PATRICIA A. SMITH, Employee, v. HOLY FAMILY CHURCH/DIOCESE OF WINONA,  SELF-INSURED/BERKLEY RISK ADM=RS CO., Employer/Appellant, and MAYO FOUND. and HEALTHPARTNERS, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 30, 2006

 

No. WC05-240

 

HEADNOTES

 

ARISING OUT OF & IN THE COURSE OF - SUBSTANTIAL EVIDENCE.  Where the record reasonably supported the conclusion that employee=s fall as she stepped on a door threshold was causally related to her employment, substantial evidence supported the compensation judge=s conclusion that the employee=s resulting injury arose out of her employment.

 

Affirmed.

 

Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.

Compensation Judge: John Ellefson

 

Attorneys: Jeremy R. Stevens, Rochester, MN, for the Respondent.  M. Shannon Peterson, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for the Appellant.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The self-insured employer appeals from the compensation judge=s determination that the employee=s injury arose out of and in the course and scope of her employment with the employer.  We affirm.

 

BACKGROUND

 

Patricia A. Smith, the employee, suffered an injury to both legs on May 18, 2004.  At the time of her injury, she was working for Holy Family Church, Diocese of Winona.  On that date, the employer was self-insured for workers= compensation insurance; Berkley Risk Administrators Company, LLC, served as administrator for the employer=s insurance coverage.  The employee began working for the employer on a part-time basis in 1990, and by 1999 she began working essentially full-time as a custodian, working approximately 36 to 40 hours each week.  She performed cleaning and maintenance tasks, and worked at two job sites: Holy Family Church in Kasson, Minnesota, and Christ the King Church in Byron, Minnesota.  The employee was 51 years old at the time of her injury and earned a weekly wage of $ 263.96.

 

On May 18, 2004, the employee fractured her right leg as a result of a fall at work and sustained an injury to her left leg.  Before that injury, the employee had received extensive medical treatment for conditions and injuries to both lower extremities.  On June 11, 1995, the employee fractured her left ankle, following which she experienced chronic pain, limited motion and difficulty with ambulation. Her medical records list multiple falls due to Agiving way@ of the lower extremities.  On October 29, 2002, the employee fell off her front steps at home and sustained a comminuted trimalleolar fracture of the right ankle, which was treated with open reduction and internal fixation.  Post-surgery, the employee used a wheelchair for a period of time and later used a cane.  Her records show poor wound healing of her right ankle, and she later experienced edema and decreased range of motion of her right ankle.  The employee was released for part-time work by April 1, 2003, and within three weeks she was released to return to work on a full-duty basis.  On December 19, 2003, at her last treatment post-operative examination, the employee reported that A[o]verall she has been doing okay@ but that she experienced some pain and  occasionally used a cane.  In addition to those two ankle fractures, the employee has a history of the following diagnoses: tight heel cords, Kohler=s disease as a child, genu valgum, degenerative joint disease of the left knee documented on x-rays at a very young age, bilateral knee pain, and plantar fasciitis of the left heel.

 

On May 18, 2004, the employee was injured when she fell while entering the Holy Family Catholic Church to begin work.  That church has two sets of doors at its front entrance, an outer set of heavy doors and a second inner set of glass doors with a metal threshold that rises approximately 2 to : of an inch above the floor.  As she walked into the church entrance, the employee was carrying a set of keys and her purse with her right hand and arm, and a large bag of towels and rags and a lunch box with her left hand.^[1]  She pulled open the first set of doors.  She then pulled open the second set of doors and, as she passed through the second set of doors, she stepped on the metal threshold with her right foot.  As she walked through the doors, she fell onto the floor, breaking her right leg as a result of the fall.

 

The employee testified that when she stepped on the threshold, she could not see it because of the items she was carrying, and that because she was carrying those items, she was unable to use her hands to brace herself after she lost her balance and fell.  After falling, the employee was unable to get up, and so used her cell telephone to call her husband for assistance.  The employee=s husband and a church co-worker arrived at approximately the same time to help her, and ultimately the employee was taken by ambulance to St. Mary=s Hospital in Rochester, Minnesota.  She was diagnosed with a right proximal tibia fracture and compartment syndrome, and underwent surgery two days later to treat her fracture.  The employee has continued to treat through the Mayo Clinic in Rochester, Minnesota, where she underwent extensive physical therapy and post-surgical treatment, but her symptoms have continued and she remains restricted from work.

