JANET L. MOE, Employee/Appellant, v. UNIVERSITY OF MINN., SELF-INSURED/SEDGWICK CLAIMS MGMT., INC., Employer, and UNIVERSITY OF MINN. PHYSICIANS and FAIRVIEW HEALTH SERVS., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 27, 2009
APPEALS - NOTICE OF APPEAL. Where the employee clearly stated in her notice of appeal that she was appealing the compensation judge’s ruling that the employee’s injuries did not arise out of or in the course of her employment, the notice of appeal adequately identified the issue on appeal and is sufficient to confer jurisdiction on this court.
ARISING OUT OF & IN THE COURSE OF. Where the employee was traveling between two parts of the employer’s premises and slipped on ice or snow on the public sidewalk across the street from the employer’s building where the employee worked, the compensation judge’s determination that the employee’s left arm and wrist injuries did not arise out of and in the course and scope of her employment with the employer is not consistent with the law, and is therefore reversed.
Reversed and remanded.
Determined by: Rykken, J., Stofferahn, J., and Pederson, J.
Compensation Judge: Catherine A. Dallner
Attorneys: Richard C. Lund, Law Office of Donald F. Noack, Mound, MN, for the Appellant. Roderick C. Cosgriff and Joseph P. Mitchell, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondent.
MIRIAM P. RYKKEN, Judge
The employee appeals the compensation judge’s determination that the employee’s injury, sustained in a slip and fall on ice or snow on a public sidewalk, between the employer’s parking lot and the employee’s main work location, did not occur on the employer’s premises and therefore did not arise out of or in the course of her employment. We reverse and remand for determination of the remaining issues and claims raised at the hearing.
On January 30, 2006, Janet L. Moe, the employee, was employed as a word processing specialist for the University of Minnesota, the employer, which was self-insured for workers’ compensation liability. On that date, the employee drove to work and parked her car on campus in a surface parking lot that was operated by the employer. The employee walked toward Hodson Hall, the building in which she worked. As she was walking on a on a public sidewalk located across the street from Alderman Hall, which is located next to Hodson Hall, the employee slipped and fell, injuring her right arm and wrist. The employee was transported by ambulance to Fairview University Medical Center where she was evaluated. X-rays detected an impacted fracture of the distal radius and a minimally displaced fracture of the ulnar styloid.
The employee was referred to Dr. Ann Van Heest, an orthopedic hand surgeon, who performed surgery on her left wrist on February 3, 2006. The employee noted numbness over the dorsum of her hand following that surgery, and underwent hand therapy. On November 6, 2006, Dr. Van Heest performed left wrist arthroscopy which included the following: debridement of adhesions, removal of the plate that had been inserted into the left distal radius during the original surgery, extensor tendon tenolysis and radial sensory neurolysis.
The employee remained off work as a result of her injury, between February 6 and 17, 2006, and again from November 13 through November 17, 2006, during which time she was paid sick leave benefits by the employer. On June 15, 2006, the employee filed a rehabilitation request, and on June 16, 2006, filed a claim petition for workers’ compensation benefits related to her January 30, 2006, injuries. The self-insured employer denied primary liability, arguing that the employee’s injuries did not arise out of or in the course of her employment with the employer. A hearing was held on May 13, 2008, on that issue, as well as entitlement to temporary total disability benefits, medical expenses, payment of lost wages for the employee’s husband for driving the employee to medical appointments, and penalties based on a frivolous denial of benefits and delay in payment of benefits.
The compensation judge found that the employee’s injuries did not arise out of or in the course of her employment, and denied all of the employee’s claims. The judge concluded that the public sidewalk on which the employee slipped and fell was not part of the employer’s employment premises, that the hazard faced by the employee - - falling on winter ice or snow - - was not unlike the hazard faced by the general public, and therefore the injury did not arise out of and in the course of her employment with the employer. The compensation judge did not address any of the other issues raised by the parties and dismissed the claim petition and the rehabilitation request.
On August 21, 2008, the employee filed a notice of appeal. The notice did not list any findings of fact as being appealed, but stated that the employee was appealing the compensation judge’s ruling that the employee’s injuries did not arise out of or in the course of her employment.
