MICHELLE S. THURINGER, Employee, v. VIRGINIA REG=L MED. CTR., SELF-INSURED, adm=d by BERKLEY RISK ADM=RS CO., Employer/Appellant, and BLUE CROSS/BLUE SHIELD OF MINN. AND BLUEPLUS, MN DEP=T OF EMPLOYMENT AND ECON. DEV., and DULUTH BLDG. TRADES HEALTH & WELFARE FUND, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 7, 2004
EVIDENCE - CREDIBILITY; CAUSATION - SUBSTANTIAL EVIDENCE. The compensation judge=s determination finding the employee=s testimony credible was not clearly erroneous. Based, in part, on the employee=s testimony, substantial evidence supports the compensation judge=s finding the employee=s injury was caused by her crutch slipping on a piece of metal on the floor at work.
ARISING OUT OF & IN THE COURSE OF. The compensation judge did not err in finding the employee=s injury arose out of her employment where the injury-producing hazard, a small piece of metal on the floor, increased the risk of harm to this employee who was walking on crutches, and the source of the harm was a hallway floor that was part of the work environment.
Determined by: Johnson, C.J., Wilson, J. and Pederson, J.
Compensation Judge: Danny P. Kelly
Attorneys: Mark A. Kleinschmidt and Brad R. Kolling, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Appellant. Thomas R. Longfellow, Longfellow Law Firm, St. Paul, MN, for the Respondent.
THOMAS L. JOHNSON, Judge
The self-insured employer appeals the compensation judge=s finding that the employee=s injury arose out of her employment. We affirm.
On July 25, 2002, Michelle S. Thuringer, the employee, worked for Virginia Regional Medical Center, the employer, as the administrator of the long-term care unit. On that date, the employer was self-insured for workers= compensation liability with claims administered by Berkley Risk Administrators Company.
On July 25, 2002, the employee attended a meeting at 11:00 a.m. and then had lunch in the hospital cafeteria with some co-workers. The employee was walking on crutches wearing a walking boot on her left foot because of a non-work related left foot bone fracture. As she was exiting the cafeteria and entering a hallway, the employee testified her right crutch slid across the floor toward the wall and she fell. She landed on her right knee and then fell forward onto the left side of her chest and face. The employee testified that her crutch hit something on the floor causing it to slide. As she was lying on the floor, the employee found a small piece of metal on the hallway floor off to her right, in the direction of her right crutch. The employee was then helped up by several other employees.
X-rays of the employee=s chest and ribs taken at the employer=s premises on July 25, 2002, were normal. That same day, the employee also saw her family physician, Dr. Kassamali Jamal, to whom she gave a history of slipping on a piece of metal at work. The doctor diagnosed a chest injury and prescribed a wheelchair. On August 8, 2002, the employee saw Dr. Patrick Hall complaining of right knee pain since her fall at work. In April 2003, the employee underwent arthroscopic surgery on her right knee.
At the end of the work day on July 25, 2002, the employee met with Jim Skipper, the director of support services for the employer. Mr. Skipper=s responsibilities included maintenance of the facility and he was the safety officer. The employee gave Mr. Skipper the piece of metal she found on the floor after her fall. Mr. Skipper then went to the area where the employee fell. The floor in that area was a vinyl tile floor covered with a slip-resistant wax. Mr. Skipper testified that at the site of the employee=s fall, he noted three skid marks approximately three inches in length which radiated to the right and down toward the four o=clock position on a clock. That is, the skid marks pointed toward where the employee=s right foot would have been after her fall. Based upon the description of the fall given to him by the employee, Mr. Skipper testified he would have expected the skid marks to radiate up and to the right at approximately the one o=clock position.
The employee did not return to the employer following her injury. She was taken off work by her doctor on July 25, 2002, and was terminated by the employer on August 12, 2002.
The employee filed a claim petition seeking benefits due to a personal injury. The self-insured employer denied the employee sustained a personal injury arising out of her employment. In a Findings and Order, filed March 22, 2004, the compensation judge found the employee=s crutch slipped on a piece of metal on the hallway floor causing the employee to fall. The compensation judge concluded the employee=s injury arose out of her employment and awarded workers= compensation benefits. The self-insured employer appeals.
1. Arising out of the employment
The compensation judge concluded the cause of the employee=s injury was that she placed her crutch on the piece of metal causing the crutch to slide which resulted in a fall. This conclusion, the appellant contends, is belied by the physical evidence found by Mr. Skipper. At the site of the fall, Mr. Skipper noted three skid marks, approximately three inches in length which radiated to the right and down. Had the accident happened in the manner described by the employee, the appellant argues, there would have been one skid mark not three. Further, the skid mark should have been up and to the right in the one o=clock position rather than down and to the right in the four o=clock position. Since the skid marks were down and to the right, the metal piece should have been by the employee=s feet, not near her head. Finally, Mr. Skipper testified that the crutches used by the employee had rubber tips approximately two inches in diameter that should have been able to absorb an object such as the teardrop shaped metal piece and still keep a good percentage of the rubber tip on the floor to avoid a slip and fall. Accordingly, the appellant contends the compensation judge=s decision is unsupported by substantial evidence and must be reversed.
