CHAD A. GILBERT, Deceased Employee, by JENNIFER NAGEL GILBERT, Employee/Appellant, v. INDEPENDENT SCH. DIST. 615, SELF-INSURED/CCMSI, Employer.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 23, 2013
ARISING OUT OF & IN THE COURSE OF. Where the employee’s cause of death was unexplained and substantial evidence supports the compensation judge’s determination that the employee was not in the course of his employment at the time of his death, the compensation judge’s denial of the claim for benefits is affirmed.
Determined by: Stofferahn, J., Hall, J., and Milun, C.J.
Compensation Judge: Peggy A. Brenden
Attorneys: Howard S. Carp, Fishman, Carp, Bescheinen, Bolter & Van Berkom, Minneapolis, MN, for the Appellant. Thomas L. Cummings, Jardine, Logan & O’Brien, Lake Elmo, MN, for the Respondent.
DAVID A. STOFFERAHN, Judge
The employee’s representative appeals from the compensation judge’s determination that the employee’s death did not arise out of and in the course of employment, and from the denial of dependency benefits. We affirm.
Chad Gilbert, the employee, began working for the St. Paul school district in March 2010 as a temporary full-time custodian. He worked at a number of schools and on July 7, 2010, was assigned to work at Washington Junior High School [Washington].
During the summer, when school was not in session, a number of repair and remodeling projects were done in the schools, often by outside contractors. In July 2010, the projects at Washington included asbestos abatement and carpet installation.
When the employee reported to the Washington School on July 7, his scheduled hours were from 8:00 a.m. to 4:30 p.m. One of the employee’s assigned duties that day was to secure the building before he left. This meant, in part, making sure any contractors in the building were gone. His supervisor worked until 2:30 so at the beginning of the day, he took the employee around the building to show him what would need to be done when the building was secured at 4:30. Mr. Gilbert was then given the task of shampooing the carpet in one of the classrooms. The supervisor last saw the employee shortly after lunch. There was testimony that it was not uncommon for a contractor to ask a custodian to stay somewhat later so that work could be finished that day. There was also evidence that extending work hours resulting in overtime had to be approved by the employee’s supervisor and a request by a contractor to work past the time scheduled for closing a school building had to be approved by the school district.
The employee did not leave the school building at 4:30. The evidence did not establish a reason for this action. The employee did not request permission to work past 4:30, and there was no evidence of a contractor working past that time. There are security cameras at the school building that are motion activated. A school district employee reviewed the recordings from those cameras and compiled a DVD that showed activity in the building. This DVD was placed in evidence at the hearing.
The employee appears on the DVD on an intermittent basis between 3:31 p.m. and 7:56 p.m. The employee is shown a few times walking in a hallway. In one instance the employee was standing motionless for almost 10 minutes in a hallway, and later, he was sitting for almost 30 minutes at a student desk in the hallway. After he had sat for a time, he is showed at 7:49 p.m. moving the student desk at which he had been sitting into a classroom. A few minutes later, after walking in the hall again, he enters the same classroom. He does not appear on camera again after 7:56 p.m.
Mrs. Gilbert, the employee’s widow, testified that she was not surprised when the employee was not home shortly after 4:30 since the employee would sometimes go to a car parts store or visit his father. She went to bed around 6:15 p.m. because of a headache, and when she woke up around 3:00 a.m., the employee was still not home. She got up and drove to the school to see if he was still there.
When Mrs. Gilbert arrived at the school, she found the garage door open and a light on in the garage. The door into the school was unlocked and she entered the school. She did not see the employee and when motion activated lights came on in the hallway; she realized that she was probably being viewed on a security camera. She called the school district security office and the St. Paul Police were notified and responded.
The police officers arrived a few minutes after her call and found the employee in a classroom, the classroom he was seen entering at the end of his appearances on camera. It should be noted that this was not the classroom where the employee had been requested to shampoo the carpet. The employee had died sometime earlier and was found lying face down. The student desk he had carried into the room was on its side.
Mr. Gilbert was 38 years old when he died. He had a medical history that included diabetes, hypertension, elevated cholesterol levels, and obesity. He had also been diagnosed as having a pituitary gland tumor requiring surgical removal in 1993 and hormone replacement therapy since then. Before he began his employment with the school district, he had a physical examination and there were no restrictions in his ability to work.
An autopsy was done by the medical examiner. The conclusion as to immediate cause of death was “no anatomic cause of death.” Hypertension was identified as “other contributing conditions.”
In August 2010, the employee’s representative filed a claim petition alleging that the employee’s death on or about July 7, 2010, arose out of and in the course of his employment with the school district and alleging that dependent benefits were due and payable. In its answer, the school district denied that the employee’s death arose out of and in the course of his employment with the school district.
For its defense in the workers’ compensation claim, the employer had the employee’s situation evaluated by Dr. Lindsey Thomas. Dr. Thomas is staff pathologist at Regina Medical Center in Hastings, is the medical examiner for a number of Minnesota counties, and is a consultant to coroners in several counties in Minnesota and Wisconsin. Dr. Thomas reviewed information from the autopsy, including microscopic slides, medical records, the police report with scene photographs, and the video from the security cameras.
Dr. Thomas prepared a report dated January 9, 2012, and provided a deposition on June 26, 2012, in which she set forth her opinions. On the issue of the probable cause of the employee’s death, Dr. Thomas stated, “[I]t is my opinion, to a reasonable degree of medical certainty and based on my training and experience, that the cause of Mr. Gilbert’s death was natural causes. He could have died as a result of complications of his panhypopituitarism as there are many metabolic abnormalities that may arise as the result of this condition. In addition, the scarring and enlargement of Mr. Gilbert’s heart predisposed him to a sudden cardiac death. Neither of these natural causes of death is related to his janitorial work.”