The self-insured employer argues that the employee failed to list, in her notice of appeal, the specific findings made by the compensation judge that led to her conclusion that the employee’s injuries did not arise out of and in the course and scope of her employment. The scope of the review by this court is limited to the issues raised by the parties. Minn. Stat. § 176.421, subd. 6; Ruether v. State of Minnesota, Mankato State University, 455 N.W.2d 475, 42 W.C.D. 1118 (Minn. 1990). A notice of appeal is sufficient if it shows an intent to appeal and the order appealed from, and apprises the Workers’ Compensation Court of Appeals and the other parties of the issues being appealed. Atkinson v. Northern States Power, 55 W.C.D. 347, 351(W.C.C.A. 1996), summarily aff’d (Minn. Oct. 29, 1996); Minn. R. 9800.1600. The employee clearly stated in her notice of appeal that she was appealing the compensation judge’s ruling that the employee’s injuries did not arise out of or in the course of her employment. The employee’s notice of appeal identifies the issue on appeal and is sufficient to confer jurisdiction on this court.
Arising out of and in the course of employment
The employee appeals, contending that the compensation judge committed an error of law in determining that the employee’s injury did not arise out of and in the course of her employment. Specifically, the employee argues that her injury occurred within the course and scope of her employment because it occurred as she walked between two areas of the employer’s premises. The self-insured employer contends that the compensation judge correctly applied the law by holding that the employee’s injury, from a fall on a public sidewalk, did not occur on the employer’s premises and did not result from a special hazard to which the employee was exposed, and therefore is not compensable.
Pursuant to Minn. Stat. § 176.021, subd. 1, “[e]very 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 . . . .” In order to establish entitlement to workers’ compensation benefits, the employee must prove that the injury arose out of and in the course of her employment. Nelson v. City of St. Paul, 249 Minn. 53, 81 N.W.2d 272, 19 W.C.D. 120 (1957); Minn. Stat. § 176.011, subd. 16; Minn. Stat. § 176.021, subd. 1. The words “arising out of” refer to the causal connection between the injury and the employment, whereas “in the course of” refers to the time, place, and circumstances of the incident causing the injury. See, e.g., Gibberd by Gibberd v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988). Injuries sustained by an employee while commuting to and from work are generally not compensable. Swanson by Swanson v. Fairway Foods, 439 N.W.2d 722, 724, 41 W.C.D. 1010, 1013 (Minn. 1989). At the same time, however, “the protection of the workers’ compensation act extends to a reasonable period beyond actual working hours if an employee is engaging in activities reasonably incidental to employment.” Starrett v. Pier Foundry, 488 N.W.2d 273, 274, 47 W.C.D. 176, 177 (Minn. 1992).
An employee is not covered by the Minnesota workers’ compensation act “except while engaged in, on, or about the premises where the employee’s services require 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. “Premises” have been defined to include an employer’s parking lot. Foley v. Honeywell, Inc., 488 N.W. 2d 268, 271 (Minn. 1992). Controlling case law provides an exception to the premises requirement, however, and allows coverage for an injury sustained by an employee while traveling between two parts of her employer’s premises. Goff v. Farmers Union Accounting Serv., 308 Minn. 440, 441, 241 N.W.2d 315, 316, 28 W.C.D. 372, 373 (1976) (parking lot across the street from the employer’s building, that was available to the employee through agreement by the employer and the lot owner, constituted part of the employer’s premises); see also Faust v. State, Dep’t of Revenue, 312 Minn. 438, 252 N.W.2d 855, 29 W.C.D. 451 (1977). The Minnesota Supreme Court has explained that its decisions in Goff and Faust
exemplif[ied] a common exception to the premises requirement under which an injury sustained by an employee while traveling between two parts of his employer’s premises is held to arise out of and in the course of his employment.
Satack v. State, Dep’t of Public Safety, 275 N.W.2d 556, 558, 31 W.C.D. 260, 263 (Minn. 1978) (citation omitted); see also Starrett, 488 N.W.2d at 274, 47 W.C.D. at 177 (the employee’s fall in the employer’s parking lot was on the employer’s premises); Merrill v. J.C. Penney, 256 N.W.2d 518, 520-21, 30 W.C.D. 278, 282 (Minn. 1977) (a parking lot available for an employer’s use pursuant to a lease which requires it to pay a pro rata cost of maintaining the lot can constitute an extension of the employer’s premises).
The compensation judge concluded that the employee in the present case did not slip and fall on the employer’s premises, and that she did not encounter a special hazard related to her employment when she fell. Citing to Gibberd, the compensation judge noted that
The [special hazard] exception is applicable only if by virtue of the employment the employee is exposed to a hazard which originates on the employment premises, is a part of the working environment, or if it peculiarly exposes the employee to an external hazard which subjects the employee to a greater personal risk than one has when pursuing ordinary personal affairs.
