MARY JO OYEN, Employee, v. AFFILIATED COMMUNITY MEDICAL CTRS. and EBI COS. n/k/a ROYAL & SUN ALLIANCE, Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
JULY 10, 2002
ARISING OUT OF & IN THE COURSE OF. Substantial evidence supports the compensation judge=s finding that the employee=s foot injury arose out of and in the course of her employment where the employee was injured on the employer=s premises while performing work activities.
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including testimony of the employee, a medical doctor, supports the compensation judge=s finding that the employee was temporarily totally disabled from July 1, 1998, through August 16, 1998.
Determined by Rykken, J., Johnson, C.J., and Pederson, J.
Compensation Judge: Ronald E. Erickson.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal the compensation judge=s findings that the employee=s injury arose out of and in the course of her employment and that the employee was temporarily and totally disabled from July 1, 1998, through August 16, 1998. We affirm.
In August 1997, Dr. Mary Jo Oyen, the employee, began working as an ophthalmologist at Affiliated Community Medical Centers, the employer, which was insured for workers= compensation liability by EBI Companies, the insurer (now known as Royal and Sunalliance Insurance Company). On April 20, 1998, the employee worked at the employer=s outreach clinic in Granite Falls, Minnesota, and returned after clinic hours to the employer=s Willmar premises in order to return equipment and to complete chart notes and paperwork. While she was there, the employee=s husband dropped off their eight-year-old daughter in order for the employee to examine her eyes, since she was having difficulty seeing the blackboard at school. The employee administered eye drops to her daughter to dilate her eyes before examination, and told her daughter to play in the waiting room while waiting for the drops to take effect. The employee returned to her paper work until about a half an hour later, when she noticed that her daughter was not in the waiting room. The employee began looking for her throughout the clinic. The employee checked down the hall by some vending machines, and asked co-workers to assist her. She looked further down the hall and entered an unmarked door which entered into a darkened furnace room. She could not find a light switch and thought she heard a muffled voice coming from the room, so she stepped into the room and fell approximately 14 inches off a step. The employee=s right foot and leg were extended; she landed on her toes, dorsiflexing quickly, and also fell, landing on her medial instep. After about 20 minutes, the employee=s daughter was discovered by another employee of the clinic at a play area near the clinic.
The employee was treated at the employer=s Urgent Care Facility for pain and swelling of the right foot. A non-weightbearing x-ray indicated a questionable avulsion fracture, but a follow-up x-ray on May 18, 1998, was interpreted as negative for right foot fractures. Although she continued to work during the following days, the employee used crutches and continued to have problems with her foot and with working. The employee also experienced some depression because of the injury. The employer terminated the employee=s employment on May 13, 1998. The employee received wage continuation payments through June 30, 1998, and was out of the country on a medical mission from May 23 through June 7, 1998. The employee continued to have problems with her foot. Another x-ray on June 11, 1998, indicated a fracture at the metatarsal cuniform joint, and her condition was diagnosed as a Lisfranc=s dislocation. The employee was treated with a cast and a CAM walker, which she used for approximately two months. The employee found alternative employment as an ophthalmologist starting August 17, 1998.
By claim petition, the employee claimed entitlement to permanent partial disability benefits, temporary total disability benefits, and medical expenses. The employer and insurer objected, claiming that the employee=s injury did not arise out of and in the course of her employment. A hearing was held on August 10, 2001. The compensation judge found that the employee=s right foot injury on April 20, 1998, arose out of and in the course of her employment, and awarded temporary total disability from July 1, 1998, through August 16, 1998, benefits based on five percent permanent partial disability of the body as a whole, and medical expenses. The employer appeals the finding that the injury arose out of and in the course of employment and the award of temporary total disability benefits.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1. Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Id.