 

The employee has been unable to return to work since this injury, due to the nature of her custodian job and her physical work restrictions related to her right leg condition.  The employer initially admitted primary liability for the employee=s injury, and began paying temporary total disability benefits.  On June 3, 2004, the employee underwent an initial rehabilitation consultation, following which QRC Pam Tegelhutter determined that the employee was eligible for rehabilitation services.  The QRC initially provided  assistance in the form of medical management.  Upon review of the employee=s job activities, the QRC determined that employee=s custodian job was heavy in nature and required a great deal of walking and the ability to be flexible; she also learned from the employer that it had no light-duty work available for the employee.  According to a rehabilitation plan amendment filed on January  20, 2005, the QRC determined that the employee most likely would not be able to return to her custodian job and therefore job search, job seeking skills and job development and placement services would be provided.

 

On December 14, 2004, the employee underwent an independent examination with Dr. K. Stephen Kazi.  In his report dated February 14, 2005, Dr. Kazi outlined the history provided by the employee and a summary of the medical treatment she had undergone prior to her work injury.  Dr. Kazi diagnosed the following:

 

1.         Fracture, right proximal tibia and fibula with associated compartment syndrome; status post-compartmental release and open reduction and internal fixation of fracture, proximal tibia.

 

2.         Chronic weakness, both lower extremities, right more than left.

 

3.         Status post-fracture, both ankles, with associated equinus deformities and restricted subtalar motion.

 

4.         History of degenerative joint disease, left knee.

 

5.         History of type II diabetes with possible peripheral neuropathy [initially diagnosed while the employee was hospitalized following her May 18, 2004, injury].

 

6.         Osteoporosis.

 

Dr. Kazi concluded that at the time of her work injury, the employee=s knees gave out and she fell to the right.  He further concluded that, based upon the employee=s Asignificant pre-existing conditions in the lower extremities, as well as the documented history of giving way of the knees in the past, as well as on May 18, 2004,@ that the employee=s injury on May 18, 2004, was not work-related, but instead Arepresented a fall due to the chronic underlying conditions of degenerative joint disease of the knees, generalized weakness of the lower extremities, and equinus deformities of both ankles.@  Dr. Kazi felt that the employee=s medical treatment to date, following her May 2004 injury,  had been reasonable and necessary for the management of her right proximal tibia fracture.  He also recommended that the employee not return to her previous job as a custodian.  He advised that the Achronic weakness of the lower extremities necessitates use of a Lofstrand crutch, as well as the right ankle-foot orthosis.  She can only perform sedentary work in a seated position with limited walking.@  He added that, in his opinion, those restrictions are necessitated by her chronic underlying conditions and had no relationship to Aany work-related injury.@

 

The employee obtained additional neurological treatment, and complained of ongoing symptoms in her legs.  In mid-February, a consulting neurologist, Dr. J. C. Stevens, diagnosed sensory motor peripheral neuropathy and marked bilateral proximal lower extremity weakness, in addition to her osteoporosis.  Dr. Roger Spinner, neurosurgeon, later diagnosed a possible diabetic polyradiculoneuropathy, as a potential explanation for the employee=s continued symptoms and weakness in her lower extremities.

 

Based on Dr. Kazi=s opinion, the self-insured employer filed a notice of intention to discontinue workers= compensation benefits (NOID) on March 3, 2005, stating as follows:

 

Per attached Independent Medical Evaluation report, employee=s injury of May 18, 2004[,] was not work related based upon the presence of significant pre-existing conditions in the lower extremities.

 

To that NOID, the employer attached a copy of Dr. Kazi=s report.  On March 4, 2005, the employer filed a rehabilitation request, requesting that the rehabilitation plan be terminated, based on the same contention that the employee=s injury was not causally related to her work but instead was related  the presence of significant pre-existing conditions in her lower extremities.  The employee filed an objection to discontinuance and a rehabilitation response, contesting the proposed termination of rehabilitation services.  The employee also filed a separate rehabilitation request for provision for rehabilitation services.

