Lead Opinion
OPINION
At the end of her shift, respondent Kris-tel Kubis fell and injured her shoulder while rushing up a staircase at the workplace of her employer, Community Memorial Hospital Association (CMH). Kubis filed a claim for workers’ compensation benefits. The compensation judge held a hearing, found that Kubis failed to prove by a preponderance of the evidence that her injury arose out of her employment, and denied the claim. Kubis appealed to the Workers’ Compensation Court of Appeals (WCCA), which reversed the compensation judge’s decision. Because we conclude that the WCCA impermissibly substituted its own view of the evidence for that of the compensation judge, we reversе the WCCA’s decision and reinstate the compensation judge’s decision.
FACTS
Kubis, a 54-year-old registered nurse, began working at CMH in 2006.
On June 17, 2014, Kubis worked her scheduled shift from 3:00 p.m. to 11:30 p.m. This was the fourth day in a row that
After responding to the mock code and attending the debriefing that followed, Ku-bis needed to return to the second floor to complete her report to the next shift and clock out. Kubis testified that she wanted to go upstairs because she was “afraid of the overtime” and she “wanted to report off to the next crew.” Kubis looked'across the hallway toward the elevators and saw that the doors to one of the three elevators were closing. These elevators are open to the public. Kubis decided to take the stairs rather than call for a different elevator because she believed that using the stairs was faster than waiting for another elevator. The stairs at CMH also are open to the public. Kubis generally did not take the stairs at work because she feared tripping. As Kubis hurried up the stairs, she tripped and fell. There is a handrail on ea,ch side of the stairwell, the stairwell itself was not defective in any way, and there was nothing on any of the stairs that could have caused the fall.
Before her fall, there had been general discussions at CMH about limiting overtime, specifically, “unnecessary overtime.” These concerns related to employees completing their work duties, but then failing to clock out immеdiately and staying past the end of their shift. There was no written policy at CMH regarding limiting overtime. Kubis’s direct supervisor testified at the hearing before the compensation judge that “unnecessary overtime” does not include responding to a code or completing the report to the next shift after the employee’s assigned shift has ended. Employees also were instructed not to rush or hurry’their job duties to avoid overtime because CMH “deal[s] with people’s lives.”
Also before her fall, Kubis and her direct supervisor discussed performance issues Kubis was having at work. As a result of these issues, the direct supervisor advised Kubis “to stay and complete her documentation, thus authorizing overtime.” The direct supervisor never told Kubis that the performance issues related to her working overtime or that- she was being disciplined for working overtime. In fact, Kubis had worked overtime in 10 of the 13 pay periods preceding her fall. Kubis often worked overtime because she “always [went] in to report last.” Even though she always reported last, Kubis testified that she was “afraid” of working overtime.
Kubis went to the emergency room the day after she fell. Almost one month later, her doctor placed her on a work restriction, prohibiting her from using her right arm. Because CMH was unable to accommodate this restriction, she has never returned to work at CMH. Her last day of employment at CMH was July 15, 2014. Kubis had shoulder surgery оn October 20, 2014, but she continues to experience pain in her shoulder and down her right arm.
Kubis filed a claim petition for workers’ compensation benefits, and a compensation judge held a hearing on the claim. Before the hearing, the parties stipulated that all of the medical expenses at issue were related to her right shoulder injury, were reasonable and necessary, and were causally related to Kubis’s fall. The parties also
Kubis was the only witness to testify in support of her claim at the hearing. Shelly Demers, director of staff education and infection prevention, and Sarah Motschen-bacher, director of inpatient services, testified on behalf of CMH. Additionally, CMH submitted an expert report from an architect and photographs of the lobby and stairwell at CMH. The report and photographs demonstrate that there was nothing hazardous about the staircase on which Kubis fell.
Following the hearing, the compensation judge filed findings of fact and an order that denied and dismissed Kubis’s claim. The compensation judge acknowledged that, as Kubis testified, “she sometimes ends up on overtime when she is engaged in reporting information to members of the oncoming shift, as she was doing on the night of the injury,” but found that Kubis “has never received a written warning for working overtime in those circumstances.” The compensation judge also noted Kubis’s assertion that “her right shoulder injury arose out of her employment because she was rushing up the stairs to log off as quickly as possible to comply with management’s directive.” Most important to this appeal, the compensation judge found that her “claim that she was rushing up the stairs because she felt pressured to do so because of the hospital policy encouraging employee’s [sic] to log out on a timely basis at the end of their shifts is not credible.” (Emрhasis added.) Accordingly, because Kubis failed to establish by a preponderance of the evidence that her injury was caused by an increased risk that arose out of her employment, the compensation judge determined that her injuries were not compensable.
