While in Enid, the crew stayed at the Baymont Inn, which Webcon selected. Each room housed two crew members. Webcon paid for the room and all meals. Crew members also received an additional $25 payment for each night they stayed in Enid. Each work day at around 6 a.m. or 7 a.m., the crew left the hotel in company trucks to travel to the worksite; they returned to the hotel around 6 p.m. or 7 p.m.

Crew members were paid from the time they departed until they arrived back at the Baymont. Upon their return, crew members were no longer under Webcon's supervision and were free to do what they wished. Crew members were permitted to use the company trucks to run errands if they received permission from a foreman. However, they were not permitted to take a company truck to a bar.

Across the street from the Baymont was a Ramada Inn. Unlike the Baymont, the Ramada had a bar. It was common for crew members to walk to the Ramada after work to have drinks.

On the evening of June 15, 2009, the crew returned from the worksite and grilled dinner together at the Baymont. After dinner, Mr. Atkins walked to the Ramada to have drinks and play darts. At 2:20 a.m., Mr. Atkins was walking back to the Baymont when he was struck by a vehicle driven by an intoxicated driver.

Mr. Atkins' injuries were severe. Doctors had to amputate his right leg, a finger, and a toe. In addition to extensive internal injuries, Atkins lost vision in his right eye and underwent several skin grafts.

In October 2009, Mr. Atkins submitted an application for hearing with the Division of Workers Compensation of the Kansas Department of Labor. Following a preliminary hearing, an administrative law judge (“ALJ”) determined that Mr. Atkins' injuries were the result of a hazard created by the conditions of his employment, namely his required travel to Enid. The ALJ ordered temporary total disability and directed Webcon to pay Mr. Atkins' medical treatment.

The Workers Compensation Board affirmed the ALJ's preliminary order, reasoning that once Mr. Atkins departed from Hutchinson in a company truck, he “assumed the duties of his job and the entire undertaking [was] an indivisible one.”

In April 2014, the ALJ conducted a regular hearing. The ALJ ultimately concluded travel was an intrinsic part of Mr. Atkins' job and that Mr. Atkins had been “injured as the result of traveling to Enid, Ok[lahoma] to complete a work related errand.” As such, the ALJ found that Mr. Atkins' injuries arose out of and occurred in the course of his employment.

The board reversed, disagreeing that travel was intrinsic to Mr. Atkins' work. The board determined that Mr. Atkins was a fixed-situs employee who was not at work at the time of his injuries. It concluded:

Claimant was not at work in his employer's service at the time of his injury, nor did his injury arise out of the nature, conditions, obligations or incidents of his employment with respondent. Claimant's work day ended when he was delivered to the Baymont Inn. Claimant's time spent at the Ramada Inn bar had no connection to his employment. Respondent received no benefit from claimant spending time at a bar and walking back to his room at 2:25 in the morning. Claimant was not engaged in a custom of his employment or activity contemplated as work-related by respondent.

The court of appeals affirmed the board's decision, and the dispute reached the Kansas Supreme Court.

The Kansas Supreme Court's Decision

The court affirmed, concluding that Mr. Atkins had not demonstrated that his injuries arose out of and in the course of his employment.

In its decision, the court explained that a worker traveling to and from work generally was not entitled to workers' compensation benefits because mere travel to and from work did not arise out of and in the course of employment. However, the court added, benefits might be payable to a worker injured while traveling when the travel was an “intrinsic part of the employee's job.”

The court noted that the board and the court of appeals both had concluded that travel was not intrinsic because Mr. Atkins had become a “fixed-situs” employee who had established a temporary residence at the Baymont. In the court's opinion, pursuing this line of analysis concerning whether travel was intrinsic to Mr. Atkins' work “needlessly complicated this case.”

The court said that the focus should be whether Mr. Atkins' injuries had arisen out of and in the course of employment.

The court then ruled that the facts demonstrated that Mr. Atkins “was not going to or coming from work when he was injured.” Rather, the court said, Mr. Atkins had walked to the bar after dinner to have a few drinks and unwind after a day of work. While at the bar, the court added, Mr. Atkins was not fulfilling a work related duty and, while walking from the bar back to his hotel room in the early morning hours, he “was not on the way to assuming any of the duties of his employment.”

The court decided that substantial competent evidence supported the board's ultimate finding that Mr. Atkins' injuries had no arisen out of and in the course of his employment and had not occurred “while he was fulfilling work duties or doing something incidental to those duties.”

The court conceded that staying at the Baymont Inn while the roofing crew was in Enid may have been incidental to his work duties, and that if his injuries had arisen from that fact – for example, in a hotel fire – the case would “possibly” have a different result.

The court found, however, that Mr. Atkins' presence at the hotel was not the “operative fact” in this case because he had been injured while walking between a bar and the hotel in the middle of the night. That activity was “too far removed” from any of Mr. Atkins' work duties to properly be described as incidental to those duties, according to the court.

Accordingly, the court concluded that Mr. Atkins' injuries had not arisen out of or in the course of his employment.

The case is Atkins v. Webcon, Inc., No. 113,117 (Kansas June 8, 2018). Attorneys involved include: Melinda G. Young, of Bretz & Young, of Hutchinson, argued the cause and was on the brief for appellant. Roy T. Artman, general counsel, Kansas Building Industry Workers Compensation Fund, argued the cause and was on the brief for appellees.