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Adee v. Russell Stover Candies

July 3, 2008


Appeal from Workers Compensation Board.


1. When the facts in a workers compensation case are not in dispute, the question is whether the Board correctly applied those facts to the law, which an appellate court reviews de novo.

2. Under K.S.A. 2007 Supp. 44-501(e), compensation shall not be paid in case of coronary or coronary artery disease or cerebrovascular injury unless it is shown that the exertion of the work necessary to precipitate the disability was more than the employee's usual work in the course of the employee's regular employment.

3. Where an employee is negligently treated for a nonwork-related injury by an employer or co-employee whose job is to provide medical treatment to employees, there is a sufficient causal connection to make any aggravation of the injury or additional injury arising from that treatment compensable under the Workers Compensation Act.

4. It is the intent of the legislature that the Workers Compensation Act shall be liberally construed for the purpose of bringing employers and employees within the provisions of the act to provide the protections of the Workers Compensation Act to both.

5. The burden of proof is 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. In determining whether the claimant has satisfied this burden of proof, the trier of fact shall consider the whole record.

6. Under the facts of this case, the employer did not train its supervisors to use an automated external defibrillator. Therefore there was no responsibility for those supervisors to use an AED while rendering emergency care. The claimant has failed to show the employer lessened the stricken employee's chance of survival to the extent that it arose out of her work.

The opinion of the court was delivered by: Hill, J.



This appeal arises from the Workers Compensation Board's rejection of a surviving husband's workers compensation claim made after his wife died of a heart attack while working at the Russell Stover Candies, Inc. (RSC), plant in Abilene. A heart attack is not a compensable injury under Kansas law. But compensation can be awarded if a worker suffered a loss of chance of surviving a heart attack because of the negligence of an employer or co-employee and that loss arose out of the employee's employment. To be compensable, there must be a causal connection between the employment and the loss of chance of survival. Given our standard of review and the facts provided in the record on appeal, we hold the Workers Compensation Board correctly applied the facts to the law and correctly interpreted the law. We affirm.

On the day of the heart attack, speedy treatment was crucial for survival.

On February 7, 2006, at approximately 5:44 a.m., Marva Jolene Adee suffered a heart attack while working. At the time, the plant nurse had not yet begun her shift. Belinda J. Alexander, a supervisor, and Anthony Johnson, an employee were the first to reach her. Adee was found on the ground, gasping for air.

Alexander radioed for Alvis Nuttelman, the plant's superintendent; Alexander then left to retrieve a wheelchair and a first aid kit. Johnson stayed and observed Adee. But when Adee went limp and lost control of her bowels and bladder, Johnson believed she had flat lined. Recalling his cardiopulmonary resuscitation (CPR) training and experience with providing CPR in the Army, Johnson immediately initiated CPR on Adee.

Soon afterwards, Nuttelman arrived. The superintendent had some training on how to use an automated external defibrillator (AED) through his CPR class at the plant. Nuttelman stated that during his CPR class, the CPR trainer spent about 30 minutes on how to use the AED but that this training did not result in AED certification. This CPR class occurred approximately 8 months before Adee's heart attack.

After observing Johnson performing CPR on Adee, Nuttelman went to the reception area and requested the guard call 911. The guard/reception area was located 30 seconds away and housed an AED. Dispatch received the call at 5:45 a.m.

Without retrieving the AED from the guard/reception area, the superintendent returned. By this time, Mona Pohlman, another supervisor, had arrived. Because Pohlman discovered that Johnson was not CPR certified, Pohlman instructed Johnson to cease providing CPR. Pohlman restarted CPR on Adee once she obtained a CPR mask, which took approximately 1 to 2 minutes to retrieve.

We note that what happened during the delay while retrieving the mask is disputed. Johnson testified that there was a gap in time before Pohlman was given a CPR mask to reinitiate CPR. Pohlman testified that she took over for Johnson only after she had retrieved the CPR mask. Nuttelman, however, corroborated Johnson's deposition, stating that Johnson ceased performing CPR while Pohlman retrieved the CPR mask.

Paramedics/emergency medical technicians (EMTs) arrived at the plant at 5:51 a.m. At approximately 5:53 a.m., the EMTs began rendering care to Adee. The EMTs found that Adee did not have a pulse and was not breathing. They also noted that CPR was in progress, observing that it was being done properly. Periodically, the EMTs stopped CPR to check the pulse, but since a pulse was not ultimately found, the EMTs utilized their AED and administered the first shock at 5:55 a.m.

They transported Adee to the hospital where she regained a pulse and blood pressure. But Adee continued to be unresponsive. Because it was unlikely that Adee would regain meaningful neurological function, Adee's life support was discontinued. She died on February 10, 2006.

Certain Russell Stover policies are pertinent.

At the Abilene plant, RSC employs a plant nurse or EMT who is available during the morning and afternoon shifts. The morning shift begins at 7:30 a.m. The plant nurse or EMT is responsible for providing first aid and over-the-counter medication, such as acetaminophen, to RSC employees.

RSC also owns an AED that was purchased approximately 6 to 8 months before February 2006. RSC trains its supervisors so that they are certified in CPR and first aid. This policy allows supervisors to respond to incidents, if the plant nurse or ...

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