 

On March 23, 2005, the employee underwent surgery to remove the fixator screws implanted at the time of her May 2004 right leg surgery.  On July 12, 2005, the employee was examined by Erin C. Peterson, D.O., a resident physician at the Mayo Clinic.  She reported continued weakness of her bilateral lower extremities, and numbness of her left leg below her knee.  At that time, the employee continued to require either a gait aid or a wheelchair to ambulate.  Based on an EMG taken in February 2005, Dr. Peterson diagnosed a possible sensory-predominant peripheral neuropathy.  She also diagnosed bilateral lower extremity weakness and sensory impairment, with possible diabetic lumbosacral radiculoplexus neuropathy.  Dr. Peterson concluded that the employee would not, at least in the foreseeable future, be able  to work as a custodian, and recommended a functional capacities evaluation to assist with determining employment options.

 

The rehabilitation and discontinuance issues were consolidated by the Office of Administrative Hearings, and were jointly addressed at a hearing on July 20, 2005.  Extensive medical records were submitted into evidence, as well as rehabilitation records; the employee and two co-workers testified at the hearing.  In his findings and order served and filed on August 3, 2005, the compensation judge found that the employee=s injury on May 18, 2004, arose out of and in the course and scope of her employment.  He cited to the condition of the employee=s legs, and especially her right leg, that rendered her Aless likely than an average person to be able to regain her balance if she lost her balance,@ for example, Aif she unexpectedly stepped on a raised surface or on an uneven surface.@  The judge also found that the employee=s inability to see where she was placing her feet while walking, because she was carrying the large bag of towels and rags back to work, was a factor that substantially contributed to her fall.  He concluded that:

 

The employee=s fall was not idiopathic.  The raised threshold, which was a part of the work environment, was a substantial contributing factor in causing the employee to fall.  It is unlikely that the employee would have fallen at that time if she had not unexpectedly stepped on the raised threshold.

 

Based on his findings, the compensation judge ordered ongoing payment of temporary total disability benefits, reimbursement of medical expenses to the intervenors, and provision of rehabilitation services.  The self-insured employer appeals.

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1 (2004).  Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate."  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

The self-insured employer claims that the employee=s injury did not arise out of her employment but instead was an Aidiopathic@ injury, which the employer defined as being caused by a condition personal to the employee.  For Minnesota workers= compensation purposes, a personal injury is defined as an Ainjury arising out of and in the course of employment.@  Minn. Stat. ' 176.011, subd. 16.  The Ain the course of@ requirement of the statute refers to the time, place, and circumstances of the incident causing the injury, while the Aarising out of@ requirement refers to a causal connection between that injury and the work activity, although Anot necessarily in the proximate cause sense.@  Gibberd v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988).  For an injury to arise 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, obligations or incidents 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).  Whether an injury arose out of and in the course of employment is generally a fact question for the compensation judge, Franze v. National Delivery Serv., 49 W.C.D. 148, 155 (W.C.C.A. 1993), and the burden of proof is on the employee.  Minn. Stat. ' 176.021, subd. 1.

 

In Minnesota, the primary test for determining whether an injury arises out of the employment is the Aincreased risk@ test.  Bohlin v. St. Louis County /Nopeming Nursing Home, 61 W.C.D. 69 (W.C.C.A. 2000).  This test requires a showing that the A>injury was caused by an increased risk to which the claimant, as distinct from the general public, was subjected by his or her employment.=@  Id. at 72 (quoting 1 A. Larson and L.K. Larson, Workers= Compensation Law, ' 3.00 (1999)).  As the Minnesota Supreme Court stated, A[t]he >arising out of= requirement refers to the causal connection between the employment and the injury.  This requirement requires a showing of some hazard that increases the employee=s exposure to injury beyond that of the general public.@  Kirchner v. County of Anoka, 339 N.W.2d 908, 911, 36 W.C.D. 335, 338 (Minn. 1983).  There is no requirement that the work activity be unusual or strenuous, only that the injury follow as a natural incidence of the work.  Foley v. Honeywell, Inc., 488 N.W.2d 268 (Minn. 1992).

