at rather than on Ad аnd there occurred Astra’spremises, its Ad made event a of was no evidence that the Astra regular part driven the result in was More by Hizey importantly, operations. in the contest was dance the fact that of part Hizey’s participation circumstances, the the court con- at MCI. Under her compensation did not as a “recreational or that the dance contest cluded qualify the 2004 event” within K.S.A. social meaning Here, 610-11, at 614-16. the event at Sadler’s See 39 Kan. 2d App. event, as social but the issue is whether a recreational or qualifies attend event. of the under no to the Because was duty Douglas and the facts in the differences between the facts Hizey present case, the we less rebanee than Boаrd on Hizey determining place out of in the his em- whether arose course of injuiy Douglas’ with Ad Astra. ployment stated,
As the of this is whether case focus previously primaiy the at Ad Astra was under no to attend event Sadler’s. Douglas duty K.S.A. this a fact determined Board. was issue to be by agrees 44-508(f) under will be to bar compensation applied if was “no attend the recreational Act under to duty” Douglas result did not which caused his and the or social event injuiy normal related to the from the tasks employee’s performance the em- instructed be duties or as performed job specifically if to attend under some duty Conversely, Douglas ployer. K.S.A, Sadler’s, at then does not event apply to bar under Act. compensation event Ad Astra attendаnce at the Sadler’s argues fact, In from evidence. was not this is mandatory. undisputed does not But because attendance at the event was mandatory just Here, attend. mean no not was under Douglas concluded that was under “some to attend Board duty” The we must answer is the event at Sadler s. whether this question is substantial evidence when viewed in finding supported by light record as a whole. of the fact which
An the Board relied was that the upon important event at Sadler’swas scheduled Ad Astra’s business during regular hours, scheduled or on a week- opposed being evening end when would have been on his own time. a choice to either attend the event or to remain at work.
given choice, it is Given this not two or three em- surprising only *11 in the entire chose not to attend the event. company ployees Doug- las testified that he did not believe he was free to leave the event fact, In even after before was on the p.m. Douglas injured go- track, cart he at Sadler’s until the event was stayed completed. builder,” testified that the event at Sadler’s a “team was Douglas and he believed he should attend the event to demonstrate that he of Ad team. Astra’s This was corroborated part testimony by other witnesses. White that team have Stacy agreed building might event, been the idea for the even this was not though concept stated. Hoffman also testified it was her expressly Joy perception that it was a team event. was also building Douglas’ perception corroborated the fact that Ad Astra’s were divided by employees into teams once arrived at Sadler’s. they testified that he felt to attend the event at
Douglas pressured Sadler’s. This was corroborated Hoffman’s by testimony. Although Sadler’s, Hoffman at work and did not she that stayed go agreed she felt to attend the event. Hoffman testified that she pressure was concerned that she be as someone who was might perceived not of the for not the event. part group attending nature,
The event at Sadler’s was recreational and in social but it contained some business as well. Tom Shaver dis- components cussed the release of a new software consid- product, ered this a talk. Shaver the event was intended to creatе pep agreed towards Ad Astra. good feelings among employees Jackie Shaver testified that attendance was not she although mandatory, wanted to attend the event. She that the event employees agreed to renew their efforts on behalf of Ad might encourage employees or sales. Ad Astra deducted customer service Astra providing as a business ex- the event on its taxes necessary expenses pense. in the record that detracts from the
There is also evidence was under some to attend Board’s finding Shaver both testified that the at Sadler’s. Tom and event Jackie to thank for their extra event was intended employees primarily and that attendance at the event was not work at the conference White corroborated that it was to be a fun event mandatory. Stacy due to their hard work at the conference. for all Joy that the event was intended to reward Hoffman testified primarily to attend the event. and that she chose not whole, the record as a In the evidence reviewing light in de novo review. court shall not the evidence or engage reweigh Board, we conclude the Given the evidence presented factual under “some Board’s duty” finding attend the event at Sadler’s is substantial evidence by supported of the as a whole. Based this when viewed record light upon the Board did not err in finding, concluding Astra, and in the course of his with Ad arose out of employment rather than a recreationаl or social event contemplated during K.S.A. Affirmed. *12 I dissent from the majority’s J., dissenting: respectfully
Green, decision the Board’s arose affirming holding out of and in the course of his employment.
