JAMES B. KHANI, Employee, v. MESABA AVIATION, INC., and INSURANCE CO. OF THE STATE OF PA./AIG CLAIM SERVS., INC., Employer-Insurer/Appellants, and ABBOTT NORTHWESTERN HOSP. and ORTHOPEDIC MEDICINE & SURGERY, LTD., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 21, 2002
HEADNOTES
ARISING OUT OF & IN THE COURSE OF. The compensation judge apparently concluded that the condition of the airport tarmac increased the risk of injury to the employee and properly applied an Aincreased risk@ test. Substantial evidence supports the compensation judge=s determination that the employee proved by a preponderance of the evidence that his left knee injury arose out of and in the course of his employment.
Affirmed.
Determined by: Johnson, C.J., Wilson, J. and Pederson, J.
Compensation Judge: Bradley J. Behr
OPINION
THOMAS L. JOHNSON, Judge
The employer and insurer appeal the compensation judge=s finding that the employee=s left knee injury on July 20, 2000, arose out of his employment. We affirm.
BACKGROUND
James B. Khani, the employee, began working as a customer service agent for Mesaba Aviation, Inc., the employer, in November 1988. His job duties included loading and unloading luggage and directing ground airplane traffic. On July 20, 2000, the employee unloaded luggage from an airplane. When he finished, the employee stepped down off the luggage cart and was walking toward a second airplane when his left knee suddenly twisted and he fell to the tarmac. The employee=s injury was a fracture of the lateral femoral condyle osteochondral of the left knee which ultimately necessitated surgery. Before seeking medical attention, the employee filled out an Incident Written Statement in which he stated: AWalking on ramp one knee turned out and popped out feel [sic] to ground in pain.@ (Resp. Ex. 1.)
After preparing the incident report, the employee was taken to the Airport Clinic where he saw Dr. David C. Zanick. The doctor=s office note states the employee was Aworking for Mesaba on the ramp and walking on the ramp, his left knee twisted outward and he developed severe pain extending from the knee to the thigh up into the hip.@ (Pet. Ex. C.) On July 21, 2000, the employee saw Dr. Steven A. Moen on referral from Dr. Zanick. Dr. Moen recorded a history that the employee was Awalking, caught his foot and his kneecap >dislocated=.@ (Pet. Ex. B.) On August 8, 2000, the employee saw Dr. Kayvon S. Riggi, who later performed surgery on the employee=s left knee. The employee reported no previous injury to his left knee. The doctor recorded the following history: AWhile unloading a plane, he sustained a sudden twisting injury and fell to the ground.@ (Pet. Ex. A.) On January 8, 2001, the employee was examined by Dr. James Gannon at the request of the insurer. In his report, the doctor stated: AMr. Khani states that he had just finished loading a plane, when he turned and began walking on the tarmac toward another plane. It was at this point that Mr. Khani abruptly fell. He denied having sustained an injury to his knee or trauma which caused this fall, but relates that possibly the uneven nature of the tarmac resulted in this sudden fall.@ (Resp. Ex. 2.) The doctor reported the employee had no prior history of left knee difficulties and noted no medical records existed documenting treatment for left knee problems. The doctor concluded the employee sustained an acute injury to his left knee which was not associated with any pre-existing disease. Dr. Gannon further concluded the employee=s fall resulted in the osteochondral fracture fragment.
The employee filed a claim petition seeking payment of wage loss and medical benefits. The employer and insurer admitted the employee sustained an injury while at work, but denied the injury arose out of the employment. At the hearing, the employee testified he Atripped and fell forward. My knee twisted and I fell forward hitting the ground.@ He testified he recalled catching his foot on something, but AI don=t know what it is exactly.@ When asked whether the tarmac was a smooth, flat surface, the employee stated: AThere=s lots of altercations on the tarmac as far as divots from airplane stands and erosion. There=s oil from planes, water. There=s construction going on at the time and there is lots of debris and rocks from construction. It=s not generally a flat smooth surface.@ (T. 25.) When asked whether the employee caught his foot in any of these irregularities on the tarmac, the employee stated AI believe so.@ (T. 26.)
On cross-examination, counsel for the employer and insurer questioned the employee about his deposition testimony given on November 30, 2000.[1] The portions of the deposition testimony admitted into evidence include the following questions and answers:
Q. Okay. So you were walking on the tarmac towards the other airplane?
A. Correct.
Q. And what happened?
A. I fell abruptly and couldn=t get up. I thought I could get up and I tried to and I fell back.
Q. Okay. Was the tarmac flat?
A. It=s a paved surface that has - - that varies in spots due to the use of airplanes.
Q. Okay. Do you know what caused you to fall?
A. No. It happened all so suddenly. I was walking and all of a sudden I fell to my knees.
Q. Had you had any problems with your knees earlier that day?
A. I=ve never had any problems with my knees ever.
Q. So you hadn=t had any problems earlier that day?
A. No.
Q. Was there anything about unloading the first airplane that was unusual?
A. Not that I recall.
Q. Do you recall twisting your knee before you fell?
A. All I know is I was walking and then, boom, I was on the ground. It=s a very busy atmosphere so.
(Resp. Ex. 4.)
In his Findings and Order, the compensation judge found the Aemployee=s left knee injury occurred during his normal work hours, while he was engaged in activities incidental to his employment at his assigned work site.@ (Finding 1.) This finding is unappealed. The compensation judge further found the Aemployee proved by a preponderance of the evidence that his 7/20/00 left knee injury arose out of and in the course of his employment.@ (Finding 3.) The judge also found the employee was a credible witness. (Finding 11.) The latter two findings are appealed.
