AHMED A. HASSAN, Employee/Cross-Appellant, v. SPHERION CORP. and AIG/ SPECIALTY RISK SERVS., INC., Employer-Insurer/Appellants, and UNIVERSITY OF MINN. PHYSICIANS, MN DEP=T OF HUMAN SERVS., AND REGIONS HOSP., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 9, 2003

 

 

HEADNOTES

 

APPEALS - RECORD.  Where the compensation judge made only one finding on the ultimate issue and failed to make findings regarding essential elements of either the employee=s claims or the employer and insurer=s defenses, precluding meaningful appellate review, the Findings and Order is vacated and remanded for further findings on the record.

 

ARISING OUT OF & IN THE COURSE OF - PROHIBITED ACT.  Where there was no contention an improvident or incautious act by the employee created a hazard while leaving work, the test for com­pensability set forth in Qualy v. Metropolitan Transit Comm=n, 42 W.C.D. 1040 (W.C.C.A. 1990)(relying on Elfelt v. Red Owl Stores, 296 Minn. 41, 206 N.W.2d 370, 26 W.C.D. 660 (1973)), is not applicable.  Rather, the employer and insurer allege the employee was engaged in a prohibited act.  The matter must, therefore, be remanded for consideration applying the factors appropriate to such cases.

 

Vacated and remanded.

 

Determined by Johnson, C.J., Pederson, J., and Stofferahn, J.

Compensation Judge:  James F. Cannon.

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employer and insurer appeal the compensation judge=s finding that the claimed work-related injury arose out of and in the course and scope of the employment.  The employee cross-appeals from various factual findings made by the compensation judge.  We vacate the Find­ings and Order, and remand for further findings on the existing record.

 

BACKGROUND       

 

Ahmed A. Hassan, the employee, was born in Somalia and came to the United States in September 1999.  The employee began working for Spherion Corporation, the employer, in Jan­uary 2002, at the UPS terminal in Eagan, Minnesota.  On March 9, 2002, the employee sustained an injury to his head and low back when he slipped and fell in the employer=s parking lot while exiting the employer=s premises at the end of his work shift.  The employee filed a claim petition seeking workers= compensation benefits resulting from a personal injury.  The employer denied liability for benefits, and the case was heard before a compensation judge on October 3, 2002.  In a Findings and Order filed December 16, 2002, the compensation judge found the employee=s injury arose out of and in the course of his employment and awarded workers= compensation benefits.  The employer and insurer appeal the award of benefits, and the employee cross-appeals from certain factual determinations made by the compensation judge.

 

DECISION

 

1.  Findings of Fact

 

The compensation judge made only five factual findings, one of which was that the employee=s injury on March 9, 2002 arose out of and in the course of his employment with Spherion Corporation.  In a lengthy memorandum, the judge then reviewed the testimony of the witnesses and resolved certain factual disputes.  We conclude the compensation judge=s factual findings are insuf­ficient to permit this court to perform our appellate function.  We, therefore, vacate the compensation judge=s decision and remand the case to the judge.

 

AThe compensation judge=s decision shall include a determination of all contested issues of fact and law.@  Minn. Stat. ' 176.371.  A compensation judge must scrupulously assure the findings of fact are sufficiently detailed and specific to enable a meaningful appellate review.  Northwest Publications, Inc. v. Anderson, 259 N.W.2d 254 (Minn. 1997).  Findings of fact should also include as many subsidiary facts as are necessary to disclose to the appellate court the basis upon which the compensation judge reached the ultimate conclusion(s).  Woodrich Constr.  Co. v. State of Minn., 177 N.W.2d 563 (Minn. 1970).  In the findings of fact, the compensation judge must weigh the evidence, determine the credibility of witnesses, choose among contested facts and draw the appropriate inferences.  The judge=s decision shall include a memorandum Aonly if necessary to delineate the reasons for the decision or to discuss the credibility of witnesses.  A memorandum shall not contain a recitation of the evidence presented at the hearing but shall be limited to the compen­sation judge=s basis for the decision.@  Minn. Stat. ' 176.371.  A memorandum is not, therefore, a substitute for findings of fact.

 

The compensation judge made only one finding on the ultimate issue:  AThe employee sustained an injury on March 9, 2002, which arose out of and in the course and scope of his employ­ment with the employer, Spherion Corporation.@  (Finding 2.)  This single finding fails to provide sufficient specific factual details regarding essential elements of either the employee=s claims or the employer and insurer=s defenses to permit a meaningful appellate review.  Accordingly, we vacate the decision of the compensation judge.  The case is remanded to the judge to make specific and detailed factual findings and order, on the existing record, consistent with this decision.