First, I with the that the Board disagree majority’sholding prop- 2 factors forth in Larson’s Workers’ Com- consulted the set erly (2009), in the Law 22.01 and pensation interpreting applying § 44-508(f). 2008 Consider of K.S.A. Supp. exclusionary provision fact, the conceded this oral attorney during argument, appellee’s social event exclusion under that the recreational or statutoiy Moreover, 44-508(1) the K.S.A. 2008 was ap- unambiguous. Supp. did not need to further conceded drat Board pellee’s attorney Yet, the Board resort to the Larson’s factors to statute. interpret
455
into K.S.A. 2008
when it de-
injected ambiguity
that the statute did not define
“recreational
termined
phrase
a
When
whether
statute is
or social event.”
deciding
ambiguous,
construction
that where words
basic
statutory
provides
principle
defined,
must be
their
in a statute are not
they
given
ordinary
Williams,
507,
3,
195 Kan.
407 P.2d
See Roda v.
Syl. ¶
meaning.
(1965) (words in
within a statute are
471
common use contained
their natural and
see also Perrin v.
to be
ordinary
given
meaning);
States,
199,
37, 42,
444 U.S.
62 L. Ed. 2d
In the “recreational or social which the phrase legislature 44-508(f), chose to use in K.S.A. 2008 the word “recrea- is used as an and it refers to recreation. tional” Webster’s adjective, (1986) Third New International defines the noun Dictionary “recreation” as a means of diversion or entertainment. The adjec- tive “social” is defined as to convivial activities. Webster’s relating (1988). II New Riverside Merriam- University Dictionary (2004) Webster’s defines the Collegiate Dictionary adjective to, with, “convivial” as or fond of drink- “relating occupied feasting, and ing, good company.”
Based on the and normal of the “rec- ordinary meaning phrase event,” reational or social there was no need Board to resort 44-508(f). Larson’s factors interpreting The within the context of K.S.A. 2008 phrase unambiguous
Moreover, even if the “recreational or social event” were phrase the Board’s first was to to determine the ambiguous, duty attempt intent and to consider the words legislative underlying phrase Instead, оf the in their phrase plain ordinary meaning. Board determined that the phrase ambiguous immediately resorted to the Larson’s factors to a different standard to develop In the the Board formulated an unstated apply. process, statutory when it focused on and determined that purpose Douglas’ feelings to attend the Sadler’s event: Douglas subjectively perceived “Claimant was a choice of either to the event or re- given going *13 at work but he said that he to attend the maining pressured felt added.) event.” The Board’s (Emphasis finding important, its will be demonstrated later. importance the clear text that show statutory
Despite requiring Douglas event, he had a to attend the recreational or social the Board duty decided that a standard sufficed. The Board perceptible developed this standard from one of the Larson’s factors: “One perceptible is the factor whether or employer expressly impliedly requires par- in the . . . .” 2See Larson’s Workers’ ticipation activity Compen- 22.01(2), observation, sation Law 22-2. After this the p. making § Board found as follows: “Claimant was re- participation felt and Ms. Hoffman also she felt some quired agreed pressure added.) to attend.” the record shows that (Emphasis Interestingly, Hoffman have felt some to attend the Sad- although may pressure event, ler’s she chose not to attend the event.
This or standard that the Board perceptible subjective adopted 44-508(f). Moreover, is not found in K.S.A. 2008 this sub- standard is no stаndard at all in the jective reality application. if For have a to attend example, employees perceive they duty event, mistaken, a recreational or social even will sat- though they to attend under the Board and the ma- isfy duty requirement result, As a standard test would jority’s subjective reasoning. be no test at all. The Board has subverted the plain language 44-508(f) K.S.A. 2008 one or more of Larson’s by using factors to or standard at the adopt perceptible subjective expense Moreover, of the statute. the Board and the majority’sinterpreta- tion of K.S.A. 2008 is erroneous as a matter of law. to Attend Duty earlier,
As stated the Act a recreational or social event recognizes exclusion. It excludes from to an coverage any injury employee (1) while in a recreational or social event when the em- engaged was under no to attend the recreational or social ployee (2) event and when the did not result from the injuiy performance of tasks related to the normal duties or from employee’s job of tasks which the instructed performance employer specifically I with perform. agree conclusion “that the second circumstance is met be- majority’s *14 cause is not normal duties.” As go-cart racing part Douglas’ job result, that remains was whether the first cir- only question cumstance was met.
