LAUREN MAKER, Employee/Appellant, v. KELLY LAW REGISTRY, and CNA-RSKCO, Employer-Insurer, and HEALTHPARTNERS, INC., COURAGE CTR., OPTIMAL HEALTH ZONE, INSTITUTE FOR ATHLETIC MED., MN DEP=T OF EMPLOYMENT & ECON. DEV., FAIRVIEW HEALTH SERVS., STATE FARM MUT. INS., and JO ANN HANNON, PSY.D., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 11, 2006
ARISING OUT OF AND IN THE COURSE OF - GOING TO AND FROM WORK. Where at the time of her injury, the employee had neither entered the building in which she normally worked nor signed in for her shift, where there was no evidence to support her assertion that she was conducting business in a sanctioned area at the time of the injury or was otherwise engaged in activities incidental to her employment, and where the hazards to which she was exposed as a pedestrian on the public sidewalk were no different from those to which the general public was exposed, the compensation judge=s conclusion that the employee=s freak injury on the public sidewalk near the entrance to her workplace, when she was hit by a tire that had flown off a passing truck as she approached her workplace, did not arise out of an in the course of her employment was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Stofferahn, J., and Wilson, J.
Compensation Judge: Gary M. Hall
Attorneys: David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Appellant. Jay T. Hartman, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, 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 her employment. We affirm.
Lauren Maker [the employee] is an attorney licensed to practice law in Minnesota. In January 1999, she was hired by Kelly Law Registry [the employer], a temporary agency, to work as a temporary attorney. She was assigned to work on a class action suit at the offices of one of the employer=s clients located in the Soo Line Building on Fifth Street and Marquette Avenue in downtown Minneapolis. In commuting to and from work, the employee chose to drive her personal vehicle and to park near the Mississippi River about ten to fifteen blocks from the Soo Line Building. The employer did not direct the employee to park in any particular location, did not reimburse parking expenses, and was otherwise uninvolved in the employee=s commute. Nor was the employee required to have a car available during the work day.
The employee=s work shift was from 10:00 a.m. to 6:00 p.m. each day. On March 7, 2000, the employee=s supervisor, Phyllis Alexander, and three of the employee=s coworkers, who began work earlier in the morning, were on a smoking break on the public sidewalk outside the Soo Line building as the employee approached. These individuals and others regularly took such a smoking break at about this same time of day, on the Fifth Street side of the Soo Line Building. At these smoking breaks, work issues were sometimes discussed, and the employee was in the habit of stopping to talk with this group most days before entering the building. She generally used this opportunity to check in with her supervisor and coworkers to see if there were any issues that she should be aware of for the day. At 9:53 a.m. on the morning of March 7, 2000, as the employee approached the group of smokers on the public sidewalk, a tire came off a passing pickup truck and struck the employee, who was knocked off her feet and onto the sidewalk.
On September 30, 2004, the employee filed a claim petition alleging that injuries that she sustained on March 7, 2000, arose out of and in the course of her employment with the employer. The employer and its workers= compensation insurer denied liability, and the matter was heard by a compensation judge on August 24, 2005. Evidence at trial included testimony from the employee and Larry Leinendecker, one of the three coworkers on the sidewalk at the time of her injury, together with witness statements from Mr. Leinendecker, supervisor Alexander, and the other two witnessing coworkers, Doug Utter and Pedro Bahamonde. Statements by the witnesses placed the employee at somewhere between ten and twenty feet from the group at the time she was struck by the tire. Mr. Leinendecker testified that when the employee landed on the sidewalk she was about six feet away from the group. The employee testified that she thought she had stopped walking by the time she was struck by the tire, as she remembered teasing Mr. Utter about his tan from a recent vacation.
In a Findings and Order issued October 25, 2005, the compensation judge found that the employee had not yet reached the group or substantially joined in any conversation when she was struck by the tire and injured. The judge concluded that the employee=s injury on the public sidewalk before her workday began did not arise out of and in the course of her employment. 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).
AEvery employer . . . is liable to pay compensation in every case of personal injury or death of an employee arising out of and in the course of employment.@ Minn. Stat. ' 176.021, subd. 1. A Apersonal injury@ is an injury sustained while the employee is Aengaged in, on, or about the premises where the employee=s services require the employee=s presence as a part of such service at the time of the injury and during the hours of such service.@ Minn. Stat. ' 176.011, subd. 16. Thus, the phrase Aarising out of@ requires evidence of a causal connection between the injury and the employment, while the phrase Ain the course of employment@requires that the injury occur within the time and space boundaries of employment. Foley v. Honeywell, Inc., 488 N.W.2d 268, 271-72 (Minn. 1992) (citing Gibberd v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988). Whether an injury arose out of and in the course of employment is generally a question of fact for the compensation judge, Franze v. National Delivery Service, 49 W.C.D. 148, 155 (W.C.C.A. 1993), the burden of proof being 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. 396 (1949).
