LINDA MALMQUIST, Employee/Appellant, v. MATTHEW PETERSON, D.D.S., and HARTFORD INS. CO., Employer-Insurer, and CAMBRIDGE HOSP., ALLINA MED. CLINIC, OPERATING ENG. LOCAL 49 H&W FUND, and CONSULTING RADIOLOGISTS, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 20, 2008
ARISING OUT OF & IN THE COURSE OF - DEVIATION FROM EMPLOYMENT. Where the employee’s injury occurred when she briefly left the employer’s building to view nearby construction, where the employee was still, however, on the employer’s premises at the time of her injury, and where her injury occurred during her usual hours of service on a paid personal break, the compensation judge’s conclusion that the employee’s injury did not arise out of and in the course of her employment was clearly erroneous and unsupported by substantial evidence, and the judge’s denial of benefits was reversed.
Determined by: Pederson, J., Stofferahn, J., and Wilson, J.
Compensation Judge: Patricia J. Milun
Attorneys: Gregg B. Nelson, Nelson Law Office, Inver Grove Heights, MN, for the Appellant. Kassi Erickson Grove, Law Offices of Adam S. Wolkoff, Eagan, 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 reverse.
Linda Malmquist [the employee] was employed as a dental hygienist by Matthew Peterson, D.D.S. By the time of the hearing in this matter, on July 20, 2007, the employee had worked at the Cambridge Dental Center for about 14 years, the last two years under the direction of Dr. Peterson. The employee’s job duties involved cleaning teeth, taking x-rays, administering fluoride treatments, preparing instruments, doing setup, and putting away supplies. The employee was expected to keep herself busy if there happened to be a lull in the work.
The dental clinic is located in an office building in downtown Cambridge, Minnesota. Dr. Peterson shares the building and an adjacent parking lot with Cambridge Eye Associates, P.A. Each business has a separate entrance. The entrance to the dental office is located near the north-east corner of the building, and the eye clinic entrance is near the southeast corner. The dental clinic staff park their cars on the north side of the building. Customers and employees for both businesses enter the parking lot from Highway 95 at the south end of the building.
On April 25, 2006, the eye clinic was in the process of renovating the clinic interior, and a large industrial dumpster had been placed in the parking lot near its entrance. Dr. Peterson had patient cancellations that day, and, during a lull in the work activity, one of the employee’s coworkers indicated that she was going to go over to the eye clinic to see how the construction was progressing. The employee asked if she could go along. The two dental employees then proceeded to leave the dental office, walk through the parking lot, and entered the eye clinic. While they were looking over the construction project, a third coworker joined them. After several minutes at the eye clinic, the employee and her two coworkers began walking back to their office. While walking behind her coworkers, the employee stepped behind the construction dumpster to shield herself from a gust of wind, and as she shielded her eyes from the blowing debris, an unsecured door of the dumpster flew open and struck her, knocking her to the ground and causing her to fracture her wrist.
On June 30, 2006, the employee filed a claim petition for workers’ compensation benefits, contending that her wrist injury arose out of and in the course of her employment with Dr. Peterson. The employer and its workers’ compensation insurer, Hartford Insurance Company, denied liability for the employee’s injury.
The employee’s claim for benefits came on for hearing before a compensation judge on July 20, 2007. The sole issue presented to the judge was whether the employee’s injury arose out of and in the course of her employment. Evidence at trial included testimony from the employee and Dr. Peterson and several photographs of the parking lot shared by the two businesses.
The employee testified that she was paid by the hour and normally worked 30 to 32 hours a week. She was not paid during her lunch hour but was otherwise paid by the hour throughout the day. The employee also testified that she had been gone probably less than five minutes when the incident with the dumpster occurred. She agreed that her employment duties do not involve going to visit the eye clinic and that on the day of her injury she had not been asked by Dr. Peterson to go there. Dr. Peterson testified that the employee was “very dependable and hard working.” At the time of the employee’s injury, he had not been aware that patients had cancelled appointments or that several of his employees had left the office to visit the neighboring construction site. He was busy with a patient at the time. Normally, employees would not leave the office while on a paid break.