 

2.  Applicable Law

 

A personal injury is defined as an Ainjury arising out of and in the course of employ­ment.@  Minn. Stat. ' 176.011, subd. 16.  The Aarising out of@ language is expressive of the require­ment that there be a causal connection between the employment and the source of the injury-pro­ducing hazard.  The Ain the course of@ language refers to factors of time and place, and that an injury to be compensable must arise within the time and space boundaries of the employment.  Nelson v. City of St. Paul, 249 Minn. 53, 81 N.W.2d 272, 19 W.C.D. 120 (1957).  The time and space boundaries are, however, expanded to cover an employee during a reasonable time before the com­mencement of work or after work has ceased for the purpose of ingress to and egress from the place of employment.  Johannsen v. Acton Constr. Co., Inc., 264 Minn. 540, 119 N.W.2d 826, 22 W.C.D. 400 (1963).  Similarly, the premises of the employer may cover an area greater than the actual working place of the employee and may include employer-owned parking lots.  Thus, as a general rule, an employee who is injured on an employer-owned parking lot while in the process of entering or leaving the employer=s premises is within the course of employment.  See, e.g.,  Merrill v. J.C. Penney, 256 N.W.2d 518, 30 W.C.D. 278 (Minn. 1977).

 

In this case, however, the employer and insurer argued, and the compensation judge concluded, that Qualy v. Metropolitan Transit Comm=n, 42 W.C.D. 1040 (W.C.C.A. 1990), governs the result.  In Qualy, the employee, while leaving the work premises, pretended he was about to be hit by an approaching MTC bus.  As he jumped out of the way, he tripped on an unpainted curb, fell and dislocated his shoulder.  On appeal, this court denied the employee=s claim for benefits based upon a four-factor test contained in Elfelt v. Red Owl Stores, 296 Minn. 41, 206 N.W.2d 370, 26 W.C.D. 660 (1973).  Under the Elfelt test, an injury while leaving the employer=s premises is not compensable where:  (1) the employee=s injury occurred while the employee was not working; (2) the employer provided the employee with a reasonable means of egress; (3) the employee acted improvidently; and (4) it was the employee=s improvident act which created a hazard in an otherwise safe route.

 

In both Elfelt and Qualy, the employee was exiting the employer=s premises using an otherwise reasonable means of egress.  However, each employee=s improvident act created a hazard on an otherwise safe route which caused the employee=s injury.  Under such circumstances, the court concluded the employee=s improvident act took the employee outside the scope of employment.  In Qualy, this court stated the four-factor Elfelt case provides the framework for determining Awhether an injury sustained as a result of an incautious act while leaving work is compensable.@  Id. at 1045.  This is not such a case.  There is no contention that an incautious act by the employee caused the injury.  Rather, the employer and insurer argue the employee failed to use a safe egress route.  We conclude the Elfelt and Qualy test is not applicable in this situation. 

 

The employer and insurer assert they provided the employee with a safe means of egress from the premises but the employee voluntarily chose a more dangerous route.  Accordingly, they contend the employee=s injury is not covered under the workers= compensation act as a matter of law.  We disagree.  We find no basis in the statute or case law for the appellant=s broad proposi­tion of law.

 

Professor Larson classifies prohibited going and coming activities under misconduct.  In general, Amisconduct of the employee, whether negligent or wilful, is immaterial in compensation law, unless it takes the form of deviation from the course of employment.@ Larsons, Workers= Compensation Law, ' 32.  Whether an employee=s misconduct is sufficient to remove the employee from the course of employment must be judged on the facts of each particular case.  We, therefore, reject the appellant=s argument that a failure to use a designated means of egress mandates a denial of workers= compensation benefits.

 

In the present case, the appellants contend the employee was instructed to use either of two specific doors when entering and exiting from the building and was prohibited from using any other exits.  The employer and insurer contend the employee violated this instruction and such vio­lation caused his injury.  Thus, the issue is whether the employee is barred from receiving workers= compensation benefits because the employee=s injury resulted from the employee=s violation of a prohibited act.  In resolving this issue, the compensation judge should consider the following factors:  (1) whether the employee knew of the prohibition; (2) whether the prohibition was customarily observed; (3) whether the employer took reasonable steps to enforce the prohibition;  (4) the reason for the prohibition; (5) whether it was reasonably foreseeable by the employer that the expressly prohibited act would occur; and (6) whether the performance of the prohibited act was unreasonably dangerous.  See, for example, Otto v. Midwest of Cannon Falls, 59 W.C.D. 25 (W.C.C.A. 1999); Johnson v. El Mac Landscaping, Inc., 51 W.C.D. 75 (W.C.C.A. 1994); Lowry v. Interlock Decor­ating, Inc., mem. op. (W.C.C.A. Sept. 22, 1995).