DECISION
1. Positional Risk Test
The employer and insurer first argue the compensation judge erroneously relied on Duchene v. Aqua City Irrigation, 58 W.C.D. 223 (W.C.C.A. 1988) in concluding the employee=s injury was one arising out of his employment. The appellants contend the judge, in reliance on the Duchene case, applied a Apositional risk@ test rather than the Aincreased risk@ test. In support of this argument the appellants point to the compensation judge=s citation of Duchene and his statement in his memorandum that the Aemployee need not be able to explain precisely how his injury occurred in order to prove it to be compensable under Minnesota workers= compensation law.@ (Mem. at 6.) Accordingly, the appellants seek a reversal of the compensation judge=s award of benefits. We are not persuaded.
For an injury to Aarise out of@ the employment, there must be a causal connection between the employment and the injury. Lange v. Minneapolis-St. Paul Metro. Airport Comm=n, 257 Minn. 54, 99 N.W.2d 915, 21 W.C.D. 61 (1959). The requisite causal connection Aexists if the employment, by reason of its nature, obligation or incidence 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 Kirchner v. County of Anoka, 339 N.W.2d 908, 911, 36 W.C.D. 335, 337 (Minn. 1983), the supreme court stated the Aarising out of requirement requires some showing of a hazard that increases the employee=s exposure to injury beyond that of the general public.@ The burden of proving that a personal injury arose out of the employment is on the employee. Minn. Stat. ' 176.021, subd. 1.
As the appellant notes, the Duchene case has created some confusion in the law regarding the arising out of test set forth at Minn. Stat. ' 176.011, subd. 16. In subsequent decisions, however, this court has held the Duchene case does not support the unqualified application of a positional risk test. See e.g. Otto v. Midwest of Cannon Falls, 59 W.C.D. 25 (W.C.C.A. 1999); Bohlin v. St. Louis County, 61 W.C.D. 69 (W.C.C.A. 2000); Cauwels v. Schotts, Inc., 61 W.C.D. 285 (W.C.C.A. 2001); and Schreier v. Bruning Constr., 61 W.C.D. 507 (W.C.C.A. 2001). Rather, the primary test for determining whether an injury arises out of the employment is the increased risk test. As this court stated in Bohlin, if an unqualified positional risk doctrine were adopted, A[e]very injury would be presumptively compensable so long as it occurred at work. Under such a standard, all an injured employee need prove is that the injury occurred while the employee was on the work premises. The employer would then be obligated to introduce evidence to rebut the presumption of compensability. Such a result would remove from the employee proof of the >arising out of and in the course of= requirement of Minn. Stat. ' 176.011, subd. 16 and place the burden of proof on the employer. This is contrary to Minn. Stat. ' 176.021, subd. 1.@
While we agree the Duchene case is not controlling here, we do not agree the judge=s decision must be reversed. In his memorandum, the compensation judge stated it was the employee=s Ageneral testimony that while walking on his way from one plane to another, his foot caught or tripped on the airport tarmac, causing his left knee to twist. He fell and experienced immediate and excruciating pain.@ (Mem. at 6.) The compensation judge also found the employee=s explanation of how the injury occurred contained in the incident statement was consistent with his trial testimony. This testimony cited by the compensation judge relates to whether the employment was the source of an injury-producing hazard. Finally, the compensation judge stated the employee=s claim was supported by the preponderance of the evidence. The compensation judge apparently concluded the condition of the tarmac increased the risk of injury to the employee. Thus, the compensation judge applied the increased risk test rather than a positional risk test.
2. Substantial Evidence
The appellants next argue the compensation judge=s decision is unsupported by substantial evidence. They contend the employee=s accounts of how his injury occurred on direct examination, cross-examination and in the incident report are different and conflicting. Although the compensation judge found the employee was a credible witness, the appellants assert the compensation judge failed to state what evidence he found credible. The appellants assert the employee failed to prove any increased risk connected to the employment and seek a reversal of the award of benefits. We decline to do so.
The Aarising out of@ and Ain the course of@ requirements of Minn. Stat. ' 176.011, subd. 16, are not independent, but are elements of a single test of work-connection. United Fire & Casualty Co. v. Maw, 510 N.W.2d 241 (Minn. Ct. App. 1994). In Bohlin, Otto, Cauwels, and Schreier, this court adopted Larson=s balancing test.[2] In any given case, a certain minimum level of work-connection must be proven. Where the Acourse@ test is weak but the Aarising@ test is strong, the necessary minimum quantum of work-connection may be met. Similarly, where the Acourse@ test is strong but the Aarising@ test is weak, the work-connection may also be met. Where both tests are weak, however, insufficient connection to the employment may exist. As this court stated in Bohlin, A[w]hen 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, 61 W.C.D. at 81.
There is no dispute the employee=s injury occurred during his normal work hours while engaged in activities incidental to his employment. The course test is, therefore, strong. Based on the employee=s testimony on direct examination that he fell due to some condition of the tarmac, the Aarising@ test is also strong. Even if, however, as the appellants argue, the Aarising@ test is weak, a reversal is not automatically mandated. Whether an injury was one arising out of and in the course of employment is a fact question for the compensation judge. This is one of those cases very close to the line. We conclude, however, the evidence is minimally sufficient to support the compensation judge=s decision and it is affirmed.