Dykhoff v. Xcel Energy

OPINION

Relator Toni Dykhoff fell and dislocated her left patella while attending a required training session at the general office of her employer, Xcel Energy. Dykhoff filed a claim for workers’ compensation benefits. The compensation judge held a hearing, found that Dykhoffs injury did not arise out of and in the course of her employment, and denied Dykhoffs claim. Dykhoff appealed to the Workers’ Compensation Court of Appeals (WCCA), which reversed the compensation judge. Because we conclude that the WCCA erred as a matter of law in concluding that Dykhoffs injury was compensable, we reverse the ruling of the WCCA and reinstate the decision of the compensation judge.

The facts in this case are largely undisputed. Toni Dykhoff, a 47-year-old journeyman electrician, began working at Xcel Energy on August 17, 2009. Her job duties included electronically monitoring power and transmission lines in Minnesota, North Dakota, and South Dakota. Her job was a desk position, and she usually worked out of Xcel’s Maple Grove Service Center. Typically, Dykhoff wore jeans and other casual wear to work. Prior to her fall, Dykhoff had no history of knee problems, no problem walking, used no assistive devices, and walked with “a normal gait.”

Dykhoff was instructed to attend a training session taking place on June 20, 2011, at Xcel’s general office in downtown Minneapolis. Dykhoff was instructed to wear “dress clothes” for the training session, as was the custom for employees attending meetings at the general office. Dykhoff therefore arrived at the general office, on June 20, 2011, wearing a dress shirt and dress pants. She also wore shoes with two inch wooden heels. Apart from the general direction to wear “dress clothes,” no one told Dykhoff what type of shoes to wear.

Dykhoff arrived at the general office at approximately 8:00 a.m. on June 20 and went through security, arriving at the lower-level meeting room at approximately 8:05 a.m. Upon exiting the elevator on the lower level, she placed her coat, purse, and computer bag on a bench and walked over to the hallway where the meeting room was located. Seeing no lights on and no *824one in the hallway, she turned on the lights in a small conference room near the entrance to the hallway. Dykhoff then came back to the bench, picked up her coat, purse, and computer bag, and began to walk back towards the conference room to wait. Dykhoff testified that she was walking at a normal pace.

While walking back to the conference room, Dykhoff fell, landing on her buttocks with both feet extended in front of her. When Dykhoff hit the floor, her left leg was at an awkward angle, she “felt a pop in [her] left knee” and her “knee pop[ped] out of joint.” Dykhoff described the floor she fell on as “slippery,” “hard shiny linoleum” with a “highly polished surface.” Dykhoff explained that she did not trip and that there was no possibility her leg gave out. Dykhoff acknowledged that immediately prior to her fall she had walked across the same stretch of floor without incident and that there was no incline where she fell, the floor was not wet, and there was no debris on the floor.

Shortly after Dykhoffs fall, a Facility Operations Manager for Xcel went to the lower level and found Dykhoff still laying on the floor, waiting for paramedics. The Facility Operations Manager confirmed that there was no debris on the floor and that the floor was dry. After paramedics took Dykhoff to the emergency room, the Facility Operations Manager and his colleague checked the floor and determined that it was shiny but not slippery. Additionally, the Facility Operations Manager and his colleague took pictures of the area that showed scuff marks on the floor near where Dykhoff fell. Dykhoff said that the scuff marks appeared to be where her feet slipped, and she confirmed that the marks were the same color as her wooden heels and were in a V shape, which was consistent with her description of her fall. Dyk-hoff was transported to North Memorial Medical Center, where she was treated for a left patellar dislocation.

Dykhoff filed a claim petition for workers’ compensation benefits, and a compensation judge held a hearing on the claim. Prior to the hearing, the parties stipulated that all of the medical expenses at issue were related to Dykhoffs left knee injury, were reasonable and necessary, and were causally related to Dykhoffs fall. The parties also stipulated that Dykhoffs period of temporary total disability was one week and that her average weekly wage on the date of the injury was $1,416.55. The only issue contested at the hearing, therefore, was “whether [Dykhoffs] left knee condition is a compensable work injury” arising out of her work activity.