Arising Out of and In the Course of Employment
The employer and insurer argue that the compensation judge erred by finding that the employee=s right foot injury on April 20, 1998, arose out of and in the course of her employment. Employers are liable to pay workers= compensation benefits for an employee=s personal injuries arising out of and in the course of employment. Minn. Stat. '' 176.021, subd. 1, 176.011, subd. 16; MacNamara v. Jennie H. Boyd Trust, 287 Minn. 163, 177 N.W.2d 398, 25 W.C.D. 132 (1970). "Arising out of" refers to the causal connection between the employment and the injury, and "in the course of" refers to the time, place and circumstances of the injury. Swenson v. Zacher, 264 Minn. 203, 207, 118 N.W.2d 786, 789, 22 W.C.D. 342, 347 (1962). For an injury to Aarise out of@ the employment, there must be a causal connection between the employment and the injury. Lange v. Minneapolis-St. Paul Metro. Airport Comm=n, 257 Minn. 54, 99 N.W.2d 915, 21 W.C.D. 61 (1959). The requisite causal connection Aexists if the employment, by reason of its nature, obligation or incidence may reasonably be found to be the source of the injury-producing hazard.@ Nelson v. City of St. Paul, 249 Minn. 53, 55, 81 N.W.2d, 272, 275, 19 W.C.D. 120, 123 (1957). In Kirchner v. County of Anoka, 339 N.W.2d 908, 911, 36 W.C.D. 335, 337 (Minn. 1983), the supreme court stated the Aarising out of requirement requires some showing of a hazard that increases the employee=s exposure to injury beyond that of the general public.@ Each case which addresses whether an injury arose out of and in the course of employment stands on its own facts. Gibberd by Gibberd v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988); Novack v. Montgomery Ward & Co., 158 Minn. 495, 498, 198 N.W. 290, 292, 2 W.C.D. 156, 159 (1924). The burden of proving that a personal injury arose out of the employment is on the employee. Minn. Stat. ' 176.021, subd. 1.
The Aarising out of@ and Ain the course of@ requirements of Minn. Stat. ' 176.011, subd. 16, are not independent, but are elements of a single test of work-connection. United Fire & Casualty Co. v. Maw, 510 N.W.2d 241 (Minn. Ct. App. 1994). This court has adopted Larson=s balancing test. See Schreier v. Bruning Constr., 61 W.C.D. 507 (W.C.C.A. 2001); Cauwels v. Schotts, Inc., 61 W.C.D. 285 (W.C.C.A. 2001); Bohlin v. St. Louis County, 61 W.C.D. 69 (W.C.C.A. 2000); Otto v. Midwest of Cannon Falls, 59 W.C.D. 25 (W.C.C.A. 1999). A minimum level of work-connection must be proven. Where the Acourse@ test is weak but the Aarising@ test is strong, the necessary minimum quantum of work-connection may be met. Similarly, where the Acourse@ test is strong but the Aarising@ test is weak, the work-connection may also be met. Where both tests are weak, however, insufficient connection to the employment may exist. As this court stated in Bohlin, A[w]hen a line is drawn, there are always cases very close to each side of the line. No absolute rule can be derived, since there are too many factual variables that could affect the result.@ Bohlin, 61 W.C.D. at 81.
In this case, the employee was at her place of employment after clinic hours in order to finish paperwork. As a professional, the employee was expected to finish all her paperwork in a timely manner, within 24 hours of clinic appointments. The employee=s injury occurred during her work hours while engaged in activities incidental to her employment. The Acourse@ test is, therefore, strong. Since the employee=s injury occurred while she was searching for her daughter, even though her daughter was a patient at the time, the Aarising@ test is not as strong. However, whether an injury was one arising out of and in the course of employment is a fact question for the compensation judge. The compensation judge noted that the injury occurred on the employer=s premises while the employee was doing chart work and paper work required as a part of her employment, and while administering medical treatment to her daughter, at that time a patient. In this case, we conclude that the evidence is sufficient to support the compensation judge=s conclusions concerning the causal relationship between the employee=s work and her injury, and we therefore affirm.
