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No. 120,056

 

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MARY L. JOHNSON,

Appellee,

v.

STORMONT VAIL HEALTHCARE INC.,

Appellant.

SYLLABUS BY THE COURT

1.

To receive a workers compensation award, the law places the burden on the 

worker to prove that the injury arises out of and in the course of the worker's 

employment.

2.

By law, an accident or injury which arose out of a neutral risk with no particular 

employment or personal character cannot arise out of and in the course of employment in 

order to be compensable under the Workers Compensation Act.

3.

The question of whether an accident arises out of and in the course of employment 

is a question of fact.

4.

Upon appellate review, determining whether the Board's findings of fact are 

supported by substantial competent evidence is a question of law.
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5.

Words and phrases shall be construed according to the context and approved usage 

of the language, but technical words and phrases and other words and phrases that have 

acquired a peculiar and appropriate meaning in law, shall be construed according to their 

peculiar and appropriate meanings.

6.

In deciding whether an injury arises out of employment, the focus of inquiry 

should be on whether the activity that results in injury is connected to, or is in, the 

performance of the job.

7.

Once the claimant has met the burden of proving a right to compensation, the 

employer may seek relief from liability based on any statutory defense or exception. The 

employer then has the burden of proof on any claimed defenses or exceptions.

Appeal from Workers Compensation Board. Opinion filed July 12, 2019. Affirmed.

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

Roger D. Fincher, of Topeka, for appellee.

Before ARNOLD-BURGER, C.J., MALONE and HILL, JJ.

HILL, J.: Mary L. Johnson, a cleaning lady at Stormont Vail Hospital in Topeka, 

fell twice at work and was injured. She received workers compensation benefits after 

both the administrative law judge and the Workers Compensation Appeals Board ruled 

that she had proved her injuries arose out of and in the course of her employment even 

though she could not explain why she fell. Stormont Vail argues that since these were 

unexplained falls, they are neutral risks and any injuries arising from neutral risks are 
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noncompensable under the Workers Compensation Act. Because the Board made a 

factual finding that these falls had an employment character, that is, Johnson fell while 

walking, and walking was a major portion of her job, we hold the Board properly 

awarded Johnson workers compensation benefits. The Act only exempts from 

compensation injuries from neutral risks such as unexplained falls that have no 

employment character. 

Within a span of a few months, Johnson suffers two falls.

Johnson worked at Stormont Vail Hospital in the Environmental Services 

Department as a housekeeper. Her duties included cleaning patients' rooms, bathrooms, 

waiting rooms, lobbies, and most other areas of the hospital. These duties also included 

changing sheets, making beds, carrying dirty linens to bins, removing trash, dusting, 

sweeping, and vacuuming. 

In 2015, while she was walking down a basement hallway in the hospital on her 

way to clean the pavilion, her foot caught somehow and she fell. She later explained, "I 

was just walking down, down the hallway and I, I just trip—I fell." Johnson later stated, 

"I was just—just walking and next thing I knew I had—my foot caught like that, or 

something, and I just fell flat." She elaborated, "I know my foot stopped (indicating). It 

stopped, that's what made me trip." Johnson could not say definitively what made her 

fall—whether she slipped or if her foot caught on something sticky. Johnson noticed 

nothing on the floor that she could have tripped over or that was wet. 

When she fell, she hit her left knee, skinned her arm, and got a floor burn on her 

right hand that became bruised. She also shattered her left kneecap. This injury forced her 

to go to a rehabilitative center for about four days, and then after her discharge she 

underwent physical therapy. Johnson was off work for three months. 
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About six months after returning to work, Johnson was again walking down the 

basement hallway when she fell just outside the housekeeping office. This time, she was 

carrying cleaning supplies. "All I saw was me and my supplies scattered all over the 

floor." She again denied slipping on anything, said the floors looked fine, but also noted 

that sometimes her shoes stuck to the floor. 

From this fall, Johnson fractured her left wrist. Once again, she could not work for 

three months. When her doctor released her to return to work, she was told to wear a 

brace. But since Stormont Vail did not want her to work while wearing a brace, it placed 

her on extended leave for another month. 

Like the first fall, why Johnson fell is unclear. Once again, Johnson acknowledged 

there was not anything obvious on the floor that caused her fall. She suggested it was 

possibly because of the hospital floors being sticky due to an improperly mixed cleaning 

chemical. After Johnson's second fall, her supervisor asked her what caused it. At his 

deposition, Johnson's supervisor could not recall Johnson's answer, but he thought she 

said that she was not sure. He checked the floor for wetness and found it was not wet, but 

he did not check for stickiness. At the time of both falls, Johnson was wearing closedtoed, rubber-soled shoes required by her employer. The floor in the basement is covered 

mainly with hard tile and rubber matting in some spots. 