At the hearing, Dykhoff testified regarding her actions and injury on June 20, 2011, as described above. The Facility Operations Manager testified on behalf of Xcel. As part of his job, the Facility Operations Manager testified that he is “constantly throughout the whole [general office] building daily” and is “looking for things to make sure, especially at the [general office], make sure everything is clean and [ ] operable” and that “there’s no safety issues or concerns.” He further testified that the floor where Dykhoff fell is terrazzo flooring made of “chips of ... marble, granite, and etc.” He stated that the floor where Dykhoff fell is “mopped nightly by our contractors” and is stripped and waxed twice a year, most recently about 1 month before Dykhoff fell. Additionally, Xcel submitted documentation of testing on the floor performed by a third party after the fall, which showed that the “coefficient of friction,” in other words, the slipperiness of the floor, was within Occupational Safety and Health Administration (OSHA) specifications.

Following the hearing, the compensation judge issued findings of fact and an order *825denying and dismissing Dykhoffs claim. The compensation judge held that for an injury to be compensable, “the employee must show that her injury was caused by an ‘increased risk’ — a risk related to her work activity or environment that heightened the likelihood of an injury beyond the level of risk experienced by the general public.” The compensation judge found that “[Dykhoff] walked across the area where she fell without incident just moments before the fall occurred;” “an equally plausible explanation for [Dykhoffs] fall [was her] shoes with 2 inch heels;” and “the floor where [Dykhoff] fell was highly polished, very clean, dry and flat.” The compensation judge found that the evidence “fail[ed] to establish the floor where [Dykhoff] fell on June 20, 2011 was slippery,” and “fail[ed] to establish [Dykhoff] was at any increased risk for falling due to the condition of the floor.” Accordingly, because Dykhoff failed to establish that her injury was caused by an increased risk, the compensation judge determined that Dykhoffs injuries were not compensa-ble.

The Workers’ Compensation Court of Appeals reversed. Dykhoff v. Xcel Energy & CCMSI, 2012 WL 6592145 (Minn. WCCA Nov. 29, 2012). The WCCA considered three tests to determine whether Dykhoffs injury arose out of her employment: the increased risk test, under which the employee must show that she is exposed to a greater risk than the general public; the positional risk test, under which the employee need only show that her employer placed her in the position where she was injured; and the work-connection balancing test derived from Bohlin v. St. Louis Cnty./Nopeming Nursing Home, 61 Minn. Workers’ Comp. Dec. 69 (WCCA 2000), aff'd without opinion, 621 N.W.2d 459 (Minn.2001). Dykhoff, 2012 WL 6592145, at *5-7. The WCCA concluded that the compensation judge erred by exclusively applying the increased risk test because “the proper test is the ‘work-connection’ analysis laid out in Bohlin, and the ‘arising out of element must be balanced with the ‘in the course of element to determine compensability.” Id. at *10. The WCCA concluded 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 the in the course of element is strong enough to outweigh any deficiencies here.” Id. at *11. Accordingly, the WCCA “reverse[d] the compensation judge’s determination that the injury did not arise out of and in the course [off the employment,” relying in part on its conclusion that “the floor was certainly a contributing factor in [Dyk-hoffs] injury.” Id. Xcel sought certiorari review.

