DONALD SPINKS, Employee/Appellant, v. ECOWATER SYS., SELF-INSURED, adm=d by RSKCO, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 21, 2005
ARISING OUT OF AND IN THE COURSE OF - SUBSTANTIAL EVIDENCE. Where the shoulder injury of the employee, who had polio, occurred as a result of his striking only the floor, after a fall when his leg brace failed to lock as he stepped out of a scooter in the employer=s cafeteria to purchase a soft drink, substantial evidence supported the compensation judge=s denial of benefits on grounds that, while it may have occurred Ain the course of@ the employee=s employment, the injury lacked any causal relationship to the employment and therefore did not Aarise out of@ that employment.
Determined by: Pederson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Ronald E. Erickson
Attorneys: Katherine A. Brown-Holmen, Dudley & Smith, St. Paul, MN, for the Appellant. William G. Laak and Nancy E. Lamo, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge=s finding that the fall sustained by the employee at work did not arise out of his employment. We affirm.
The facts in this case are essentially undisputed. Donald Spinks [the employee] injured his left shoulder on February 11, 2003, and he alleges that this injury arose out of and in the course of his employment as a machinist at Ecowater Systems [the employer]. The employee was fifty-four years old on that date and had worked for the employer for more than thirty years.
The employee was disabled by polio as a child and was left with weakness in his left leg requiring that he wear a custom brace from foot to hip on his left leg in order to stand or walk. The brace is hinged, which allows the employee to have his knee bent while sitting. In order to stand, the employee straightens the brace at the hinge and locks it into that straightened position by pulling up on a bar on the back side of the brace. This locking of the brace allows the employee to bear weight on his left leg. The brace emits an audible clicking sound when the locking bar is snapped into position, and the employee can also feel the brace snapping straight as it is locked. Thus the employee relies on both sound and feel to make sure that the brace is in its extended position.
The employer has provided the employee with a sit-down electric scooter for traveling around the work place. The employee uses the scooter to check on work orders or to stop in to see his supervisor or to make trips to the rest room or cafeteria. The scooter is not used outside of the work place, and it remains in the building. If he has to traverse a substantial distance on the employer=s premises the employee uses the scooter, but if he only needs to make a short trip he usually walks. The employee=s practice in getting off the scooter is first to use the scooter to support himself as he rises, then to turn to the side and step out onto his right leg, and then to swing his left leg out, straighten the brace, and lock it. Once the brace is locked, the employee can put weight onto his left leg.
At the time of his injury, the employee normally worked an eight-hour shift, from 7:00 a.m. to 3:30 p.m. On February 11, 2003, the employee arrived at work later than usual, at about 7:30 a.m. He descended the steps to the area where he punched in for the day, got on the scooter, and drove the scooter to the Human Resources Department to notify them that he was at work. After doing so, he came back out, got onto the scooter, and, on the way to his work area, drove to the cafeteria in order to obtain a soft drink. The employee parked the scooter next to the cafeteria, intending to walk to the soft drink vending area. The scooter was parked about twenty feet from an assembly line, near which was also some forklift traffic. There was therefore some noise in the area where the employee parked, but generally the area was one of the quieter areas of the plant; the assembly and machining areas were usually much noisier than the area around the cafeteria.
The employee proceeded to get out of his scooter in his usual manner, using the scooter to initially support his weight and then swinging his weight down onto his right leg. As usual, he then straightened the brace on his left leg and pulled up the bar on the back side of the brace, but this time he did not hear the lock click into position or feel the brace engage. Thinking that the brace had locked, however, he shifted his weight onto his left leg. Once he did so, his left knee buckled and he fell to the floor.
The employee=s fall resulted in substantial injuries to his left shoulder. He ultimately underwent two surgical procedures, in April and September 2003, for a large left rotator cuff tear. The employee was totally disabled from employment from February 11 through August 10, 2003, and again from September 19, 2003, through March 21, 2004.
