JAYNE TOURVILLE, Employee, v. HEALTHEAST CORPORATE SERVS., and BRAC f/k/a BERKLEY RISK ADM'RS CO., Employer-Insurer/Appellants, and ST. PAUL RADIOLOGY/MINNESOTA OPEN MRI, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
SEPTEMBER 30, 2002
ARISING OUT OF & IN THE COURSE OF. The compensation judge concluded that the employee=s activities increased the risk of injury to the employee and properly applied an Aincreased risk@ test. Substantial evidence supports the compensation judge=s determination that the employee proved by a preponderance of the evidence that her low back injury arose out of and in the course of her employment.
Determined by Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Kathleen Behounek.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal from the compensation judge=s finding that the employee=s injury on November 19, 1999, arose out of and in the course and scope of her employment with the self-insured employer. We affirm.
Ms. Jayne Tourville, the employee, worked for St. Joseph=s Hospital, the self-insured employer, between April 1996 and September 2000, working as a nurse and an admitting interviewer. She worked full-time, pre-registering surgical patients for the hospital, and, at times, working in other areas of the hospital, including the emergency room. The employee regularly worked for the employer on days she was not scheduled to work, typically Fridays. Her standard practice was to call or come into the hospital on her days off and request additional work hours from her supervisor, who generally approved the employee=s request for additional work. The employee=s supervisor testified that A[t]here was never a time when there weren=t hours available@ for the employee to work.
On Friday, November 19, 1999, the employee was not scheduled to work, but she reported to the admitting department at approximately 7:00 a.m., to ask her supervisor if extra help was needed that day. The supervisor was busy assisting a patient, and so she asked the employee to wait. The employee leaned against a counter, drinking a cup of coffee while waiting. The supervisor then asked the employee to go downstairs with her to check the schedule. As the employee straightened up from the counter and bent over to throw her coffee cup into a trash container, she Afelt and heard a crunch in her low back@ but did not notice immediate symptoms in her low back. The employee accompanied her supervisor who then checked the work schedule and determined that work was available that day for the employee.
The employee commenced work at 7:30 a.m. and worked until 3:30 p.m. In the course of her work day, the employee began to experience stiffness and swelling in her low back. She applied ice to her low back during her work day. Her symptoms worsened during the weekend; she began experiencing numbness in her right leg and foot. She sought medical treatment the following week with East Metro Family Practice, her family clinic, reporting symptoms of low back pain, right lower leg radiculopathy and right foot drop. An MRI scan conducted on November 26, 1999, indicated a disc extrusion from the L-3 or L-4 vertebral body with associated compression of the right L4 and L5 nerve roots. The employee was referred for a neurosurgical consultation with Dr. Mary Dunn on December 3, and on December 4, 1999, the employee underwent a hemilaminectormy at the right L4-5 level. Dr. Bailey, who performed the surgery, rendered a discharge diagnosis of a Afree fragment herniated disk.@ He restricted the employee entirely from work post-surgery, and released her to return to work with restrictions on January 17, 2000. The employee has received follow-up medical treatment and physical therapy post-surgery.
In a report dated August 14, 2001, Dr. Bailey stated that A[i]t would appear from reviewing Dr. Dunn=s notes that the incident at work was a substantial contributing factor in bringing about the resulting back pain and need for the surgery.@ In a report dated October 15, 2001, Dr. Anthony Ferrara stated that A[t]here is no question that the work incident caused the patient=s acute herniated disc.@
Prior to November 19, 1999, the employee had undergone medical treatment for her low back. In June 1992, she sustained a low back injury while working as a nurse at a nursing home, and underwent 6-8 weeks of physical therapy treatment. In December 1998, the employee received additional medical treatment after she strained her back while cleaning out a home filing cabinet. A CT scan performed on the employee=s lumbar spine in March 1999 indicated degenerative changes without evidence of definite abnormalities to explain the employee=s right lower extremity radiculopathy. At a physical examination in June 1999, the employee reported that mild tenderness in her lower lumbar spine but that her back was improving. The employee testified that she was asymptomatic between approximately March 1999 and her work injury on November 19, 1999. According to her testimony, and as substantiated by her medical records, her symptoms following her November 19, 1999, work injury differed from and were worse than her previous low back symptoms.
On November 8, 2000, the employee was examined by Dr. Daniel C. Randa, at the referral of the employer. Dr. Randa determined that the employee sustained a lumbar disc extrusion at the L4-5 level with L5 radiculopathy, and that this related to either a nonwork injury in December 1998 when the employee was cleaning a cabinet at home, or to the employee=s activities on November 19, 1999. He concluded that the employee Aeither extruded an L4-5 disc and/or aggravated a previous L4-5 disc extrusion secondary to her activities of November 19, 1999.@ At deposition, Dr. Randa testified that the employee=s Aherniation occurred in and around the time of November 19th, 1999, at which time at least the L5 radiculopathy first became apparent.@ Although Dr. Randa related the employee=s medical care and treatment, wage loss and restrictions to the incident on November 19, 1999, he opined that the employee=s activities were not Awork-related.@ He concluded that the employee had reached maximum medical improvement from her injury, and that she required no specific restrictions, nor further medical care, chiropractic care, physical therapy or neurodiagnostic imaging as a result of that injury.
