CHRISTOPHER P. JOLITZ, Employee/Appellant, v. TECHNICAL ERECTORS, INC., and TRAVELERS PROP. & CAS. CO., Employer-Insurer, and UNITED FIRE & CAS. CO., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 5, 2005
ARISING OUT OF & IN THE COURSE OF - SUBSTANTIAL EVIDENCE. Where the employee had completed his work for the day and had decided to borrow a fire extinguisher from a neighboring business for the sole purpose of washing his personal truck, where the employee=s injury in the process of pressurizing the fire extinguisher occurred on the neighboring premises and not in the performance of any request by the employer, the compensation judge=s conclusion that the employee=s injury did not arise out of and in the course of employment was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that entry onto the neighboring premises and use of the neighbor=s equipment was not contrary to the employer=s standard protocol and permission.
Determined by: Pederson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Catherine A. Dallner
Attorneys: David G. Johnson, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for the Appellant. James C. Nelson, John G. Ness & Associates, St. Paul, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge=s determination that the employee=s injury did not arise out of and in the course of his employment. We affirm.
The facts in this case are essentially undisputed. On September 30, 1999, Christopher Jolitz [the employee] was employed as a welder by Technical Erectors, Inc. [the employer]. The employer is a small family-owned company specializing in custom fabrication with iron. The owners of the company are George Psihos and the employee=s father, William Jolitz. The employer=s shop is located in a large warehouse shared by at least five other companies. The employer rented its space from Ray Anderson, who also occupied space in the warehouse next to the employer=s business. Mr. Anderson evidently operated a dumpster service known as Ray Anderson & Sons. The employee=s supervisors at the shop were the employee=s father and his brother, William Jolitz, Jr.
On September 30, 1999, the employee was working his regular 7:00 a.m. to 3:30 p.m. shift. At about 2:00 p.m., having completed all of the metal fabricating jobs that he was required to perform for the employer that day, and not wanting to start a new project, the employee decided to wash his personal truck. Washing his truck was not one of the employee=s job duties at the employer, and the employer had not requested that the employee perform such a task on September 30, 1999. To perform the task, the employee decided to use a fire extinguisher owned by Mr. Anderson that was hung outside the Ray Anderson & Sons shop. It was evidently not unusual for employees of the employer to occasionally enter the Anderson shop or to borrow items belonging to it.
The employee brought the fire extinguisher into the Anderson shop with the intention of using Anderson=s water faucet and air compressor to fill it. Filling fire extinguishers was not one of the employee=s job duties and the employer had not requested the employee to do so. The employee filled the fire extinguisher with water and then used the air compressor to add air. As the employee was adding air to the fire extinguisher, the bottom blew out and the extinguisher was pushed upward into the employee=s jaw. Neither the employee=s father nor his brother was present at the time. The employee was taken to Regions Hospital by an employee of Ray Anderson & Sons. The employee lost six teeth as a result of the accident and had to have his jaw wired shut. A first report of injury form regarding an injury of September 30, 1999, was filed with the Minnesota Department of Labor and Industry on November 3, 1999. On that same date, the insurer filed a Notice of Primary Liability Determination, denying liability for the employee=s injury.
Some four years later, in August of 2003, the employee filed a claim petition, seeking payment of workers= compensation benefits related to his injury of September 30, 1999. The employee=s claims came on for a hearing before a compensation judge on August 5, 2004, and the record in the matter closed on August 20, 2004. By findings and order issued October 19, 2004, the judge determined that the employee=s injury did not arise out of and in the course of his employment for the employer. The employee appeals.
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 (1992). 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, 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.