Johnson seeks workers compensation benefits. 

In short, Johnson's respective injuries from her falls were a left patellar fracture 

and a left distal radius fracture. She received conservative treatment for both injuries. At 

her initial hearing, she reported occasional or continued symptoms such as a dull ache, 

decreased range of motion, and stiffness in her left knee. She reported throbbing, 

tenderness, decreased range of motion, numbness, and weakness in her left wrist. 
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The parties stipulated that Johnson suffered a work-related injury by traumatic 

accident on both dates. Johnson argued that both accidents arose out of and in the course 

of her employment. Stormont Vail argued they did not. In its view, her falls resulted from 

a neutral risk with no particular employment or personal character and were therefore, not 

compensable. The administrative law judge found for Johnson on this point and awarded 

compensation for both falls. 

Stormont Vail sought review of the award to the Workers Compensation Appeals 

Board, arguing that Johnson's injuries arose from neutral risks or idiopathic causes. In the 

hospital's view, Johnson's injuries did not arise out of and in the course of her 

employment and were thus not compensable. 

Rejecting Stormont Vail's position, the Board adopted the ALJ's stipulations, 

which included the joint stipulation that Johnson suffered work-related injuries during her 

two falls. The Board found that Johnson's job required her to stand and walk the entire 

day. The Board did, however, reject the ALJ's speculation that Johnson was injured 

because of work fatigue or work distractions. The Board found that Johnson did not 

prove her falls were caused by her shoes sticking to any cleaning chemical residue on the 

floors. 

To sum up, the Board held that Johnson's accidental injuries arose out of and in the 

course of her employment. While the Board acknowledged Stormont Vail's argument that 

because Johnson's falls were unexplained, they were caused by neutral risks, it ruled that 

it was Stormont Vail's burden to prove the existence of a personal or neutral risk that 

would deny a finding of a compensable injury. 

The Board found that a neutral risk barred compensability for injuries when the 

neutral risk had no particular employment or personal character. The Board noted the 

record lacked proof of an element of personal character to the incidents or injuries, but in 
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looking to the context of Johnson's falls, there was an employment character—"namely 

Johnson's need to walk to get the job done." Thus, the Board found both of Johnson's 

injuries were compensable: 

"Neither fall involved what would be only a neutral risk, but rather they involved neutral 

risk with a particular employment character. Walking was required to do the work and 

Johnson was injured while walking. The Board does not view the [Kansas Workers 

Compensation Act] as requiring that a worker explain why an accident or injury occurred 

when the worker sustains an injury by accident while performing job tasks." 

Thus, the Board's logic is manifest. It concluded that Johnson's injuries by accident arose 

out of and in the course of her employment because her work required her to walk. In the 

context of her job, the need to walk shows the employment character of the neutral risk 

here. By applying the statutory definition, the Board ruled her injuries were compensable. 

Stormont Vail appealed to this court. 

Stormont Vail raises two issues on appeal. First, in its view, the Board improperly 

interpreted and applied the law by finding that there was not a neutral risk that barred 

compensation and erred when it concluded that Johnson's accidents arose out of and in 

the course of her employment. Second, the Board erred by placing the burden of proof on 

Stormont Vail to establish Johnson's accidents were caused by a neutral risk.

In response, Johnson argues that we should affirm the Board. She contends that 

she met her burden to show her accidents arose out of and in the course of her 

employment, and that Stormont Vail's failure to establish a neutral risk was merely 

ancillary to the Board's finding that she had proved a work-related injury. Johnson 

maintains that the burden of proving a neutral risk caused her accidents was Stormont 

Vail's since the hospital argued that she had failed to meet her burden. And Johnson 

contends that it was not her burden to prove a negative. We will address the issues in that 

order after a brief review of some fundamental principles of workers compensation law. 
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We review some legal principles that guide us.

It is fundamental that to receive a workers compensation award, a worker must 

suffer a work-related injury and the law places the burden on the worker to prove that the 

injury arises out of and in the course of the worker's employment. K.S.A. 2018 Supp. 44-

501b(c). But the circumstances here give us more to consider—the application of an 

amendment to our Workers Compensation Act. 