The employer and insurer also argue that the employee=s activities in treating her daughter without following usual office procedures in making an appointment and billing practices was a deviation from her employment from the time her daughter was dropped off until the time she injured herself. The compensation judge found that the clinic policy in place at the time of the hearing, to submit charges for treatment of family members through insurance channels, was not in place at the time of the injury or was not followed at the time of the injury. The employer and insurer argue that this finding is not supported by substantial evidence. While the employer=s administrator and medical director testified regarding the employer=s expectation that a family member=s treatment would be submitted to insurance, there was evidence that this policy was not explained to the employee. The employee testified that she was not aware of any specific procedure to follow when treating a family member. The compensation judge noted that another doctor had testified by deposition that he had treated his own children. That doctor was not asked how he had billed these procedures. Substantial evidence supports the compensation judge=s finding regarding the billing policy. Moreover, the employee had continued to perform work activities for the employer by completing her paperwork while waiting for her daughter=s eyes to dilate. The employee=s treatment of her daughter while performing other work activities was not a deviation.
The employer and insurer also argue that the employee=s motive for frantically searching the clinic was based on her status as a mother, not as a doctor and employee, and therefore the injury did not arise out of or in the course of her employment. We disagree. The employee was at her place of employment, performing work activities, and was not there for wholly personal reasons. While the employee may have been more upset than usual when she opened an unmarked, unlocked door to the furnace room on the employer=s premises, entered into the darkened room, and stepped off a 14-inch drop off, the fact that the employee was upset for a personal reason does not take the employee out of the course and scope of her employment. The employee=s search of the employer=s premises for her daughter was for both work-related and personal reasons, but the employee was on the premises for work purposes. The compensation judge=s finding that, under these circumstances, the employee=s injury during a 20-minute search for her daughter on the employer=s premises arose out of the course and scope of her employment is supported by substantial evidence, and we affirm.
Temporary Total Disability
The employer and insurer argue that the compensation judge=s finding that the employee was temporarily and totally disabled from July 1, 1998, through August 16, 1998, was not supported by substantial evidence. The employee=s new job was apparently available at the time she applied in May 1998. The employee was unavailable to work from May 23, 1998 through June 7, 1998, when she was out of the country for a medical mission. At that time, the employee had not yet been accurately diagnosed and treated for her condition. The employer paid the employee through June 30, 1998. The employee was awarded temporary total disability benefits from July 1, 1998, through August 16, 1998. During this time, the employee was accurately diagnosed and was required to wear a cast and later a CAM walker.
The employee testified that she did not think she could do her regular job as a surgeon with her new employer while wearing the walker. The employer argues that the employee did not contact her new employer to determine if they had work available for her that could accommodate her abilities while in the walker. The compensation judge relied upon the employee=s assessment of herself as a medical doctor that she could not work during this time. The employer and insurer presented no medical evidence to the contrary. The compensation judge may rely upon the employee=s testimony to support a finding that the work injury has impaired the employee=s ability to work. See Brening v. Roto-Press, Inc., 306 Minn. 562, 237 N.W.2d 383, 28 W.C.D. 225 (Minn. 1975) (the employee is most familiar with the limitations from the injury, and the employee=s testimony may be sufficient to support a finding of total disability); see also Nelson v. Northern Milk Prods., 59 W.C.D. 518, 532 (W.C.C.A. 1998) (an employee=s testimony constitutes substantial evidence to support finding that the employee has a disability which affects his ability to work). Further, assessment of a witness's credibility is the unique function of the trier of fact. Brennan v. Brennan, 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978). It is not the role of this court to choose from among possible inferences different from those drawn by the compensation judge, only to determine whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate. Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). Substantial evidence supports the compensation judge=s finding that the employee was temporarily totally disabled from July 1, 1998, through August 16, 1998, and we affirm.
 See A. Larson, Workmen=s Compensation for Occupational Injuries & Death, ' 29.00 (1993).