On April 25, 2003, the employee filed a claim petition, seeking payment of medical expenses and temporary total disability benefits. The self-insured employer denied liability for the employee=s injury. The employee=s claims ultimately came on for hearing before a compensation judge at the Office of Administrative Hearings on April 21, 2004. The primary issue presented to the compensation judge was whether the employee=s injury on February 11, 2003, arose out of and in the course of employment with the employer. In a Findings and Order issued June 14, 2004, the judge found that, although the employee=s injury had occurred on the employer=s premises during the hours of employment, the employee had failed to sustain his burden of proving that his injury arose out of his employment activities. Accordingly, the judge concluded that the employee was not entitled to workers= compensation benefits. The employee 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 (2004). 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).
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 his Findings and Order, the compensation judge discussed the employee=s burden of establishing the necessary connection between his injuries and his employment activities. The judge concluded that the employee fell because his brace failed to lock in place, a risk entirely personal to the employee, and not Adue to any increased risk that he was subjected to as a consequence of his employment activity.@
1. Causal Connection
On appeal, the employee argues that the compensation judge failed to consider the causal connection between the employee=s utilization of the scooter and his injuries. He contends that the employer-provided scooter benefitted the employer by allowing the employee to become more efficient. Each time he used the scooter to move around the plant, the employee would have to disengage and re-engage his leg brace. The employee=s use of the scooter, the employee argues, created an inherent risk that his brace might not re-engage in the manner necessary to keep him from falling in the process of getting up from the scooter We are not persuaded.
The only evidence on the Aarising out of@ issue in this case is the testimony of the employee and the employee=s supervisor, Steven Sobanski. There is no evidence that the scooter was the cause of or contributed in any manner to the employee=s injury. The employee did not identify any employment-related risk as the cause of his injury. The fact that the employee may disengage and re-engage his leg brace during the course of the day is an effect of the employee=s childhood polio, a condition entirely personal to the employee. Any time he rises from a sitting position to a standing position, the employee must re-engage his brace. Moving from a seated to a standing position is risky for the employee only because he must lock his brace. This risk is entirely personal to the employee and does not become a risk of the employment merely because the employee is in the course of his employment at the time of his injury.
The increased risk test requires that the risk which causes the injury have its origin or source in the employment. In this case, the only connection between the employment and the injury was the fact that the injury occurred on the employer=s premises. As to risks personal to the employee, the Larson treatise provides as follows:
Injuries arising out of risks or conditions personal to the claimant do not arise out of the employment unless the employment contributes to the risk or aggravates the injury. When the employee has a preexisting physical weakness or disease, this employment contribution may be found either in placing the employee in a position which aggravates the effects of a fall due to the idiopathic condition, or in precipitating the effects of the condition by strain or trauma.
1 A. Larson and L. K. Larson, Larson=s Workers= Compensation Law, Ch. 9, AScope@ (2004). The judge=s conclusion that the employee=s fall was due to a risk entirely personal to the employee and that the employee failed to prove that the work environment increased the risk of a fall is reasonably supported by the record. Accordingly, under the increased risk test appropriately applied by the compensation judge, the employee failed to prove that his injury arose out of his employment.
2. Balancing Test
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). In Bohlin, this court noted that 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. Also in Bohlin, this court adopted the balancing test set forth by Professor A. Larson in Workmen=s Compensation for Occupational Injuries and Death, which we paraphrased as follows:
[I]n any given case, a certain minimum level of work-connection must be established. Thus, 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.
Bohlin, 61 W.C.D. at 79, citing A. Larson, Workmen=s Compensation for Occupational Injuries and Death, ' 29.00 (1993).
In the present case, the employee contends that the compensation judge committed an error of law because he failed to perform the Abalancing test@ before he determined that the employee=s injury did not Aarise out of@ his employment. Here, the employee contends that the Acourse@ factor is strong and that, even if the Aarising@ elements are weak, the required work-connection has been established under the balancing test. We are not persuaded.