Bohlin, 61 W.C.D. at 72. As a general rule, injuries sustained while commuting to and from work are not compensable under the Workers= Compensation Act. See, e.g., Swanson v. Fairway Foods, 439 N.W.2d 722, 41 W.C.D. 1010 (Minn. 1989); Lehn v. Kladt, 312 Minn. 557, 250 N.W.2d 846, 29 W.C.D. 347 (1977).
Numerous exceptions to the general Acoming and going@ rule cited above are spelled out in various case law precedents, but the employee does not argue pursuant to any of these precedents or otherwise explain how the facts of this case should give rise to an exception. On appeal, the employee appears to argue only that the compensation judge erred as a matter of law because, quoting the judge, this is Aa very close case@ and, citing the judge=s reasoning, had the employee reached the group of smokers before she was injured, and so been able to discuss work with them, the injury would have arisen out of and in the course of her employment. The employee disputes the judge=s finding that the employee had not joined the group and argues that, in any event, it makes no sense to conclude that the employee would have been covered had she been two or three feet closer to the group but remains uncovered short of that two or three feet. She contends that, had employees not been directed to smoke on the public sidewalk, this group of people would not have been there on the public sidewalk on March 7, 2000, and, had the employee not stopped to join the conversation, most likely she would have entered the building. Because the employee was only injured because she was stopping to talk, public policy, she contends, requires that the employer and insurer bear the responsibility for the injury that she sustained while conducting business in this sanctioned area. We are not persuaded.
In this case, whatever might arguably have been her habit at this place and time on other days, the employee was not involved in the practice of law or in the discussion or development of materials to that end at the time of her injury. Nor were her activities at the time of her injury on the normal premises of the employer or during her normal working hours: they occurred on the public sidewalk outside the building where she normally did her work, and they occurred at least seven minutes prior to the time she normally checked in. That the employee may have been injured very close to her working premises and very near her normal working hours is not dispositive; mere proximity, standing alone, is insufficient to meet the Ain the course of@ requirement for compensability. See Satack v. State, Dep=t of Public Safety, 275 N.W.2d 556, 31 W.C.D. 260 (Minn. 1978). However Aclose@ a case this may be on each of the three separate employment connectionsBnormal duties, normal hours, normal premises--and we are not convinced that it even is a close case in the endBthe employee simply was not in the course of her employment at the time of her injury, and the risk of her being struck by a tire on the public sidewalk was not a risk or hazard obviously related to her employment.
Apparently responding to suggestions from the employee that there exists case law that extends the employment premises to parking lots in certain circumstances where a sufficient connection was found between the employer and the employee=s place of parking, the compensation judge found no employment connection between the employer in this case and employee=s choice of parking lots or her walking route from that parking lot to the Soo Line Building. The judge concluded that the employee=s route did not expose her to personal risk any greater than that of the general public, and that conclusion was not unreasonable. Nor would it have been unreasonable for the judge to conclude that neither the specific route nor the employee=s check-in with the smoking group was in any way expected, much less required, by the employer, in that the employee testified that she sometimes took a different route, depending on the weather. Although the employee testified that she thought that she had stopped walking and had joined the smoking group before being struck by the tire, the judge determined the employee was about ten feet away from the group and near the building entrance when she was injured, and this factual determination by the judge is supported both by the various witness statements taken shortly after the incident and by the testimony of Mr. Leinendecker at hearing.
Without citing to any supportive case law, the employee argues that Athere are numerous cases@ in which the Ain the course of@ requirement has been expansively relaxed in situations in which the employer=s interests are being advanced while the employee is off the premises or outside the normal work hours. The fact remains, however, that the employee in this case was not in any way advancing the employer=s interests at the time of her injury. 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 her employment. Each case addressing whether an injury arises out of and in the course of and in the course of employment stands on its own facts, see, 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), and we conclude that the judge=s decision is amply supported by the record. The employee was the victim of a freak accident while walking on the public sidewalk on her way to work. She had not started her work shift or entered the building to sign in for her shift. There is no evidence to support the employee=s assertion that she was conducting business in a sanctioned area at the time of her injury, nor was she apparently engaged in any activity incidental to her employment duties. The hazards to which the employee was exposed as a pedestrian on the public sidewalk were no different from those to which the general public was exposed. It is evident from the judge=s decision that he carefully considered the Aarising out of@ and Ain the course of@ tests for work connection before concluding that the requisite connection did not exist. The judge=s denial under the facts of this case is supported by substantial evidence in the record as a whole, and accordingly we affirm. Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.