Kubis v. Community Memorial Hospital Ass'n

LILLEHAUG, Justice

(dissenting).

The opinion of the court does not give the Workers’ Compensation Court of Appeals the long-established deference accorded by our case law. If that deference were given, the employee would be entitled to workers’ compensation benefits based on our precedent directly on point, Kirchner v. County of Anoka, 339 N.W.2d 908 (Minn. 1983). Therefore, I respectfully dissent.

I.

The story of Kristel Kubis’s workplace injury is not complicated. Nurse Kubis was nearing the end of her shift on the second floor of the hospital. While “in report”— telling the .incoming nurses about developments that occurred during her shift— Kubis responded to a “code,” or medical emergency, on the ground floor. When the code was over, rather than taking the elevator as she usually did due to a history of knee injury, Kubis decided it would be faster to take the stairs. While hurrying up the stairs, she tripped and fell, injuring her shoulder and arm.

Kubis testified about her reasons for taking the stairs. She did so for two reasons: (1) she wanted to avoid overtime (which she said was discouraged); and (2) she wanted to finish her report to the incoming nurses.1 The compensation judge found that her testimony about wanting to avoid overtime was not credible. The compensation judge did not make any finding, one way or the other, on the credibility of her testimony that she hurried up the stairs to finish her report to the incoming nurses.

*264The parties agreed that Kubis’s injury arose “in the course of’ her employment. They disagreed about whether the injury was one “arising out of’ her employment. The compensation judge held that it was not, and thus denied benefits.

Kubis’s appeal was heard and decided by the WCCA sitting en banc. Unanimously, the WCCA ruled that Kubis’s injury arose out of her employment and, thus, she was entitled to benefits.

The court now reverses the WCCA, and reinstates the decision of the compensation judge, on the theory that the WCCA exceeded its power of review by improperly substituting its own view of the evidence. I disagree.

II.

In my view, the WCCA’s opinion is thorough, well-reasoned, and correct in all respects.

First, the WCCA accurately described its standard of review. Quoting Minn. Stat. § 176.421, subd. 1 (2016), the WCCA acknowledged that it may not set aside the compensation judge’s factual findings unless they are “clearly erroneous and unsupported by substantial evidence.” Kubis v. Cmty. Mem’l Hosp. Ass’n, No. WC15-5842, 2016 WL 845880, at *2 (Minn. WCCA Feb. 5, 2016). It also cited the applicable case from our court, Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59-60 (Minn. 1984), which recognized and elaborated on the special standard of review created by statute for workers’ compensation cases. Minnesota Statutes § 176.421, subd. 6(3) (2016), grants the WCCA the power to “substitute for the findings of fact made by the compensation judge findings based on the total evidence.”

Second, the WCCA correctly applied its standard of review. The WCCA did not set aside a single factual finding of the compensation judge. Indeed, the WCCA assumed what the compensation judge had found: that Kubis ran up the stairs.2 Kubis, 2016 WL 845830, at *1.

On the issue of why Kubis ran up the stairs, the WCCA specifically declined to disturb the compensation judge’s credibility determination that Kubis was not motivated by concern about overtime. Id. at *5. The WCCA correctly noted, however, that the compensation judge had made no finding on the credibility of Kubis’s testimony that she wanted to finish her report to the incoming nurses, which was plainly part of her work. Id. The evidence of that motivation, said the WCCA, was “uncontrovert-ed.” Id. As a result, the WCCA was right to conclude and hold: “Where an employee who normally avoids the stairs due to prior knee problems, takes them because she feels rushed to report to the next shift, and in the process runs up the stairs and falls, the arising out of element is established.” Id.

It is our court, not the WCCA, who misapplies the standard of review. As Hen-gem,uhle recognized, findings of the WCCA are entitled to deference. The WCCA “is a specialized agency of the executive branch, its members selected for their experience and expertise.” 358 N.W.2d at 61. When the WCCA makes findings, our review is “limited,” and we must review those findings in a “most favorable” light. Id. at 60-61.

Although the court acknowledges the “most favorable” standard, it does not ap*265ply it. Instead, substituting its own judgment for that of the WCCA, the court ignores evidence that Kubis rushed up the stairs to' complete the report. ‘Specifically, Kubis testified: “And it wasn’t just that I was afraid of the overtime. I wanted .to report.off to the next crew.” This alone is enough to prove that her injury arose out of her employment. Whether or not her employer pressured her to rush makes no difference. As the WCCA determined, record evidence that Kubis hurried up the stairs to complete her work establishes a solid causal connection between employment and injury.

Not following the principle of limited review of WCCA findings, the court flyspecks Kubis’s testimony to find a contradiction where none exists. Kubis testified that she “was probably hurrying” and that she was “not going to say [she] wasn’t hurrying, because the thought of being in trouble again was definitely there and [she] wanted to get up to report.” The court claims that these statements were “directly contradicted” by Kubis’s testimony that she “usually [is] not really in a hurry to get home” and “always [goes] in last to report,” that she received no warnings for working overtime, and that her overtime on the night of the injury was authorized. But Kubis’s explanation of what she “usually” did at the end of her shifts does not muddy her repeated testimony that,'on the night she was injured, she was hurrying to report to the next shift. In any event, if there was a contradiction, it was for the WCCA, not this court, to resolve.

In other.words, the WCCA accurately discerned that the evidence of Kubis hurrying to report to the next shift was un-controverted, and that the compensation judge had failed to make a finding on that evidence and its connection to her work. So the WCCA made its own finding. Our court should have shone a favorable light on it.- >

III.