In her deposition, Dr. Thomas stated that the security cameras show that the employee “was wandering around and appeared just not normal.” She said the employee’s actions were consistent with someone experiencing a metabolic disturbance and that this situation would be consistent with his pituitary gland condition and could have led to cardiac arrhythmia, causing his death.
Dr. Mary Ann Sens evaluated this matter on behalf of the employee’s representative. Dr. Sens is with the pathology department at the University of North Dakota’s medical school, is medical examiner for a number of counties in northwestern Minnesota, and is the coroner for Grand Forks County in North Dakota. Dr. Sens reviewed the same material as Dr. Thomas, and also reviewed Mrs. Gilbert’s deposition and Dr. Thomas’s report. Dr. Sens prepared a report dated January 10, 2012, and also provided a deposition for the hearing. Dr. Sens disagreed with the proposition that the employee’s panhypopituitarism was the likely cause of the employee’s death since the medical records showed he had received appropriate medical care for that condition. Dr. Sens’ opinion was that the cause of death was “multifactorial.” She noted that the overturned desk and the abrasions that were found on the employee’s face suggested that he might have been standing on the desk, fell, and the trauma of a fall “could have resulted in sufficient cardiovascular stress to produce a fatal arrhythmia.” She concluded that the death should be described as “unclassified” because of the circumstances of his death.
The claim petition was heard by Compensation Judge Peggy Brenden on June 28, 2012. In addition to the reports and depositions of Drs. Thomas and Sens accompanied by the information reviewed by the doctors, the compensation judge considered the testimony of Mrs. Gilbert and a number of witnesses who testified as to the employee’s job and hours at work. In her decision, the compensation judge concluded that the preponderance of the evidence failed to establish that the employee’s death arose out of or in the course of his employment. The employee’s representative appeals the compensation judge’s decision.
To be compensable, a personal injury or death must arise out of and in the course of employment. Minn. Stat. § 176.021, subd. 1. The phrase “arising out of” is generally considered as requiring a causal connection between the injury or death and the employee’s work activity. “In the course of” is usually construed as requiring that the activity of the employee at the time of injury or death is connected to the employment relationship between the employer and the employee. Gibberd v. Control Data, 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988). However, a consideration of whether an injury arises out of and in the course of employment is not an application of two tests but is instead a single question of work-connectedness with the two phrases being elements of that question of work-connectedness. In reviewing the question of work-connectedness, this court applies a balancing test to the two elements. Bohlin v. St. Louis County, 61 W.C.D. 69, 79 (W.C.C.A. 2000). Where the “arising out of” element is weak but the “in the course of” element is strong, applying the balancing test may result in a finding of compensability. Noggle v. Lazer Commc’ns, No. WC04-216 (W.C.C.A. November 10, 2004); Khani v. Mesaba Aviation, Inc., slip op. (W.C.C.A. May 21, 2002).
The employee’s representative acknowledges that the cause of the employee’s death is unknown and there is no evidence that his death arose out of his employment. The employee’s representative argues that in the case of an unexplained death in the course of employment, there should be a presumption of compensability. Applying that presumption in this case, according to that argument, would require reversing the compensation judge and awarding dependency benefits. We will not decide whether a general presumption might be appropriate or even desirable because the evidence in this case would not support the application of such a presumption.
The compensation judge found that the preponderance of the evidence did not support a determination that the employee was in the course of his employment at the time of his death. We find substantial evidence to support that determination. An employee is not in the course of employment if the employee’s activities at the time of injury are not reasonably incidental to employment. Johnson v. Ricci’s of Hugo, No. WC05-146 (W.C.C.A. Sept. 15, 2005).
The employee’s work schedule for July 7, 2010, was from 8:00 a.m. to 4:30 p.m. No overtime was requested by the employee and no overtime was approved by his supervisor. At the hearing, the employee’s representative presented evidence that at times, a request to authorize overtime might not be made when a contractor asked a custodian at the last minute to stay late so that a day’s work could be finished. It was argued that there was a possibility that on July 7, such a request was made to the employee and that he stayed late to accommodate the contractor. There was no evidence to support that argument. The school district required contractors to obtain permission from the school district to work in a building beyond the usual hours. There were two contractors at the school site on July 7, and both of those contractors logged out of the building before 4:30.
It is also important to note, as did the compensation judge, that this case does not involve a question of the employee working late for an hour or so. The employee’s death occurred after 8:00 p.m., more than three and one-half hours after he was supposed to be done for the day. No reason related to his employment has been advanced for the employee’s presence at the school for that period of time.
Further, the security cameras do not show the employee to be engaged in any work activity after 4:30 on July 7. His assignment for that day had been to shampoo carpeting in a classroom on the second floor, and this assignment was not completed. Most of the employee’s activity after 4:30 p.m. as shown on the security cameras consisted of walking in the hall or of sitting and standing immobile for periods of time. While the employee was shown carrying a student desk into the classroom where he was later found, there is no indication that this was done for work purposes. There is simply no evidence that the activity of the employee as depicted on the security cameras was related to his employment.
At the hearing, and again on appeal, the employee’s representative contended that the video exhibit was incomplete and there was a scene, missing from the exhibit, that appeared to show the employee talking to someone. It is suggested that this provides an employment-related reason for the employee’s presence after hours. In response, the employer presented evidence that all of the recordings from the security cameras that showed anyone after hours on July 7 were placed on the DVD presented to the court. The compensation judge found the argument of the employee’s representative to be “highly unlikely” and did not accept it. Our review of this evidence does not compel us to conclude that the compensation judge erred on this issue.
We conclude substantial evidence supports the compensation judge’s denial of dependency benefits. The compensation judge’s decision is affirmed.