On appeal, Xcel argues that the WCCA erred as a matter of law in applying the balancing test from Bohlin to assess whether Dykhoffs injury was com-pensable. Xcel also argues that the WCCA erred in substituting its findings of fact for those of the compensation judge. The WCCA is a “specialized agency of the executive branch, its members selected for their experience and expertise,” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 61 (Minn.1984), and is entrusted with deciding “all questions of law and fact arising under the workers’ compensation laws of the state in those cases that have been appealed to the [WCCA].” Minn.Stat. § 175A.01, subd. 5 (2012). We will reverse the WCCA on review if we determine that it clearly and manifestly erred by rejecting findings supported by substantial evidence and substituting its own findings. Gibberd v. Control Data Corp., 424 N.W.2d 776, 779-80 (Minn.1988). But when interpreting statutory provisions within the Workers’ Compensation Act, we apply a de novo standard of *826review. Reider v. Anoka-Hennepin Sch. Dist. No. 11, 728 N.W.2d 246, 249 (Minn.2007).

I.

The question presented in this case is whether Dykhoffs injury is compensable under Minn.Stat. § 176.021 (2012). Section 176.021 provides that “[e]very employer is liable for compensation according to the provisions of this chapter and is liable to pay compensation in every case of personal injury or death of an employee arising out of and in the course of employment without regard to the question of negligence.” Minn.Stat. § 176.021, subd. 1. The employee bears “[t]he burden of proof’ to show that the injury “aris[es] out of and in the course of employment.” Id. The statute defines “personal injury” as an “injury arising out of and in the course of employment ... while engaged in, on, or about the premises where the employee’s services require the employee’s presence as a part of that service at the time of the injury and during the hours of that service.” Minn.Stat. § 176.011, subd. 16 (2012).

Interpreting section 176.021, we have consistently held that there are two distinct requirements for an injury to be compensable under the statute — the “arising out of’ requirement and the “in the course of’ requirement. See e.g., Gibberd, 424 N.W.2d at 780 (holding that where an employee was assaulted while on a meal break on a public street by a person with no nexus to his employment, the employee’s injury and death did not arise out of and in the course of his employment). The “arising out of’ requirement “eonnote[s] a causal connection” and the “in the course of’ requirement “refers to the time, place, and circumstances of the incident causing the injury.” Id.; see also Hanson v. Robitshek-Schneider Co., 209 Minn. 596, 599, 297 N.W. 19, 21 (1941). There is no dispute here that Dykhoff satisfies the “in the course of’ requirement because her injury occurred within the time and space boundaries of her employment. The “arising out of’ element, therefore, is the only element at issue in this case.

A.

We have said that “[t]he phrase ‘arising out of means that there must be some causal connection between the injury and the employment.” 1 Foley v. Honeywell, Inc., 488 N.W.2d 268, 271 (Minn.1992). This causal connection “is supplied if the employment exposes the employee to a hazard which originates on the premises as a part of the working environment, or ... peculiarly exposes the employee to an external hazard whereby he is subjected to a different and a greater risk than if he had been pursuing his ordinary personal affairs.” Nelson v. City of St. Paul, 249 Minn. 53, 55-56, 81 N.W.2d 272, 275 (1957); see also id. at 56, 81 N.W.2d at 276 (“[I]f the injury has its origin with a hazard or risk connected with the employment, and flows therefrom as a natural incident of the exposure occasioned by the nature of the work, it arises out of the employment.”). When “the employment creates a special hazard from which injury comes, then, within the meaning of the statute, there is that ‘causal relation’ between employment” and the injury. Hanson, 209 Minn. at 599, 297 N.W. at 21; see *827also Olson v. Trinity Lodge No. 282, 226 Minn. 141, 147-48, 32 N.W.2d 255, 259 (1948) (concluding that an employee’s injuries arose out of his employment when “as an incident and as an obligation of his employment, [he] was exposed to the risk of being upon an icy sidewalk constituting a part of the working premises”); Barlau v. Minneapolis-Moline Power Implement Co., 214 Minn. 564, 578-79, 9 N.W.2d 6, 13 (1943) (holding that an employee whose epilepsy contributed to his fall onto hazardous equipment at work was entitled to compensation).