There are four classes of injuries that are not compensable under the Act. By 

enacting K.S.A. 2018 Supp. 44-508(f)(3)(A), the Legislature specified that the familiar 

phrase, "arising out of and in the course of employment," as used in the Act, shall not be 

construed to include an:

"(i) Injury which occurred as a result of the natural aging process or by the 

normal activities of day-to-day living;

"(ii) accident or injury which arose out of a neutral risk with no particular 

employment or personal character;

"(iii) accident or injury which arose out of a risk personal to the worker; or

"(iv) accident or injury which arose either directly or indirectly from idiopathic 

causes." (Emphasis added.)

In other words, injuries that are caused by natural aging or day-to-day activities, injuries 

from neutral risks with no particular employment or personal character, injuries from 

risks personal to the worker, and injuries from idiopathic causes are not compensable 

under our system of workers compensation. Here, we must focus on the law on neutral 

risks. 

Our tasks here are well established. The interpretation or construction of the Act is 

a question of law. But once that interpretation or construction occurs, the ultimate 

question of whether an accident arises out of and in the course of employment is a 
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question of fact. Determining whether the Board's findings of fact are supported by 

substantial competent evidence is a question of law. Estate of Graber v. Dillon 

Companies, 309 Kan. 509, Syl. ¶ 3, 439 P.3d 291 (2019). Applying that rule here means 

that we will not disturb the Board's findings on appeal that Johnson's two injuries arose 

out of and in the course of her work if those findings are supported by substantial 

competent evidence.

The Board did not misinterpret the law. 

While the hospital does not argue with the Board's findings of fact, it does claim a 

legal error. Stormont Vail's argument can be summarized in the following syllogism: 

 All injuries from neutral risks, such as unexplained falls, are 

noncompensable under the Workers Compensation Act;

 Johnson suffered injuries from two unexplained falls;

 thus, Johnson's injuries are noncompensable.

The flaw in Stormont Vail's logic is in the first premise. That statement ignores the 

complete statute. It omits important qualifying language used by the Legislature in 

writing the exemption statute. Instead, Stormont Vail argues in general terms about 

unexplained falls being neutral risks, and neutral risks are no longer compensable under 

workers compensation law. We cannot ignore this language as Stormont Vail does.

The exemptions statute is explicit: "The words 'arising out of and in the course of 

employment' as used in the workers compensation act shall not be construed to include: 

. . . accident or injury which arose out of a neutral risk with no particular employment or 

personal character." K.S.A. 2018 Supp. 44-508(f)(3)(A)(ii). The last part of the sentence, 

"with no particular employment or personal character," is significant. These words have 

meaning, and the Legislature included them for a reason. 
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An understanding of the importance of this qualifying language comes from our 

caselaw on neutral risks. The wellspring for categories of risk in workers compensation 

cases can be traced to the worker killed by sniper fire—Hensley v. Carl Graham Glass,

226 Kan. 256, 258, 597 P.2d 641 (1979). Citing 1 Larson, Workmen's Compensation 

Law § 7 (1978), the Hensley court held that there are three general categories of risks in 

workers compensation cases: 

(1) those distinctly associated with the job; 

(2) risks which are personal to the worker; and 

(3) the so-called neutral risks which have no particular employment or personal 

character.

Note the qualifying phrase, "which have no particular employment . . . character" 

has been in our caselaw from the beginning. The phrase is, in our view, either a technical 

term or a term that has through caselaw acquired a peculiar meaning. This means that the 

2011 amendments to our Act have not modified the law of neutral risks, but have 

explicitly incorporated these technical terms into the law. The question arises, then, how 

are we to construe this statute here? 

First, we look at our law dealing with statutory construction—K.S.A. 2018 Supp. 

77-201. It teaches us that "[w]ords and phrases shall be construed according to the 

context and approved usage of the language, but technical words and phrases, and other 

words and phrases that have acquired a peculiar and appropriate meaning in law, shall be 

construed according to their peculiar and appropriate meanings." The next logical step, 

then, is to see what peculiar meaning these words have acquired with the passage of time 

and the rendering of interpretations made by the Legislature and the courts. 

After Hensley, this court in McCready v. Payless Shoesource, 41 Kan. App. 2d 79, 

200 P.3d 479 (2009), relied on the categories of risk set out in that case. The McCready

panel held that injuries sustained in an unexplained fall were compensable under the 
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Workers Compensation Act in effect at that time. The court held that, "McCready fell in 

the course of her employment with no explanation. As the Board has ruled, this is a 

neutral risk that is compensable." 41 Kan. App. 2d at 488. It is important that the panel 

affirmed the Board's finding of fact that her injuries arose out of and in the course of her 

employment. 