The employer denied primary liability for the employee=s claimed injury. On August 1, 2000, the employee filed a claim petition, alleging entitlement to temporary total disability benefits between December 4, 1999, and January 17, 2000, along with payment for medical expenses. The employee filed an amended claim petition on October 26, 2001, to include a claim for permanency benefits based upon a rating of 10% permanent partial disability of the whole body. In its answer to the employee=s claim petition, the employer denied that the employee=s claimed injury arose out of and in the course of employment with the employer.
A formal hearing was held on this matter on October 30, 2001. In Findings and Order served and filed December 18, 2001, the compensation judge found that the employee sustained a low back injury on November 19, 1999, which arose out of and in the course and scope of the employee=s employment with the employer. The compensation judge found that the medical treatment incurred by the employee following that injury had been reasonable and necessary to cure and relieve the effects of the employee=s injury, and therefore awarded payment of those medical expenses. The compensation judge also awarded payment of benefits based upon 10% permanent partial disability of the whole body, and payment of temporary total disability benefits from December 4, 1999, through January 17, 2000. The self-insured employer appeals.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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 (1992). Substantial evidence supports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
The self-insured employer appeals from the compensation judge=s determination that the employee=s injury arose out of and in the course of the employee=s employment on November 19, 1999. The employer argues that the injury neither arose out of nor occurred in the course and scope of employment.
A personal injury is defined as an Ainjury arising out of and in the course of employment.@ Minn. Stat. ' 176.011, subd. 16. 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.@ The burden of proving that a personal injury arose out of the employment is on the employee. Minn. Stat. ' 176.021, subd. 1.
The compensation judge concluded that the employee=s injury arose out of her employment with the employer. In her memorandum, the compensation judge referred to the employee=s preexisting low back condition but also discussed the employee=s quiescent symptoms for approximately eight months pre-injury, her Asignificant low back symptoms@ after the November 19, 1999, incident and the herniated disc documented on the MRI scan of November 26, 1999. The compensation judge concluded that
The herniated disc suffered by the employee was the result of a specific incident on November19, 1999[,] . . .when the employee stood up and disposed of a coffee cup while following her supervisor to get a work assignment for the day. The incident occurred as a result of an obligation or incident of the employee=s employment with the employer, not as a result of a personal risk of the employee. Accordingly, the employee has met her burden of proving the causal connection between the incident causing the herniated disc and her employment with the employer.
The compensation judge could reasonably conclude that the employee=s employment increased the risk of injury to the employee, applying the increased risk test, in reaching her conclusion that the employee=s injury arose out of her employment with the employer.
The self-insured employer contends that the incident did not occur in the course and scope of the employment because the employee was not working at the time of the incident and had no obligation to be on the employer=s premises at the time. The compensation judge found this argument to be unpersuasive. She found that the employee=s injury occurred in the course and scope of her employment with the employer. In her memorandum, she thoroughly explained the work-related nature of the employee=s activities surrounding the incident, stating as follows:
In this case, the employee was on the employer=s premises at the time of her injury. The purpose for the employee=s presence on the employer=s premises was to determine whether the employer could provide her with work that day. The employee had established a routine practice of reporting to the employer=s premises on her days off and requesting work. The employer generally provided work to the employee. At the time of her injury, the employee was waiting for her supervisor to finish a task before the supervisor could determine whether work was available. The employer had work available for the employee, and the employee worked that day.
Although the injury did not occur within the employee=s actual hours of work on November 19, 1999, the employee was engaging in an activity reasonably incidental to her employment (waiting for her supervisor to assign her work). The employee=s presence on the employer=s premises was reasonably related to the employment relationship (to determine whether work was available for her that day) and was not wholly personal to the employee. Based on the facts and law, the compensation judge concludes that the employee[=s] injury arose in the course and scope of her employment with the employer.
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 previously has adopted Larson=s balancing test which requires that in any given case, a certain minimum level of work-connection must be established. Under that analysis, if the Acourse@ test is weak but the Aarising@ test is strong, the necessary minimum quantum of work-connection will be met, as it is also if the Aarising@ test is weak and the Acourse@ factor is strong. But if both the Acourse@ and Aarising@ elements are weak, the minimum connection to the employment will not be met. Larson, ' 29.01. See e.g. 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); and Otto v. Midwest of Cannon Falls, 59 W.C.D. 25 (W.C.C.A. 1999). 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.
The medical evidence of record supports the employee=s claim that the November 19, 1999, incident resulted in a low back injury. In addition, the evidence of record supports the compensation judge=s conclusion that the injury occurred while the employee was engaged in activities incidental to her employment. In this case, therefore, the Acourse@ test is strong. The compensation judge also found that the Aarising out of@ test is strong, and Larson=s balancing test applies. Larson, ' 29.01. The employee had established a routine practice of reporting to the employer=s premises on her days off and requesting work, and at the time of her injury, the employee was waiting for her supervisor to finish a task before the supervisor could determine whether work was available. The employer had work available for the employee, and the employee worked that day. The employee was engaging in an activity reasonably incidental to her employment, and her presence was reasonably related to her employment relationship with the employer.
Substantial evidence of record supports the compensation judge=s determination that the employee=s injury arose out of and in the course of employment with the employer. Whether an injury was one arising out of and in the course of employment is a fact question for the compensation judge. We conclude that the evidence of record is sufficient to support the compensation judge=s decision and we therefore affirm.
 See A. Larson, Workmen=s Compensation for Occupational Injuries & Death, ' 29.00 (1993).