For example, in Foley, we held that the employee’s injury arose out of her work because her exposure to hazardous conditions in her employer’s parking ramp led to her sexual assault and murder. Foley, 488 N.W.2d at 272. Similarly, in Hanson, we held that an employee’s injury arose out of his work because his employment exposed him to the hazard of a high-crime area at night, leading to his assault and murder. Hanson, 209 Minn. at 597-99, 297 N.W. at 20-21. Likewise, in Nelson, we held that an employee’s injury, caused when she was struck by a ball that a child on the playground had batted, arose out of her work because her employment as a teacher exposed her to the hazard of being hit by playground toys. Nelson, 249 Minn. at 54-56, 81 N.W.2d at 275-76. Dykhoff does not argue that her employment exposed her to any type of special hazard such as was at issue in Foley, Hanson and Nelson.

Dykhoff contends, instead, that she was injured while walking from one room to another at her workplace. The “arising out of’ requirement can be satisfied even when the workplace condition connected to the injury is not obviously hazardous. For example in Kirchner v. County of Anoka, 339 N.W.2d 908, 910 (Minn.1983), the employee was injured while walking down the stairs at work. Many workplaces have stairways and there is nothing inherently dangerous or risky about requiring employees to use them. But we recognized in Kirchner that if there is something about the stairway or other neutral condition that “increases the employee’s exposure to injury beyond that” the employee would face in his or her everyday non-work life, an injury causally connected to that condition could satisfy the “arising out of’ requirement. Kirchner, 339 N.W.2d at 911. There, we concluded that the employee’s injury arose out of his employment because he had to “negotiate the steps without the benefit of’ a handrail. Id. Without the protection of the handrail, the employee was at an increased risk of injury and we held that the “the requisite causal connection between the employment and the injury existed.” Id.

In this case, in contrast to Kirchner, Dykhoff did not prove that her workplace exposed her to a risk of injury that was increased over what she would face in her everyday life. Dykhoff argued that she fell because the floor on which she was walking was slippery. But the compensation judge found as a factual matter that there was nothing hazardous about the floor on which Dykhoff was walking at the time she fell. Indeed, it is undisputed that the floor Dykhoff crossed before falling was “very clean, dry and flat.” And the compensation judge did “not adopt[] the ‘slippery floor’ theory urged by [Dykhoff].”

The compensation judge rejected Dyk-hoffs “slippery floor” theory for several reasons, including the testimony of Xcel’s Facility Operations Manager regarding his inspection of the floor soon after the fall, the fact that Dykhoff walked across the floor without incident immediately prior to her fall, and the uncontroverted evidence that the floor was clean and dry. The compensation judge also found that the *828shoes Dykhoff chose to wear were an equally plausible explanation for Dykhoff s fall. In addition to the evidence specifically cited by the compensation judge, the record shows that the floor was cleaned nightly with industry-standard cleaning products and tests performed on the floor indicated that it met OSHA guidelines for slipperiness.2

Our review of the record confirms that the evidence supports the compensation judge’s finding that “[t]he preponderance of evidence fails to establish the floor where [Dykhoff] fell on June 20, 2011 was slippery.” This finding therefore is not clearly erroneous. See O’Rourke v. N. Star Chems. Inc., 281 N.W.2d 192, 194 (Minn.1979) (upholding compensation judge’s findings on “arising out of element,” noting that “[w]hether ... there was ... a causal relation between [the employee’s] employment and his death was a fact question”).

Without any proof that something about the floor increased her risk of injury, we hold that Dkyhoff did not meet her burden to prove that her injury arose out of her employment.3

B.