The purpose of Larson=s balancing test is to establish a certain level of work-connection so as to conclude that a given injury arises out of and in the course of employment. There is no dispute that the employee=s injury occurred during his normal work hours on the premises of the employer. The Acourse@ test, therefore, while perhaps not strong, has been satisfied. The compensation judge, however, determined that the employee=s injury was not Adue to any increased risk that he was subjected to as a consequence of his employment activity.@ As such, the judge did not find that the Aarising@ test had been met even weakly. An injury may be incurred in the course of the employment and still have no causal connection with it. We affirm the judge=s conclusion that the employee=s injury by striking the floor lacked any causal connection to a risk inherent to the employment, and consequently we find no error in the judge=s apparent inapplication of the balancing test to the facts of this case.
3. Application of Stenberg v. Raymond Co-operative Creamery Company
At trial, the employee contended that the supreme court=s holding in Stenberg v. Raymond Co-operative Creamery Company supported his claim that his injury arose out of his employment. See Stenberg v. Raymond Co-operative Creamery Co., 209 Minn. 366, 296 N.W. 498, 11 W.C.D. 415 (1941). On appeal, he contends that the judge misinterpreted both the facts of the case and the legal principles established in Stenberg and that, therefore, the judge=s denial of coverage in this case was based on Aa clear error of law and factual analysis.@
In Stenberg, the employee, while engaged in the performance of his usual work within and upon the employer=s premises, sustained a fall due to either a Atricky knee@ or a Aweak heart,@ conditions personal to the employee. As he fell, the employee struck his head on a corner of a typewriter stand, then fell face first onto the concrete floor, sustaining a skull fracture that resulted in his death. In applying Stenberg to the instant case, the compensation judge concluded that the Stenberg court Aseems to have held the employer liable primarily because the employee struck the [typewriter stand].@ The employee asserts that, contrary to the apparent rationale of the compensation judge in the present case, the supreme court in Stenberg found that employee=s injury in that case Aarose out of@ his employment precisely because the fall in that case had resulted from Aa physical disability which [the employee] had brought to his employment.@ The employee contends that the Stenberg court did not use the existence of the typewriter stand to help establish the Aarising out of@ element for recovery. Instead, he argues, the existence of the typewriter stand is only used to help establish that the employee=s injuries were sustained during the Acourse@ of his employment. We are not persuaded.
The ultimate conclusion of the Stenberg court was that the employment and the injury were causally connected. Although the court indicated that Stenberg=s injury appeared Ato have had its origin in a risk connected with the employment,@ it is unclear from the decision what the court considered the risk to be. The employee essentially argues that the Stenberg court applied a Apositional risk@ test. Under the positional risk test, an injury is compensable Aif it would not have occurred but for the fact that the conditions and obligations of the employment placed [the] claimant in the position where he was injured.@ 1 Larson and Larson, ' 3.05. Following this reasoning, it would appear that injuries sustained by striking flat surfaces after idiopathic falls are compensable in Minnesota. However, in O=Rourke v. North Star Chemicals, Inc., the supreme court, without referencing prior idiopathic fall cases, held that the employment must Aaggravate the effects of the fall@ before the resulting injury is compensable. O=Rourke v. North Star Chemicals, Inc., 281 N.W.2d 192, 194, 31 W.C.D. 672, 675 (Minn. 1979). In the instant case, whether his interpretation of the holding in Stenberg is correct or not, the compensation judge=s rationale for denying benefits to the employee is consistent with the supreme court=s subsequent holding in O=Rourke and this court=s holding in Koenig v. North Shore Landing.
In Koenig, the employee fell at work as a result of either a seizure or the effects of alcohol withdrawal. The employee argued that he was subject to an increased risk of serious injury because he fell on an extremely hard slate tile floor. In affirming the trial court=s denial of benefits, this court chose to adopt the position set forth by Professor A. Larson:
When an employee, solely because of nonoccupational heart attack, epileptic fit, or fainting spells, falls and sustains a skull fracture or other injury, the question arises whether the skull fracture, as distinguished from the internal effects of the heart attack or disease, which of course are not compensable, is an injury arising out of the employment.
The basic rule, on which there is now general agreement, is that the effects of such a fall are compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, such as height, near machinery or sharp corners, or in a moving vehicle.
