It’s that time of year . . . when we look back on this year and look forward to the year ahead. It’s that time of year . . . when we can’t help but write about the two cases from 2016 that will shed more insight onto the Minnesota Supreme Court’s previous Dykhoff ruling after it issues its decision of both 2016 cases in 2017. Both cases, Kubis and Hohlt, were heard before the Minnesota Supreme Court in October 2016.
In Dykhoff, the case that was ruled on by the Minnesota Supreme Court in 2013, the employee was instructed to attend a training session and to wear “dress clothes,” and fell while walking back to the conference room. Dykhoff v. Xcel Energy, 840 N.W.2d 821, 73 W.C.D. 865 (Minn. 2013). The employee had been wearing two-inch high heels at the time of the injury, and upon investigation, the Facility Operation Manager found no debris on the floor and the floor was dry. The Workers’ Compensation Court of Appeals (WCCA) overturned the compensation judge’s ruling, finding that the employee’s injury arose out of and in the course of her employment, but the Supreme Court reversed.
The WCCA based its analysis under three tests to determine whether the employee’s injury arose out of her employment: the increased risk test, in which the employee must show that she was exposed to a greater risk than the general public; the positional risk test, under which the employer placed the employee in the position that caused the injury; and the work-connection balancing test. The WCCA found that this situation passed under the muster of the increased risk test, stating that “[t]he arising out of element may not be as strong as it would be in a case that clearly passes the increased risk test, but in the course of element is strong enough to outweigh any deficiencies here.”
In reviewing the case, the Minnesota Supreme Court stated that when “the employment creates a special hazard from which injury comes, then, within the meaning of [Minn. Stat. § 176.021 (2012)], there is that ‘causal relation’ between employment” and the injury suffered (citing Hanson v. Robitshek-Schneider Co., 209 Minn. 599, 297 N.W. 19, 21 (1941)). The employee failed to prove that her workplace environment exposed her to an increased risk of injury that was not what she would face in everyday life. Therefore, the Minnesota Supreme Court found that because there was no proof that something about the floor increased the employee’s risk of injury, she did not meet the burden of proving that her injury arose out of her employment.
The Minnesota Supreme Court will once again grapple with the arising out of the course of employment and the aftermath of its ruling in Dykhoff. In Kubis, a nurse was working at a hospital when a code was called requiring all available staff to respond. Kubis v. Community Mem’l Hosp. Assoc., No. WC15-5842 (Feb. 5, 2016). At the time the code was called, the employee had worked 15 minutes past her shift time and was giving the oncoming shift nurses information regarding the patients. The employee responded to the code on the first floor and discovered it was a mock code. She was returning to her reporting station on the second floor and called for an elevator. The elevator was full, so she rushed up the stairs instead and fell, injuring her right shoulder.
The employee agreed that the stairs were not defective, but stated that she was fatigued after working seven shifts in a row and she was rushing because she felt pressure to comply with her job requirements of logging out timely. Witnesses were eventually called, who testified that the employee had worked four shifts, not seven, and that there was no policy or concern at the hospital for timely logging out.
The compensation judge held that Dykhoff requires a showing of increased risk to show that an injury arises out of employment. The WCCA, however, found that unlike Dykhoff, in which the employee fell for no apparent reason, the employee in this case fell due to fatigue and hurrying. Thus, the WCCA reversed the compensation judge, finding that the employee’s injury arose out of her employment because she felt rushed to report to the next nursing shift.
The other case recently heard before the Minnesota Supreme Court dealing with the element of arising out of is Hohlt. Hohlt v. Univ. of Minn., No. WC15-5821 (Feb. 3, 2016). In Hohlt, the employee worked at the University of Minnesota campus, and after work, walked to the parking ramp that was owned and operated by the University of Minnesota. She slipped and fell on an icy sidewalk maintained by the University.
The compensation judge concluded that the employee’s injury did not arise out of her employment because he accepted the employer’s argument that the Minnesota Supreme Court’s decision in Dykhoff was a “game changer” and created a new standard for determining whether an injury arose out of employment. The WCCA, however, disagreed and reversed.
The WCCA stated that based on the Supreme Court’s analysis in Dykhoff and other cases that it is apparent that the special risk or special hazard analysis applies in those cases when the employee is injured while not on the employer’s premises. Therefore, the injury is compensable if the employee faces an increased risk of injury on the employer’s premises because she was an employee and her injury stemmed from that risk. The WCCA stated that it was “irrelevant if members of the general public might encounter the same risk because they were not brought to that risk by employment. This circumstance has been labeled “increased risk” rather than “special risk.” Hohlt Thus, similar to the increased risk analysis the Supreme Court applied in Dykhoff, the WCCA concluded that the employee’s injury arose out of her employment because the employer owned and operated the parking lot, which was icy, and the employee was there not as part of the general public, but because of her employment by the university.
The Minnesota Supreme Court will issue rulings on Kubis and Hohlt in 2017
The arising out of element means that there must be some causal connection between the injury and the employment. However, it remains to be seen how the Minnesota Supreme Court justices may finesse their argument posed in Dykhoff and apply it to the cases of Kubis and Hohlt.