The appellant further contends that because substantial evidence does not support the employee=s explanation as to the cause of her fall, her fall was Aidiopathic@ or of unknown cause. The appellant asserts that injuries sustained by striking flat, normal floors are not compensable. See, e.g., Koenig v. North Shore Landing, 54 W.C.D. 86 (W.C.C.A. 1996). Accordingly, the appellant argues the employee=s fall does not meet the Aarising out of@ test of Minn. Stat. ' 176.011, subd. 16, and is not compensable.
Finally, the appellant argues that even if the employee=s crutch slipped on a piece of metal, the employee=s injury did not arise out of her employment. The appellants argue the presence of a small piece of metal on the floor was not a risk distinctly associated with the employment but is a risk to which the general public might be subjected in any location. Accordingly, the appellants argue, the compensation judge=s decision must be reversed. We are not persuaded.
A personal injury is defined as an Ainjury arising out of and in the course of employment.@ Minn. Stat. ' 176.011, subd. 16. The Aarising out of@ requirement is a causation test although Anot necessarily in the proximate cause sense.@ Gibberd v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988). For an injury to arise 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, obligations or incidents 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). The burden of proving that a personal injury arose out of the employment is on the employee. Minn. Stat. ' 176.021, subd. 1. The issue on appeal is whether the employee sustained that burden.
The primary test for determining whether an injury arises out of the employment is the Aincreased risk@ test. This test requires a showing that the Ainjury was caused by an increased risk to which the claimant, as distinct from the general public, was subjected by his or her employment.@ 1 A. Larson and L.K. Larson, Workers= Compensation Law, ' 3.00 (1999). In Minnesota, the supreme court has stated, A[t]he >arising out of= requirement refers to the causal connection between the employment and the injury. This requirement requires a showing of some hazard that increases the employee=s exposure to injury beyond that of the general public.@ Kirchner v. County of Anoka, 339 N.W.2d 908, 911, 36 W.C.D. 335, 337 (Minn. 1983). The injury need not be peculiar to the employment, so long as the injury-producing risk or hazard has its origin or source in the employment. See Larson, ' 3.00; Briemhorst v. Beckman, 227 Minn. 409, 35 N.W.2d 719, 15 W.C.D. 395 (1949).
Based upon the testimony of Mr. Skipper, the compensation judge could have concluded the employee=s fall did not occur in the manner in which the employee testified. It is, however, the function of the compensation judge to resolve factual disputes and make credibility determinations. If the compensation judge=s resolution of a factual dispute is supported by substantial evidence, this court must affirm that finding. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). The employee testified that while walking down the hallway, she suddenly felt her right crutch slip across the floor and she fell. While lying on the floor the employee stated she found a small piece of metal lying on the hallway floor near her right shoulder. The compensation judge found this testimony credible. The employee reported to Dr. Jamal that her fall was caused by slipping on a piece of metal. On the day of her fall, the employee gave Mr. Skipper the piece of metal. This evidence corroborates the employee=s testimony that her crutch slipped on a piece of metal. Given this evidence, we cannot conclude the compensation judge=s reliance on the employee=s testimony was clearly erroneous. Accordingly, the compensation judge=s finding that the employee=s injury resulted from her crutch slipping on a piece of metal on the floor is affirmed.
The requisite causal connection exists if the employment exposes the employee to a hazard that originates on the premises as part of the working environment. Nelson at 275, 19 W.C.D. at 123. In this case, the injury-producing hazard, the piece of metal on the floor of the employer=s premises, increased the risk of harm to this employee who was walking on crutches. That the general public is also subject to a risk of falling caused by debris in a walk area is not determinative of whether the increased risk requirement has been met. Rather, the issue is whether the employment caused or contributed to the employee=s injury. Here, the hallway floor, part of the work environment, was the source of the injury-producing hazard. Accordingly, the increased risk test has been met. The compensation judge=s conclusion that the employee=s injury arose out of her employment is affirmed.
2. Termination from employment
The appellant next contends the employee=s wage loss subsequent to her injury was caused not by her personal injury but due to her termination. The self-insured employer contends the employee failed to properly implement procedures required by the Department of Health which resulted in her termination. Accordingly, the appellant argues, the employee=s wage loss is not attributable to her injury and the compensation judge legally erred in awarding benefits. We disagree.
There is no contention in this case that the employee was terminated for misconduct under Minn. Stat. ' 176.101, subd. 1. Absent a defense of misconduct under the statute, the general rule is that a justifiable discharge from employment only suspends an employee=s right to wage loss benefits. If, however, the employee demonstrates that the work-related injury is the cause of the employee=s inability to obtain or hold employment, benefits must be reinstated. Marsolek v. George A. Hormel Co., 438 N.W.2d 922, 41 W.C.D. 964 (Minn. 1989). The appellant does not argue that the employee failed to perform a reasonable and diligent job search subsequent to her termination or that her employment thereafter is not an accurate reflection of her earning capacity. Accordingly, the compensation judge=s award of wage loss benefits is affirmed.