In a findings and order issued September 14, 2007, the compensation judge determined that the employee had failed to prove that the injury sustained on April 25, 2006, arose out of and in the course of her employment, and she denied the employee’s claim. 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 (2008). 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 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).
To be compensable under the workers’ compensation statute, an injury must arise “out of and in the course of employment” while an employee is “engaged 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. The phrase “in the course of” refers to the time, place, and circumstances of the injury; “arising out of” connotes a causal connection between the injury and the employment. Gibberd v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988). The requisite causal connection “exists 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).
In denying the employee’s claim for benefits, the compensation judge found that, on April 25, 2006, the employee and two coworkers left the dental office for a short personal break to go view “the outside construction site” at the southern end of the east side of the building; that the employee’s sole purpose in viewing the construction site was to satisfy her own curiosity; that the employer was unaware of the employee’s intentions; that the employer gained no benefit by this activity; that the employee’s conduct in leaving the premises and removing herself from the duties of her employment caused an unforeseen injury at a construction site that constituted an increase in risk for injury that was not incidental to her employment; and that the employee’s injury clearly occurred on the designated premises of the construction site for Cambridge Eye Clinic. In a footnote to one of her findings, the judge stated that no factual evidence was offered to support the application of the personal comfort doctrine.
The employee appeals from the judge’s determination that her injury did not arise out of and in the course of her employment, asserting that the decision is not supported by substantial evidence and is clearly erroneous. Specifically, the employee argues that, contrary to the judge’s findings, the employee’s injury clearly occurred on the employer’s premises and while she was on and returning from a personal comfort break, making her injury compensable. We agree.
We note initially that the judge was incorrect when she concluded that the employee’s injury did not occur on the employer’s premises. Contrary to the judge’s finding, it is apparent from the record that the construction was going on inside the Cambridge Eye Clinic, not outside. No evidence was introduced, other than that relating to the presence of a dumpster in the parking lot, to establish that the construction site extended beyond the interior of the eye clinic. The employee may have left the employer’s premises when she and her coworkers were viewing the construction inside the eye clinic, but they returned to the employer’s premises when they entered the common parking lot on their way back to the dental clinic. Parking lots owned or maintained by an employer for its employees are normally considered part of the work “premises.” See Starrett v. Pier Foundry, 488 N.W.2d 273, 274, 47 W.C.D. 176, 177 (Minn. 1992); Merrill v. J.C. Penney Co., 256 N.W.2d 518, 30 W.C.D. 278 (Minn. 1977). Having concluded that the injury occurred on the employer’s premises, during the employee’s usual hours of work - - that is, in the course of the employee’s employment - - we turn to the “arising out of” component of compensability.
It is “well established that acts of an employee necessary to life, comfort, or convenience while at work, although personal to him and not technically acts of service, are incidental to the service, and injury arising while in the performance of such acts is compensable.” Hill v. Terrazzo Machine & Supply Co., 279 Minn. 428, 433, 157 N.W.2d 374, 377, 24 W.C.D. 511, 517 (1968) (citations omitted). In Hill, an employee who had arrived for work early used the few minutes before his shift began to leave his place of work in order to mail a card in a street mailbox. While doing so, he was injured on the employer’s premises. The Minnesota Supreme Court viewed the question presented as whether the employee had removed himself from the protection of the act by momentarily leaving his employment to go out to the street to place a letter in the mailbox. In finding the employee’s injury compensable, the court explained that
the incident out of which the injuries arose was not a departure from work but a minor interruption from work which might reasonably be expected in the course of a day’s activities. It is only realistic to say that a workman does not move mechanically in precise and definite work patterns, and it may be expected that he will from time to time perform acts which are not necessarily in the nature of service to the employer. We conclude that since the conduct from which the injuries arose was such as reasonably might be expected, and since it was not expressly forbidden, it was not such a departure from the course of service or the performance of his duties as to deprive him of the benefits of the compensation act.