Here, the Board clearly held that it was Johnson's burden to prove that her injuries 

arose from her employment. The Board made this finding of fact on her walking as part 

of her job tasks:

"In both instances, walking was part of Johnson's work duties and she was working when 

she fell. As such, her cases are compensable. Neither fall involved what would be only a 

neutral risk, but rather they involved neutral risk with a particular employment character. 

Walking was required to do the work and Johnson was injured while walking. The Board 

does not view the KWCA as requiring that a worker explain why an accident or injury 

occurred when the worker sustains an injury by accident while performing job tasks."

The record on appeal reveals that the evidence supports those findings, and we 

will not disturb them on appeal. Simply put, Johnson was walking down the hall at work 

both times when she fell. Stormont Vail does not dispute this finding in its brief except to 

contend it is legally erroneous based on its mistaken view that neutral risk injuries are 

now noncompensable. It does not dispute the facts. It disputes the law. 

We reject Stormont Vail's implicit argument that injuries arising from all neutral 

risks are now noncompensable since the 2011 amendments to the Act. This is just not so 

because the language of the law expresses an exclusion for neutral risks that have no 

employment character. If the Legislature wanted to eliminate injuries arising from all 

neutral risks, it could have said so explicitly. But it did not. It included the express 

qualifying language found in Hensley. 
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Walking further down this line, we come to Bryant v. Midwest Staff Solutions, 

Inc., 292 Kan. 585, 595-96, 257 P.3d 255 (2011). The court acknowledged that no brightline test for what constitutes a work injury is possible. The court, however, found the 

proper approach is to focus on whether the injury occurred as a consequence of the broad 

spectrum of life's ongoing daily activities, such as chewing, breathing, or walking in 

ways that were not peculiar to the job, or as a consequence of an event or continuing 

events specific to the requirements of performing one's job. "'The right to compensation 

benefits depends on one simple test: Was there a work-connected injury? . . . [T]he test is 

not the relation of an individual's personal quality (fault) to an event, but the relationship 

of an event to an employment.'" 292 Kan. at 595-96 (citing 1 Larson's Workers' 

Compensation Law § 1.03(1) [2011]).

The Bryant court found that the focus of inquiry should be on whether the activity 

that results in injury is connected to, or is in, the performance of the job. The statutory 

scheme does not reduce the analysis to an isolated movement—bending, twisting, lifting, 

walking, or other body motions—but looks to the overall context of what the worker was 

doing—welding, reaching for tools, getting in or out of a vehicle, or engaging in other 

work-related activities. 292 Kan. at 595-96.

After Bryant came Graber, a case that focused on the idiopathic exception. We 

will deal with Graber more extensively in our treatment of Stormont Vail's argument 

about its burden of proof. But we want to point out that Graber reversed the Board 

because no evidence supported its finding that Graber's fall resulted from an idiopathic 

cause. The court thus reversed the Board's ruling that Graber's injuries were not 

compensable. Here, in contrast, there is evidence of the fall having an employment 

character, a fact that is not disputed.

The Board properly looked at the overall context of Johnson's job duties when it 

made its ruling. With the guidance of Bryant, and its one simple test, when we ask "was 
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there a work related injury?" we can only say, "Yes." Although Johnson's injuries arose 

from unexplained falls, she was entitled to workers compensation benefits because under 

the circumstances, the neutral risks had a particular employment character. The entire 

statute must be applied—not just one part.

It is reasonable to require parties to prove their claims. 

Stormont Vail argues that the Board erroneously shifted the burden and required 

the hospital to prove that Johnson's accidents resulted from a neutral risk. Essentially, 

Stormont Vail argues that K.S.A. 2018 Supp. 44-501b(c) required Johnson to also prove 

her accidents were not caused by a neutral risk. In other words, once Johnson proved her 

right to compensation under 44-501b(c), she also had to prove her injuries did not arise 

from a neutral risk. Essentially, Stormont Vail argues that Johnson should have to prove a 

negative.

We find Stormont Vail's argument that a claimant must prove the inapplicability of 

one of the four exempt classes of injury unpersuasive. Stormont Vail does not argue that 

Johnson needed to also prove her accidents did not result from her natural aging process; 

or prove the injuries were not from a risk personal to her; or that they were not caused by 

an idiopathic cause. We must ask then, if it was Johnson's burden to prove one negative, 

that on neutral risks, why then is it not also her burden to prove three other negatives, as 

well?