Notwithstanding the compensation judge’s finding that the floor was not slippery, Dykhoff argues that her injury is compensable because her “employment placed her in a particular place at a particular time exposing her to a neutral risk ... existing on [Xeel’s] premises.” Justice Page’s dissent also urges adoption of a positional risk test in this case.4 We have *829declined to “make the employer an insurer against all accidents that might befall an employe[e] in his employment.” Auman v. Breckenridge Tel. Co., 188 Minn. 256, 258, 246 N.W. 889, 890 (1933). Accordingly, we require more to satisfy the “arising out of’ requirement in section 176.021, subdivision 1, than simply an injury occurring at work. See Gibberd, 424 N.W.2d at 780 (noting that the “arising out of’ requirement “connote[s] a causal connection” and the “in the course of’ requirement “refers to the time, place, and circumstances of the incident causing the injury.”); see also Blanchard v. Koch Ref. Co., 282 N.W.2d 495, 496 (Minn.1979) (finding that employee’s heart attack while at work was not compensable because there was no proof of a causal connection between employment and the injury); Stibbs v. Nw. Airlines, Inc., 277 Minn. 248, 252, 152 N.W.2d 318, 321 (1967) (same). Dykhoffs argument collapses the “arising out of’ requirement into the “in the course of’ requirement. But we must give effect to both prongs of the statute. See Minn.Stat. § 645.17(2) (2012) (noting that “the legislature intends the entire statute to be effective”).5 Dykhoff also argues that we *830should find her injury compensable based on the analysis the WCCA used. The WCCA, relying on a balancing test first articulated in Bohlin v. St. Louis Cnty./Nopeming Nursing Home, 61 Minn. Workers’ Comp. Dec. 69 (WCCA 2000), aff'd without opinion, 621 N.W.2d 459 (Minn.2001), concluded that the increased risk test is not the exclusive test to be used in a case where the reason for the injury “is truly unexplained.” Dykhoff, 2012 WL 6592145, at *8-10. In Bohlin, the WCCA concluded that “[although the ‘arising out of and ‘in the course of requirements express two different concepts, in practice these requirements are not independent, but are elements of a single test of work-connection.” Bohlin, 61 Minn. Workers’ Comp. Dec. at 79 (citation omitted) (internal quotation marks omitted). Under the Bohlin test, a “minimum level of work-connection” can be established “if the ‘course’ test is weak but the ‘arising’ test is strong,” or, “if the ‘arising’ test is weak and the ‘course’ factor is strong.” Id. If, however, “both the ‘course’ and ‘arising’ elements are weak, the minimum connection to the employment will not be met.” Id.

We reject the Bohlin test because it fails to give effect to all parts of Minn.Stat. § 176.021, subd. 1. See Minn.Stat. §§ 645.16, 645.17 (2012). The plain language of section 176.021 requires the employee to demonstrate that an injury “arises out of and in the course of’ the employment.6 The work-connection test, in contrast, would allow a court to consider these statutory elements as alternatives— that is, to balance the two factors against each other in a fashion that could relieve the employee of the burden of proof on one element if there is strong evidence of the other element.

Indeed, as the WCCA ruled in this case, even if there are “deficiencies” in the employee’s proof of the “arising out of element,” the employee may still receive compensation. The workers’ compensation statute, however, requires that the employee bear the “burden of proof’ on both the “arising out of’ and the “in the course of’ elements and does not leave room for a test that relaxes that burden simply because the injury occurred during the work day or on the employer’s premise. See Gibberd, 424 N.W.2d at 784 (declining to adopt an expansive interpretation that would “be antithetical to [the] basic pur*831pose [of the workers’ compensation system] by converting [it] into a compulsory health and accident insurance scheme by which every employer would be made liable for all injuries sustained by employees from the time of leaving for, and returning home from, work”). Because the work-connection test renders either the “arising out of’ or the “in the course of’ element superfluous and a portion of the statute ineffective, we reject the Bohlin test.

In sum, the compensation judge found as a factual matter that Dykhoff did not prove that her employer, Xcel, exposed her to a condition that placed her at an increased risk of injury beyond what she would experience in her non-work life. The compensation judge’s findings are supported by the record. We therefore hold that Dykhoff did not meet her burden to prove that her injury arose out of her employment, as required in Minn.Stat. § 176.021, subd. 1. We reverse the decision of the Workers’ Compensation Court of Appeals and reinstate the decision of the compensation judge.

Reversed.