Both the Board and the determined that was majority Douglas Yet, under “some to attend the Sadler’s event. duty” previously stated, the Board found that had a choice specifically whether to attend the Sadler’s event: “Claimant was a choice given either to the event or at work but he said that going remaining of he felt added.) to attend the event.” The pressured (Emphasis (that Board and the determinations was under majority’s event) some to attend the Sadler’s rest on a contradic- duty logical tion.
For the Board’s with a example, argument begins conjunctive (one that contains two based on the proposition conjuncts statutory contained in the first of K.S.A. 2008 44- language prong and the other based on the Board’s 508[f] finding a choice event) whether to attend the recreational that are given cannot both be under a logically contradictory: Douglas duty attend the recreational event and not be under a to attend duty the recreational event. In a like two-part conjunctive proposition, one, “and,” this one comes before the word and the other conjunct comes after the word “and.” “It is both and not rain- (E.g., raining In a the first the truth ing.”) conjunctive syllogism, premise negates aof the second affirms one of the conjunctive proposition; premise and the conclusion then de- conjunctive proposition’s conjuncts; nies the other Two inas this conjunct. contradictory conjuncts, can never be true or false will one example, together together; true, be and the other will be false. See The always always Joseph, Grammar, Trivium: Rhetoric, The Liberal Arts of Logic, pp. (2002). 114-15
The relation between these two can be reconstructed conjuncts as a conjunctive syllogism:
(1) The cannot both be under a to attend the employee duty recreational event and not be under a to attend the rec- duty reational event.
(2) The record indicates that the was not employee required (established attend the recreational event the Board’s finding choice of either to the event “[claimant going given work”). at or remaining Therefore,
(3) was not under a to attend the employee recreational event. of K.S.A. 2008 allows for
The statutory language can be middle no both to attend no required ground: to attend the recrea- the recreational event and nоt be required Trivium, 115. tional See The event. p. Joseph, *15 both the to their Board and justify reasoning, Consequently, so, have resorted to the liberal construction rule. In majority doing an unstated and elevated it have divined statutory purpose they to that above the clear text of the statute show requiring Douglas event under K.S.A. 2008 he had a to attend the recreational duty 44-508(f). Here, at- reasons that because majority “just that tendance- at the event was not does not mean mandatory Here, the was under no to attend. Board concluded duty Douglas that was under ‘some- to attend the event at Sadler’s.” duty’ Douglas Under the traditional the E that square opposition, proposition was “under no to attend” and the I that Douglas duty proposition attend” are in both was “under some duty opposed Moreover, too are Of the quantity quality. they contradictory. Cohen, true, two one is and one is false. propositions, only Copi 2005). (12th Introduction to ed. The E Logic, p. proposition states, notes, is true because the record as the majority correctly that a choice either to attend the event or to “Douglas given remain at work.” This fact proves contradictory: was “under no to attend.” duty
Moreover, under the standard the Board subjective adopted by and the can show that met the majority, they duty attend requirement by simply maintaining they perceived some to attend. How does one measure an duty employee’s per- will invite of some to attend? This standard confusion ception duty and increased arbitrariness. if the exclusion can avoid the first of
Finally,
prong
44-508(f)
K.S.A. 2008
under
by simply per-
requirement
event, the statute will
some
to attend a recreational
ceiving
duty
because, as the
soon become
majority correctly points
meaningless
out,
under the Act
is barred from
an
compensation
only
There is a
that the
have been met.
when both
presumption
prongs
intend to enact useless or
does not
meaningless legis
legislature
603, 631,
281 Kan.
v. Kansas
lation.
Dept. Agriculture,
Hawley
reasons,
(2006).
on
stated
the record
Because both under K.S.A. prongs satisfied, accidental did not arise out of and Moreover; of his because has course majority employment. 44-508(f), I a broad employed expansion would reverse.