‘ If the court had properly applied the Hengemuhle standard of review for WCCA findings, Kubis’s injury would have been covered and she would have received benefits. We have precedent directly on point: Kirchner v. County of Anoka, 339 N.W.2d 908 (Minn. 1983), another case of injury from a stairway fall; The facts are remarkably similar to this case.

Kirchner was a government employee. Id. at 910. His leg had given out on prior occasions. Id. One day, when leaving work, he came to the interior staircase of the Anoka County Courthouse. Id. The staircase handrail was being used by people ascending the stairs.'M Rather than wait until the handrail was available, Kirchner went to the other side of the staircase and walked down the stairs. Id. His leg gave out, he fell, and he was injured. Id.

We held that Kirchner’s injury arose out of his employment, based on the facts that he was leaving work, hé had a history of leg and back issues, the staircase was at his place of employment, he decided not to wait to use the handrail, he went down the stairs, and he fell and was injured. Id. at 911. That was enough to demonstrate the “requisite causal connection between the employment and the injury.” Id.

Kirchner applies here. Kubis was working. She had a history of knee injury. Rather, than wait to use the elevator, she took the stairs. She hurried up the stairs, tripped, fell, and was injured. That. is enough to demonstrate the requisite causal connection between her employment and her injury. Kirchner’s and Kubis’s situations are similar in all relevant respects.

The majority attempts to distinguish Kirchner from this case with the following *266quotation from Kirchner: “the staircase was located at Kirchner’s place of employment, and the injury occurred when the public use of the only handrail required Kirchner to negotiate the steps without benefit of that protection.” Id. This, the majority claims, shows that Kirchner’s holding hinged on a particular feature of the stairway: its single handrail. But this strained reading is undone by the same paragraph in Kirchner from which the quotation is drawn. That paragraph cites two cases holding that employees’ stairway injuries arose out of employment: Miller v. Goodhue-Rice-Wabasha Citizens Action Council, Inc., 293 Minn. 454, 197 N.W.2d 424 (1972), and Barlau v. Minneapolis-Moline Power Implement Co., 214 Minn. 564, 9 N.W.2d 6 (1943). In each case, an employee’s pre-existing injury (not any stairway feature) was the sole cause of a fall that resulted in injury. Miller, 197 N.W.2d at 424; Barlau, 9 N.W.2d at 7. Miller is especially relevant, as it concerned an employee whose pre-existing leg injury caused him to fall while ascending steps that presented no hazard. 197 N.W.2d at 424. Kirchner’s citation of Miller shows that Kubis did not need to prove that the stairway upon which she fell was especially hazardous. Nor should she need to prove that. The Workers’ Compensation Act expressly states that it shall be applied “without regard to the question of negligence.” Minn. Stat. § 176.021, subd. 1 (2016).

The compensation judge, too, did not apply Kirchner. Instead, he read Dykhoff v. Xcel Energy, 840 N.W.2d 821 (Minn. 2013), as establishing some sort of stricter “arising out of’ test. To the contrary: Dyk-hoff specifically cited Kirchner with approval, for the common-sense proposition that “[t]he ‘arising out of requirement can be satisfied even when the workplace condition connected to the injury is not obviously hazardous.” Dykhoff, 840 N.W.2d at 827. Neither Kirchner’s nor Kubis’s stairways were obviously hazardous.3

Here, as the WCCA found and held, a nurse with a history of knee injury hurried up her employer’s stairs while working, tripped, fell, and was injured. There is a sufficient causal connection between the employment and the injury.

IV.

This case—like Dykhoff, a 4-3 decision— is another example of the difficulties the workers’ compensation bar, compensation judges, the WCCA, and we are having interpreting and applying the “increased risk” test. There may be a better alternative: the positional-risk test.4

Under the positional-risk test, an employee satisfies both the “arising out of’ and “in the course of’ requirements without regard to risk if the injury would not have occurred but for the fact that the conditions and obligations of the employer placed the employee in the position where the employee was injured. See 1 Lex K. *267Larson, Larson’s Workers’ Compensation Law § 3.05 (Matthew Bender Rev. Ed. 2016). A majority of states confronted with the issue have adopted the positional-risk test. See id. § 7.04[l][a].

In his dissent in Dykhoff, Justice Page, joined by Justice Stras, made the case that Minnesota should adopt the positional-risk test. 840 N.W.2d at 834-35 (Page, J., dissenting). But the issue had not been fully briefed. See id. at 837 (Lillehaug, J., dissenting). When the issue is presented squarely and briefed, we should welcome the opportunity to consider whether Minnesota should join the states that have adopted the positional-risk test.

. Kubis made clear in her testimony that she had two reasons: "And it wasn’t just that I was afraid of the overtime. I wanted to report off to the next crew.” She told the group responding to the code: "I have to go. I want to get up and report.”

. See Comp. Judge Finding 5 ("At the completion of the code, the employee elected to go to the upper floor by running up the stairs because she believed it would be faster than waiting for an elevator. While running up the stairs, the employee fell and sustained an injury to her right shoulder.”).

. In any event, Dykhoff is readily distinguishable from this case. The employee in Dykhoff had no history of injury, walked normally on a normal floor, and yet fell and was injured. Essentially, Dykhoff was an unexplained injury case. Speaking for myself, and not for the justices joining me in this dissent, I remain of the view that, in Dykhoff, there was a sufficient causal connection between the employment and the injury. See Dykhoff, 840 N.W.2d at 837 (Lillehaug, J., dissenting) (joined by Stras, J.).

. Indeed, at the end of the memorandum attached to his Findings and Order, the compensation judge in this case noted: "Inasmuch as the employee was on the employer's premises and traveling to a location on these premises designated for her to log off from her employment shift, a positional risk standard might be satisfied.”