The WCCA reversed. Kubis v. Cmty. Mem’l Hosp. Ass’n, No. WC15-5842,
The WCCA did not disturb the compensation judge’s finding that Kubis’s concerns over accruing overtime lacked credibility. Id. But, the WCCA determined that Kubis’s claimed second motivation, the need to “promptly report to the oncoming shift,” was “not addressed by the employer and insurer or the compensation judge.” Id. The WCCA concluded that Kubis “was rushed to report to the next shift” and held that, “[wjhere an employee who normally avoids the stairs due to prior knee problems, takes them because she feels rushed to report to the next shift, аnd in the process runs up the stairs and falls, the arising out of element is established.”
ANALYSIS
On appeal, CMH argues that the WCCA erred by failing to adhere to the appropriate standard of review; that the WCCA erred as a matter of law in how it applied the increased-risk test set forth in Dykhoff v. Xcel Energy,
The Workers’ Compensation Act 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 (2016). It is the employee’s burden to demonstrate by a preponderance of the evidence that the injury arises out of and in the course of employment. Id., subds. 1-1a (2016); Dykhoff,
Our review of decisions by the WCCA is limited. Specifically, when we review a decision by the WCCA, we “will intrude only if, viewing the facts in the light most favorable to the findings, it appears that the findings are manifestly contrary to the evidence or that it is clear reasоnable minds would adopt a contrary conclusion.” Hengemuhle v. Long Prairie
The procedural, and ultimately dispositive, question presented by this appeal is whether the WCCA adhered to the appropriate standard of review when reviewing the compensation judge’s findings on the “arising.out of’ requirement. To dеtermine whether the WCCA was correct in substituting its own view of the evidence in place of the compensation judge’s findings, we analyze the standard of review that binds the WCCA. Before the 1983 amendments to the Workers’ Compensation Act, “the WCCA could, in essence, ignore th[e] findings and proceed to find the facts anew by giving little or no deference to the findings of the referees or compensation judges.” Gibberd,
the [WCCA] can no longer disregard the compensation judge’s findings and order. The [WCCA], instead, determines if the findings and order are supported by substantial evidence in vieiv of the entire record as submitted. If the findings and order are so supported, the [WCCA] affirms. If not, then, in that event only, the [WCCA] may substitute its own findings, or it may remand to the compensation judge for a rehearing.
Hengemuhle,
Substantial evidence supports the findings when, in the context of the entire record, the findings “are supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle,
Here, the compensation judge determined that the workplace did not - expose Kubis to an increased risk of injury simply because she was ascending the stairs. Indeed, Kubis acknowledged that the cause of her fall was not due to a defect or other
The WCCA disagreed. In doing so, the WCCA divided Kubis’s reason for “rushing” or “hurrying” up the stairs,into two separate motivations: (1) her concern about incurring overtime, and (2) her “need to promptly report to the oncoming shift.” After a review of the entire record, we conclude that the WCCA’s “finding” about Kubis’s need to “promptly report” to the next shift is manifestly contrary to the evidence for a simple reason: Kubis offered no evidence that she was under any pressure to hurry or to rush in order to finish her. report to. the oncoming shift (apart from her. general concern about overtime, an explanation that the compensation judge rejected).
To the contrary, the evidence was un-controverted that Kubis- was under no pressure, had no need to hurry, and was not required to rush to finish her report. Although Kubis testified that she “was probably hurrying,” she also testified that she was “not going to say that [she] wasn’t hurrying, because the thought of being in trouble again was there and [she] wanted to get up to report.” Then Kubis directly contradicted her own testimony, that she was in a hurry to report by stating that 1) she “usually [is] not really in a hurry to
In short, even if the WCCA correctly split Kubis’s reason for “hurrying” into two distinct “motivations,” no credible evidence in the record supports the notion that she was pressured to “rush” to report to the next shift. The dissent disagrees and claims that there is evidence that Kubis was hurrying to complete the report. To the contrary, there is ample evidence in the record, consistent with the compensation judge’s findings, that contradicts this alleged motivation to rush to report, including: Kubis worked overtime in 10 out of 13 two-week pay periods before her fall; Kubis had already worked 15 minutes of overtime and was in report by the time the code was called at 11:45 p.m.; although her supervisor discussed other performance issues with Kubis, Kubis was never warned against working overtime; her supervisor approved the overtime to allow Kubis to respond to the code that night; her supervisor encouraged Kubis to work overtime when it was nеcessary to more thoroughly complete reporting; Kubis “always” went in to report last; and her supervisor testified that employees are not to rush or hurry their job duties to avoid working overtime. It should be apparent that there was no specific finding about Kubis’s need to “rush” to complete her “report” because Kubis offered no evidence—apart from her claim that she was worried about incurring unauthorized overtime—that she was under any pressure to complete her report. Thus, although the WCCA may have believed that there were two distinct motivations for hurrying, the compensation judge correctly recognized that the only uncon-tradicted evidence in the recоrd was that Kubis was concerned about incurring overtime, an explanation that the compensation judge rejected. There was no need to make additional findings about Kubis’s reporting obligations because the claim of “rushing” to complete the report simply lacked credible support in the record.