Stormont Vail does not explain why Johnson has to prove the inapplicability of 

one, but not all four, exempt causes. If the Legislature wanted the claimant to prove in 

each claim that his or her injuries were not in the four exempt classes, it could have 

written that requirement into the statute. But it did not, and we will not rewrite the law as 

Stormont Vail wishes it to read. 
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There is an order of proof at work here. First, Johnson provided evidence of her 

falls and resulting injuries. Then, it was Stormont Vail that raised neutral risk as a 

defense to Johnson's accidents at work. Once the claimant has met the burden of proving 

a right to compensation, the employer may seek relief from liability based on any 

statutory defense or exception. This court has often held that the employer has the burden 

of proof on any claimed defenses or exceptions. Messner v. Continental Plastic 

Containers, 48 Kan. App. 2d 731, 751, 298 P.3d 371 (2013). In Rash v. Heartland 

Cement Co., 37 Kan. App. 2d 175, 186, 154 P.3d 15 (2006), the court ruled that once the 

claimant has met their burden, the respondent employer has the burden to show any 

exception.

The Board found that it was Stormont Vail's burden to establish a neutral risk 

barring Johnson from compensation and that the hospital had not done so. For this 

finding, the Board relied upon language in Smalley v. Skyy Drilling, No. 111,988, 2015 

WL 4366531, *4 (Kan. App. 2015) (unpublished opinion), which held that it was an 

employer's burden to prove the existence of a neutral risk that would deny a finding of a 

compensable injury. Stormont Vail criticizes Smalley as an opinion without explanation, 

and without citation to any precedent. The hospital contends that it was somehow 

incongruous for the Smalley panel to acknowledge the claimant's burden to prove his 

right to compensation and then hold it was the employer's burden to prove the existence 

of a neutral risk. 

We are not convinced by Stormont Vail's criticism of Smalley. The Smalley panel 

relied on the definition of "burden of proof" in the Act to rule that the injured worker 

"simply must prove that he or she has a right to compensation and the various conditions 

on which that right depends 'are more probably true than not true.'" Smalley, 2015 WL 

43666531, at *4. The language in the statute has not changed. Under K.S.A. 2018 Supp. 

44-501b(c) and K.S.A. 2018 Supp. 44-508(h), a claimant must simply prove that they 
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have a right to compensation and the various conditions on which that right depends are 

"more probably true than not true." Stormont Vail's argument that the ruling was 

"without . . . precedent" does not refute the statutory analysis made by the Smalley panel. 

In fact, we find the panel's analysis persuasive.

Johnson thus did not have to prove that the basement floors were not clean, were 

not dry, or were sticky as a result of commercial cleaner residue; she just had to show that 

it was more probably true than not that she was walking in the course or in furtherance of 

her duties when she fell. See Smalley, 2015 WL 4366531, at *4.

Finally, we return to Graber. The Kansas Supreme Court held that the plain 

language of K.S.A. 2018 Supp. 44-508(f)(3)(A)(iv) about the idiopathic exception 

renders an injury noncompensable only upon proof that the injury or accident arose 

directly or indirectly from a medical condition or medical event of unknown origin 

peculiar to the claimant. Graber, 309 Kan. at 524. This language is clear. If a party wants 

to claim an exception, then there must be proof of that exception. The opinion does not 

require that the claimant of workers compensation benefits must prove the negative. That 

is, the injured worker in Graber need not prove that the injuries are not from an 

idiopathic condition.

Like idiopathic causes, neutral risks are also listed as exempt causes of injury. 

Thus, by analogy, we can see then that if a party claims that the injuries are the result of 

neutral risks with no particular employment or personal character, there must be proof of 

those circumstances. It is reasonable to place the burden upon the party making such a 

claim to prove that claim. Accordingly, if the burden is on the employer to provide proof 

that one subparagraph (f)(3)(A) exception applies to prevent liability for an injury, as the 

Supreme Court ruled in Graber, then it is reasonable to conclude the same holding should 

apply to the other exceptions in that statute, such as neutral risk. 
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The Board found that Johnson met her statutory burden and, under these 

circumstances, the burden was then on Stormont Vail to support its claim of a neutral risk 

with no particular employment character, to deny a compensable injury. The Board was 

right to do this. The burden to prove the existence of a personal or neutral risk that would 

deny a finding of a compensable injury belonged to Stormont Vail. We hold that the 

Board was correct in its ruling, and we reject Stormont Vail's argument to the contrary. 

We affirm the Board's decision.