 

In this case, there is no dispute that the employee=s injury occurred during her normal work hours on the premises of the employer.  The Acourse@ test, therefore, is satisfied.  The employer, however, denies that the employee=s fall and her resulting injury arose out of her employment.  The record contains varying descriptions of the employee=s fall.  In the emergency room chart notes prepared on May 18, 2004, there is a statement that the employee fell to her knees on her way into work.  According to a chart note prepared that same date at the St. Mary=s Hospital orthopedic department, the employee reported that she normally walks without an assistance device, but that at times she had problems with her knees Agiving out@ and that she wore an elastic brace over her right knee.  In a recorded statement given by the employee on May 28, 2004, she stated that her knee Agave out@ as she stepped on that threshold, and that she is Ausually very careful watching where [her] feet go@ because she had broken both ankles in the past.  At the hearing, the employee testified that AI stepped on [the threshold].  I felt pain.  I felt myself going forward and I felt like my legs were moving and I couldn=t catch myself.  I kind of remember touching the left hand door and I just  start[ed] falling forward and I couldn=t get my feet to - - or my knees to catch myself.@  (T. 82.)

 

The employer argues that the record shows that the employee=s injury was caused by a condition personal to the employeeBher pre-existing knee condition - - and that her employment did not increase her risk of injury.  The employer argues that there is no medical evidence that either the church door threshold or the items the employee carried caused her knees to give out or increased the risk of her knees giving out.  The employer also argues that the compensation judge erred by ignoring the medical records referring to the employee=s knees giving out and causing her to fall.  Although the employee testified that she did not trip on the threshold at the time of her injury, she also testified that she had tripped over this threshold in the past, and that on those earlier occasions she was able to regain her balance and avoid falling by grabbing the door to the left.  The employer argues that there is no evidence that the employee tripped over the threshold or that she encountered something that knocked her off-balance; the employer argues that the fall resulted from Athe failure of the Employee=s knees, and perhaps even her feet.@

 

The compensation judge concluded that stepping on the raised threshold caused the employee to fall.  He emphasized evidence in the record, including the employee=s testimony and statements, that she fell after stepping on that threshold with her right foot.  In addition, the compensation judge noted that the bag of towels the employee was carrying obscured her vision of where she placed her feet as she walked through the door.  Although the record contains references to the employee=s knees giving-way at the time of her injury, and although the employee had undergone medical treatment in the past for both lower extremities, the record also contains testimony and medical records that support the compensation judge=s conclusion that the door threshold and the items the employee was carrying at the time she fell contributed to her injury.

 

In his memorandum accompanying his findings and order, the compensation judge addressed the connection between the employee=s work and the claimed employment-related risk that caused the employee=s injury.  He stated that,

 

It is not disputed that the employee had substantial disability with her legs.  However that cuts both ways.  It supports the employer=s position that the employee could have fallen without any other apparent reason.  It also supports the employee=s position that the fall was work-related because she would be more likely to [lose] her balance when she encountered something that tended to knock her off balance.  Similarly, if she did not [lose] her balance, the disability would make her less able to regain her balance and avoid falling.

 

One thing is very consistent in the employee=s report of her fall and injury.  That is that the fall occurred when she stepped on the threshold.  The Mayo treatment notes that first report the history of the injury refer to the employee collapsing on a door threshold.  In the statement that she gave to the insurer on May 28, 2004, at her IME with Dr. Kazi and in her testimony at the hearing she stated that she stepped on the threshold and her knee gave out and she fell.  It is clear that her fall occurred immediately upon stepping on the threshold.  The employee undoubtedly took thousands of steps without falling in the few weeks prior to the fall.  It seems to be likely that the fall occurred when she took that step because stepping on the raised threshold caused the fall.  When one is walking on a level surface one tends to [lose] one=s balance and stumble forward if a foot unexpectedly steps on a higher or lower surface.  It is more likely than not that this is what happened to the employee.  In addition, the bag of towels and rags that she was carrying obscured her vision of where she was stepping.  This meant that she could not prepare to step carefully on or over the threshold.  These two factors were work-related.  Therefore the employee=s fall was not idiopathic but instead arose out of the course and scope of employment.

 

Based on the evidence in the record, the compensation judge could reasonably conclude that the employee=s injury was causally related to her work.  Under these circumstances, the compensation judge did not err by concluding that the employee=s injury arose out of her employment. We conclude that the evidence is sufficient to support the judge=s decision in this matter, and, accordingly, we affirm that decision.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).