Even accepting the WCCA’s decision to artificially divide Kubis’s explanation for why she needed to rush into separate components, the WCCA exceeded its standard of review, particularly because the compensation judge did not find the testimony offered by Kubis regarding her concerns about overtime to be credible. Because we hold that the WCCA clearly and manifestly erred by rejecting the findings of the compensation judge, we need not address the second step from Hengemuhle, analyzing whether the findings of the WCCA should be affirmed.
CONCLUSION
We reverse the decision of the Workers’ Compensation Court of Appeals and reinstate the decision of the compensation judge.
Reversed.
DISSENT
Notes
. Before working at CMH, Kubis was employed outside the nursing industry from 1989 to 2003. During this time, Kubis suffered a left knee injury, which required surgery. Following this procedure, Kubis elected to go to nursing school.
. Employees are not notified whether the code is mock or real when it is called. If a CMH nurse is in the hospital when a code is called, the nurse is expected to respond.
. Kubis's claim was for temporary partial benefits because she provided care for her brother and received payments from HealthS-tar for that cаre. Her stipulated weekly wage included wages from CMH and HealthStar.
. For decades, we have held that the "arising out of” and the “in the course of” requirements are two distinct requirements on which the employee bears the burden of proof. Dykhoff,
Since the inception of the workers’ compensation law, courts have repeatedly experienced difficulty when attempting to ascertain the scope of the two phrases, "arising out of" and “in the course of.” We have recognized that no one comprehensive definition can be fashioned to fit all cases and that each case must to a great extent "stand on its facts,” but we have likewise recognized thаt a causal connection ... must exist between the injury and the employment.
. Thus, this case differs from Kirchner v. County of Anoka, in which we held that an injury caused by a fall on a stairсase while leaving work arose out of employment.
Here, it is undisputed that the stairwell at CMH was equipped with handrails on both sides of the stairwell, neither of which were being used by others. Kubis also conceded that the condition of the stairs was not the cause of her injury. Accordingly, the.requisite causal connection that was present in Kirchner is unmistakably absent here. Instead, this case is similar to Arrowhead Senior Living Community v. Kainz,
. The dissent also focuses on the absence of a finding on the credibility of testimony that Kubis was doing her job when she was injured, stating 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,” But, contrary to the dissent's assertion, to the extent that Kubis’s claim rests on no more than her obligation to do her job by reporting to the next shift, this theory of "arising out of” is akin to the positional-risk theory that we rejected in Dykhoff because it impermissibly collapses the separate "arising out of” and "in the course of” requirements into a single test that asks only whether the employee was working at the timе of the injury. See Dykhoff,
Dissenting Opinion
(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,
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 tаke 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.
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 еvidence.” Kubis v. Cmty. Mem’l Hosp. Ass’n, No. WC15-5842,
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.
On the issue of why Kubis ran up the stairs, the WCCA specifically declined to disturb the compensation judge’s credibility dеtermination 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 аre entitled to deference. The WCCA “is a specialized agency of the executive branch, its members selected for their experience and expertise.”
Although the court acknowledges the “most favorable” standard, it does not ap
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 hеr 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 prеcedent directly on point: Kirchner v. County of Anoka,
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
The compensation judge, too, did not apply Kirchner. Instead, he read Dykhoff v. Xcel Energy,
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.
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.
In his dissent in Dykhoff, Justice Page, joined by Justiсe Stras, made the case that Minnesota should adopt 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,
. 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.”
Dissenting Opinion
(dissenting).
I join in the dissent of Justice Lillehaug.
Dissenting Opinion
(dissenting).
I join in the dissent of Justice Lillehaug.