For Minnesota workers= compensation purposes, a personal injury is defined as an Ainjury arising out of and in the course of employment.@ Minn. Stat. ' 176.011, subd. 16. Whereas the Ain the course of@ requirement essentially implies a time and place connection between the injury at issue and the normal hours and premises of the employee=s employment, the Aarising out of@ requirement essentially implies a causal connection between that injury and the work activity - 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); see also 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). Whether an injury arose out of and in the course of employment is generally a fact question for the compensation judge, Franze v. National Delivery Serv., 49 W.C.D. 148, 155 (W.C.C.A. 1993), and the burden of proof is on the employee/claimant. Minn. Stat. ' 176.021, subd. 1. In Bohlin v. St. Louis County/Nopeming Nursing Home, this court reviewed Minnesota case law and discussed at length the tests used for determining whether an injury arises out of the employment. See Bohlin v. St. Louis County/Nopeming Nursing Home, 61 W.C.D. 69 (W.C.C.A. 2000). There we stated:
In the United States, and in Minnesota, 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, 33 (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; Breimhorst v. Beckman, 227 Minn. 409, 35 N.W.2d 719, 15 W.C.D. 395 (1949).
Bohlin, 61 W.C.D. at 72.
In the memorandum accompanying her findings and order, the compensation judge discussed the employee=s burden of establishing the necessary causal connection between his injuries and his employment. The judge concluded not only that there was no causal connection between the employee=s employment and his injury but also that the injury did not occur Awhile [the employee was] engaged in, on, or about the premises where the employee=s services require[d] the employee=s presence as part of that service at the time of the injury and during the hours of that service.@ Minn. Stat. ' 176.011, subd. 16.
On appeal, the employee argues that AMinnesota has long recognized a wide variety of situations where an employee has been injured during work hours while participating in activity not directly for the benefit of the employer.@ However true this may be, it is also true that each case addressing whether an injury arises 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.2d 290, 292, 2 W.C.D. 156, 159 (1924). While cases cited by the employee reflect Aa wide variety of situations,@ none is analogous to the instant case. Here, the employee is essentially arguing that his injury occurred within the course and scope of his employment because it happened on premises regularly utilized by the employer (the premises of Ray Anderson & Sons) and during paid working hours (between 2:30 and 3:00 p.m.) and that, because personal tasks had been previously tolerated by the employer, the employee=s activity should have been anticipated by the employer and should reasonably be covered under the Act. We are not persuaded.
The essential question for this court is whether there is a sufficient basis in the evidence and in the inferences to be drawn from that evidence to support the judge=s finding that the employee=s injury did not arise out of and in the course of his employment. We conclude that the judge=s decision is amply supported by the record and must be affirmed.
There is no dispute that, at the time of his injury, the employee had completed his metal fabricating jobs for the day and had decided to borrow a fire extinguisher from Ray Anderson & Sons for the sole purpose of washing his personal truck. Washing his truck was not one of his job duties at the employer, and he was not requested to do so by his employer. It is also undisputed that the employee was not on his employer=s premises at the time of his injury, nor was he performing any task incidental to his job for the employer. The judge noted that there was no evidence that the employee=s job duties at the employer required him to fill fire extinguishers with water or with compressed air. She concluded that the employee was not on the premises of Ray Anderson & Sons to perform any duties required of him by the employer. He was on the premises of Ray Anderson & Sons to perform a purely personal task unrelated to his iron fabrication job with the employer, using equipment that was not owned by or belonging to his employer.
It is evident from the judge=s decision that she carefully considered the arising-out-of and in-the-course-of tests for work connection and concluded that the requisite connection did not exist. The judge=s denial of benefits under the facts of this case is reasonably supported by substantial evidence in the record, and accordingly we affirm. Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 The employee cites Carey v. Stadther, 300 Minn. 88, 219 N.W.2d 76, 27 W.C.D. 365 (1974); Johnson v. Range Coop., Inc., 28 W.C.D. 336 (W.C.C.A. 1967); Hill v. Terrazzo Machine & Supply Co., 279 Minn. 428, 157 N.W.2d 374, 24 W.C.D. 511 (1968); Anderson v. Cloquet Transit Co., 40 W.C.D. 101 (W.C.C.A. 1987)); and Faust v. State, Dep=t. of Revenue, 312 Minn. 438, 252 N.W.2d 855, 29 W.C.D. 451 (1977).