JANICE CUMMINGS, Employee/Appellant, v. KELLY SERVS. and INDEMNITY CO. OF N. AM./ESIS, Employer-Insurer/Cross Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 17, 2012
ARISING OUT OF & IN THE COURSE OF - GOING TO AND FROM WORK. Where the employee’s fall occurred while she was crossing a public space and she was not encountering a hazard greater than that encountered by the general public, her injury did not arise out of and in the course of her employment.
Determined by: Stofferahn, J., Wilson, J., and Milun, C.J.
Compensation Judge: Bradley J. Behr
Attorneys: William J. Krueger and Evan W. Cordes, William J. Kruger, P.A., New Brighton, MN, for the Appellant. Jay T. Hartman, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Cross-Appellants.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s determination that her injury did not arise out of her employment. The employer and insurer cross appeal from the compensation judge’s finding that the employee fell on the employee’s premises. We affirm the compensation judge’s denial of the employee’s claim.
Janice Cummins was employed by Kelly Services on the date of her injury, April 25, 2011. Kelly Services, a temporary employment agency, had placed Ms. Cummings in a clerical position with Ecolab in downtown St. Paul.
The Ecolab building is on the northeast corner of the intersection of Wabasha Street and Fifth Street. The building faces Ecolab Plaza which is owned and maintained by the City of St. Paul as a city park. A pedestrian exiting the Ecolab building to go outside would descend two steps near the building to reach the main level of the plaza. The pedestrian could then continue to walk west and go down two more steps to reach the sidewalk on Wabasha, or turn south, walk approximately one-third of a block and go down steps to reach the sidewalk on Fifth Street. Because Fifth Street goes downhill east of Wabasha, a pedestrian would encounter two to five steps from the plaza to the sidewalk.
Ms. Cummings finished working for the day at about 5:00 p.m., and exited the Ecolab building to the plaza. She had parked in a public parking ramp south of the Ecolab building, so she turned left toward Fifth Street, crossed the plaza, and began going down the steps to the sidewalk. On about the third step, she fell, fracturing her right ankle. Ms. Cummings testified that she did not know why she fell.
The employee claimed her injury arose out of and in the course of her employment, and she filed a claim petition seeking various workers’ compensation benefits. The employer and its insurer, Indemnity Company of North America, denied primary liability for the injury, and the claim petition was heard by Compensation Judge Bradley Behr on April 6, 2012. At the hearing, the parties stipulated to the facts leading up to the injury, to the temporary total disability claimed by the employee, and agreed that the medical treatment for the right ankle fracture was reasonable and necessary.
In his decision, the compensation judge concluded that the employee was on the employer’s premises when she fell. The compensation judge also determined that the employee had failed to establish that in crossing the plaza she was at a risk of injury greater than the general public. The compensation judge concluded that the employee’s injury of April 25, 2011, did not arise out of her employment, and he denied the claim.
The employee has appealed from the determination that she was not at an increased risk of injury as the result of her employment at the time of her injury, and from the denial of her claim for benefits. The employer and insurer have cross appealed the determination that the employee was injured while on the employer’s premises.
A personal injury is compensable if it is one “arising out of and in the course of employment,” but an employee is not covered for an injury “except while engaged in, on, or about the premises where the employee’s services require the employee’s presence.” Minn. Stat. §§ 176.021, subd. 1, and 176.011, subd. 16. Accordingly, an injury that happens while an employee is going to or from work is generally not compensable. Swanson by Swanson v. Fairway Foods, 439 N.W.2d 722, 41 W.C.D. 1010 (Minn. 1989).
Exceptions exist to this general rule. In Simonson v. Knight, 174 Minn. 491, 493, 219 N.W. 869, 869, 5 W.C.D. 114, 115 (1928), the court dealt with the case of a cook who fell in an excavation behind the restaurant in which she worked as she was approaching the rear door of the restaurant to begin her shift. The court stated:
[B]ut where, as here, the cause of injury is found in a hazard to which in the main, only employees are subject and it is in the building where the employment goes on or on the premises of the employer immediately adjacent thereto, we think a case of compensation is made. The controlling idea is that the hazard is localized on and peculiar to the place of employment rather than detached therefrom and so generalized to the community at large. In such a case the risk is referable to the employment rather than anything outside and beyond it.
Following Simonson, a number of decisions have held that an employer has an obligation to provide safe ingress and egress to and from its premises for its employees, and an injury which occurs during ingress or egress is considered to have arisen out of employment. Nelson v. City of St. Paul, 249 Minn. 53, 81 N.W.2d 272, 19 W.C.D. 120 (1957); Snickers v. Fingerhut Corp., slip op. (W.C.C.A. May 28, 1990). There are issues to consider in applying ingress/egress. The injury must occur within a reasonable period before or after the employee’s hours of work. Johnson v. Ricci’s of Hugo, No. WC05-146 (W.C.C.A. Sept. 15, 2005). That issue does not arise in the present case, since Ms. Cummings was injured shortly after she finished work.
The second issue is the one raised in Simonson; the ingress and egress to and from the employer’s premises creates a special hazard to employees not encountered by the general public. A state employee’s fall on a public sidewalk on her route to the building in which she worked was held not compensable by the court in Satack v. State, Dept. of Public Safety, 275 N.W.2d 556, 558, 31 W.C.D. 260, 263 (Minn. 1978). The court stated, “it was a route used by the employee in common with members of the general public and the hazard faced by her of falling on the winter ice or snow was not unlike the hazard faced by the general public.”
The employer and insurer argue in their cross appeal that the holding in Satack applies to the present case. They note that the employee had walked for some distance out of the Ecolab building, had crossed the plaza, and was descending steps to the sidewalk when she was injured. They argue that the employee was at no greater risk of injury than any member of the general public using the plaza.
In response, the employee claims that case law supports a conclusion that the employer’s premises may include public property, such as the plaza in the present case, when use of the public property is mandatory for ingress and egress from the work site. She cites to Ludwig v. Farmers’ Shipping Ass’n, 181 Minn. 90, 231 N.W. 803, 6 W.C.D. 236 (1930) and Johannsen v. Action Constr. Co., 264 Minn. 540, 119 N.W.2d 826, 22 W.C.D. 400 (1963). A review of these cases, however, indicates that in each of those cases, while the employee was in a public space when injured, it was also a space which represented a particular hazard to employees. In Ludwig, the road on which the employee was injured went only to the employer’s premises, and in Johannsen, the main users of the street were the employee and his co-workers.
We do not necessarily disagree with the employee’s contention that traversing the steps at the plaza represented an increased risk of injury over simply being able to walk on a flat surface. The question here, though, is whether the employee was at a greater risk in using the steps than would have been true for a member of the general public. On this point, the compensation judge concluded in Finding 9 of his decision that “the employee failed to demonstrate by a preponderance of the evidence that her route across the plaza from the Ecolab building to the public sidewalk exposed her to an external hazard or an increased risk of injury in comparison to the risk posed to members of the general public.” While the employee argues that her use of the plaza was the only way for her to leave work, even if that were so, there is no showing as to how her use of that public space subjected her to a greater risk than the general public.
Given this determination by the compensation judge, we conclude that the compensation judge erred in concluding the employee’s injury occurred on the employer’s premises but was correct in denying the employee’s claim per Satack. We affirm the compensation judge’s order.
Since our conclusion here is dispositive of the employee’s claims, we do not consider the issues raised in the employee’s appeal.