Koenig v. North Shore Landing, 54 W.C.D. 86, 93 (W.C.C.A. 1996), quoting A. Larson, ' 12.11. A majority of this court in Koenig stated,
We do not believe that injuries sustained by striking flat surfaces after idiopathic falls are injuries which arise out of employment. A flat floor, regardless of its softness or hardness, is the ordinary standard for workplaces and does not pose a unique or unusual hazard. We think it unwise to distinguish between types of flat level floors since such an exercise would require the establishment of a standard of acceptable hardness which would be impractical in application. The only alternative would be to adopt the minority position that all injuries sustained after idiopathic falls are compensable. We do not believe that rule to be equitable, especially in cases like the one at hand.
Koenig, 54 W.C.D. at 94.
In the present case, we find the judge=s ultimate conclusion to be consistent with the supreme court=s holding in O=Rourke. Substantial evidence supports the judge=s finding that the employee=s work activities did not contribute to his fall and that the work environment did not increase the risk of injury to the employee. The employee=s fall and consequent injury did not have their origin in a risk connected with the employment. Absent such a causal connection, the employee has not established that his injury Aarose out of@ his employment. See also Kirchner v. County of Anoka, 339 N.W.2d 908, 36 W.C.D. 335 (Minn. 1983).
4. Contributory Negligence
The employee contends finally that the compensation judge appears to have based his denial of coverage in this case also on the fact that the employee did not hear his leg brace click into place when he got up from the employer-provided scooter. Contrary to Minn. Stat. ' 176.021, subd. 1, the employee asserts, the compensation judge has inserted an element of contributory negligence into the employee=s case. We disagree.
The judge=s Findings and Order make no reference, either directly or indirectly, to a theory of contributory negligence. At Finding 12, the judge=s finding that the employee failed to hear his leg brace click into place was merely an element of factual narrative, made in reference to the employee=s assertion at trial that the noise of the work environment contributed to the employee=s injury. As noted earlier, every time the employee changes positions between sitting and standing he must lock his brace. We do not construe the judge=s reference to this fact to suggest that he imposed a burden of contributory negligence on the employee.
Because it was not unreasonable for the judge to conclude that the employee did not establish that his work activities or environment increased the risks of his fall or aggravated his injuries, we affirm the judge=s determination that the employee did not establish that his injury arose out of his employment. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239. Accordingly, we affirm the judge=s Findings and Order in its entirety.
 Medica Choice/HRI paid medical expenses on behalf of the employee and intervened in this case, seeking reimbursement for expenses paid. Capitol Orthopedics, Ltd., Allina Medical Clinic-Woodbury, United Hospital, St. Paul Radiology, The Orthopaedic Center, and Methodist Hospital also intervened in the case, seeking payment of their outstanding balances.
 At Finding 12, the judge specifically rejected the employee=s argument at hearing that noise of the work environment contributed to the employee=s failure to hear his leg brace click into position. Although the employee appealed from Finding 12, he did not address the issue in his brief. AIssues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court.@ Minn. R. 9800.0900, subps. 1 and 2.
 The employee quotes the Stenberg court, quoting from a case in another jurisdiction, as follows:
The inference although unexpressed, seems to us plain that, if he had fallen because of a physical disability which he had brought to his employment, . . . the resulting injury would have been one arising out of the employment. And this would have been so because the fall would have caused the injury, and not the physical disability.
Stenberg, 209 Minn. at 371, 296 N.W. at 501, 11 W.C.D. at 419, quoting Gonier v. Chase Companies, Inc., 97 Conn. 46, 50-51, 115 A. 677, 678, 19 A.L.R. 83.
 See also, Miller v. Goodhue - Rice - Wabasha Citizens Action Council, Inc., 293 Minn. 454, 197 N.W.2d 424, 26 W.C.D. 187 (1972); Barlau v. Minneapolis - Moline Power Implement Co., 214 Minn. 546, 9 N.W.2d 6, 12 W.C.D. 531 (1943).