Id. at 433, 157 N.W.2d at 377-78, 24 W.C.D. at 518.
In the present case, it is undoubtedly true that Dr. Peterson did not require or request that his employees visit the eye clinic on the day in question. But we find nothing in the record to suggest that such a visit was or would have been expressly forbidden. Rather, the employee’s activity was reasonably incidental to the employment relationship. The employee was on a paid break period during a lull in her employment responsibilities at the dental clinic. She was away from the dental clinic for no more than five minutes when the injury occurred. While the employee was doing nothing more than satisfying a personal curiosity, this momentary deviation from her duties was not so unreasonable or unusual as to remove her from coverage under the Workers’ Compensation Act, especially when, again, the injury occurred on the employer’s premises. The statute does not require an employee to establish a work-related purpose for every activity during the work day. We would also note, in passing, that if the employee had sustained the same injury in the parking lot while on a cigarette break, the compensability of her injury would not be questioned. We see no basis to distinguish this case from cigarette break or other personal comfort cases.
As this court has observed in the past, “when 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 v. St. Louis County/Nopeming Nursing Home, 61 W.C.D. 69, 81 (W.C.C.A. 2000) (citation omitted). While the present case is arguably one of those close to the line, it is clear to us that the employee’s activity here remained reasonably incidental to her employment. Therefore, because the employee was on the employer’s premises at the time of her injury, because her injury occurred during her usual hours of service on a paid personal break, and because any deviation from her work was very minor, we conclude that the employee’s injury arose out of and in the course of her employment. The decision of the compensation judge is therefore reversed.
DEBRA A. WILSON, Judge
I concur with the majority that the compensation judge erred in finding that the employee’s injury occurred “on the designated premises of the construction site for Cambridge Eye Clinic.” There is no evidence to support that finding. I respectfully dissent, however, from the majority’s decision that the employee’s injury was compensable.
Under what is generally known as the personal comfort doctrine, “acts of an employee necessary to life, comfort or convenience at work, although personal to him and not technically acts of service, are incidental to the service, and the injury arising while in the performance of such acts is compensable.” Hill v. Terrazzo Machine & Supply Co., 279 Minn. 428, 433, 157 N.W.2d 374, 377, 24 W.C.D. 511, 517 (1968) (citations omitted). In the instant case, the compensation judge found that “[t]here is no factual evidence to support the personal comfort doctrine.” I agree.
The employer testified that it was not expected that employees would take breaks during the day, other than an unpaid lunch break, or that they would leave the building. While the employee testified that she had occasionally left the building on breaks in the past, the examples she gave were of errands that benefitted the employer. She acknowledged on cross examination that, when appointments were cancelled, there were other tasks that could be performed in place of working with a patient, but on the date of injury, she instead left the dental clinic building to view construction at the eye clinic. She offered no testimony to support the conclusion that her leaving the building, to view the construction site, was necessary to life, comfort, or convenience. Rather, her only explanation as to why she went to the eye clinic that day was that her coworker was going, and she was curious to see the work.
In Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984), the Minnesota Supreme Court directed this court not “to substitute its view of the evidence for that adopted by the compensation judge if the compensation judge’s findings are supported by evidence that a reasonable mind might accept as adequate.” Id. at 60, 37 W.C.D. at 240. Given the testimony referenced above, it was reasonable for the compensation judge to conclude that the employee had not established compensability under the personal comfort doctrine. Accordingly, I would affirm the judge’s denial of benefits.
 Dr. Peterson testified that employees occasionally go to restaurants located on Highway 95 for lunch. At such times, they would proceed through the parking lot past the entrance to the eye clinic on the south side of the parking lot.
 I question, however, whether it is reasonable to automatically consider all parts of an employer’s parking lot the “premises” no matter what the circumstances of the injury.
 She testified that she had gone to get donuts for the office, to pick up supplies for the office, to get water for the sterilizers and to trim bushes around the outside of the dental clinic.