424 N.W.2d at 783, 40 W.C.D. at 1053.
In Gibberd, however, the employee was injured after he left the employer’s premises for lunch; he was not traveling between two parts of the employer’s premises. The supreme court analyzed the facts in Gibberd under the special hazard exception only after determining that the employee’s injury did not occur at a place considered to be part of the employer’s working premises. The special hazard exception is not an additional requirement for a finding that an injury on the premises, or incurred while traveling between premises, arose out of and in the course of employment. It, instead, is an additional exception to be considered when the employee is neither on the premises nor on a location which constitutes the employer’s premises, for example, when the employee is traveling between premises on a reasonable route.
The compensation judge also found the facts in the present case to be strikingly similar to those in Satack, and concluded that an appropriate interpretation of Satack mandated a denial of the employee’s claim in the present case. In Satack, the employee slipped and fell on ice while walking on a public sidewalk on her way to work; the supreme court affirmed a denial of employee’s claim, noting that Ms. Satack’s employer had no knowledge of her route to work and that no special hazard annexed to her employment in the use of that route. The court in Satack explained that, “[i]t was a route used by the employee in common with members of the general public and the hazard faced by her of falling on winter ice or snow was not unlike the hazard faced by the general public.” Id. at 558, 31 W.C.D. at 263.
Unlike the present case, however, the employee in Satack was not traveling between two parts of the employer’s premises but was instead traveling between the street and the employer’s premises. The facts of this case are distinguishable from those in Satack, and bring this case within the exception to the premises requirement outlined in Goff and Faust and later reiterated in Starrett, 488 N.W.2d at 274, 47 W.C.D. at 177, where the supreme court stated:
Parking lots owned or maintained by the employer for employees are considered part of the work “premises”; and travel between the employee’s parking lot and the main premises is considered to arise out of and in the course or employment.
This court followed the supreme court’s lead in a case remarkably similar to the present case in Weiss v. State, Bemidji State Univ., 55 W.C.D. 663 (W.C.C.A. 1996), summarily aff’d (Minn. Dec. 27, 1996). In Weiss, the employee had parked in the employer’s parking lot and walked to the building where she worked, using a public sidewalk, and was injured after slipping on ice on that sidewalk. This court affirmed the compensation judge’s determination that the employee’s injury arose out of and in the course of her employment. In Weiss, the court noted that the route chosen by the employee was not more hazardous than other routes available and that the employee had not chosen this route for a personal errand. The court concluded that the sidewalk “for all intents and purposes, might be considered ‘in such proximity and relation as to be in practical effect a part of the employer’s premises. ” Id. at 668 (quoting Goff, 241 N.W.2d at 317, 28 W.C.D. at 375). As this court concluded in Weiss,
An injury sustained in reaching the main premises from the employer’s parking lot remains compensable despite its occurrence on a public way or on other property not owned by the employer, where traversing that property was reasonable or was the customary route between the employer’s parking lot and the main premises.
We see no reasonable basis for distinguishing Weiss from the facts of the present matter. In this case, the employee was injured while walking between the employer’s parking lot and the building where she worked. There is no indication that the employee’s route was not reasonable or that she deviated from her route for any personal reason.
The employer argues that Weiss was wrongly decided and that following that decision will produce disparate results by distinguishing between employees injured in the same manner and place on the basis of how they arrived at work. Whatever merit such an approach or argument may have, such a distinction is not permissible under controlling precedent. See Milton v. Henry Combs d/b/a Property Nanny, 59 W.C.D. 143, 150 (W.C.C.A. 1999), summarily aff’d (Minn. May 27, 1999), citing Petro v. Martin Baking Co., 158 N.W. 23 731, 17 W.C.D. 310 (Minn. 1953). We note that our decision in Weiss was issued more than twelve years ago and the potentially disparate results anticipated by the employer have not materialized. Moreover, as Professor Larson points out, the employer’s arguments and analysis ignore
the special doctrine that accounts for extension of the premises rule to the trip to parking lots. This is the principle that travel between two parts of the employer’s premises is compensable. By establishing or sponsoring a parking lot not contiguous to the working premises, the employer has created the necessity for encountering the hazards lying between these two portions of the premises. No such considerations apply to a trip to some bus stop or railway terminal or to some parking location on a public street over which the employer has no conceivable control.
1 Larson’s Workers’ Compensation Law, 13.01[b] at 13-8.
Given the undisputed facts in this case, we believe workers’ compensation coverage extends to this employee. We reverse the compensation judge’s ruling that the employee’s injuries did not arise out of or in the course of her employment, and remand for determination of the remaining issues and claims.