GARY MUNSON, Employee, v. WILMAR/INTERLINE BRANDS and ST. PAUL TRAVELERS,  Employer-Insurer/Appellants, and U.S. DEP’T OF VETERAN’S AFFAIRS, Intervenor.

DECEMBER 16, 2008

No. WC08-205


ARISING OUT OF & IN THE COURSE OF - PERSONAL COMFORT.  Where the employer had required the employee to maintain a home office as a condition of his employment, where there was no dispute as to the facts or duration of the employee’s break, and where, at the time of his break, the employee was performing a task required of him by his employer, the compensation judge’s application of the personal comfort doctrine in awarding benefits to the employee consequent to his injury on his way to his kitchen to get a cup of coffee was neither improper legally nor unsupported by substantial evidence.


Determined by: Pederson, J., Wilson, J., and Rykken, J.
Compensation Judge: Jennifer Patterson

Attorneys: Jackson S. Baehman, Woodbury, MN, for the Respondent.  Gary M. Hagstrom, Koll, Morrison, Charpentier & Hagstrom, St. Paul, MN, for the Appellants.




The employer and insurer appeal from the compensation judge’s application of the “personal comfort doctrine” to award benefits to the employee, who, while working at his employer-required in-home office, was injured while descending stairs to get a cup of coffee.  We affirm.


The facts in this case are undisputed.  On March 31, 2007, Gary Munson [the employee] was employed as a sales representative by Wilmar/Interline Brands [the employer], a supplier of appliances, cabinets, and other products used by apartment complexes.  The employer maintained a warehouse facility in Minnesota but did not provide office space for its sales representatives, either at the warehouse facility or at a different location.  As a condition of his employment, the employee was required to maintain a home office, which he located in a second-floor former bedroom.  His office equipment included a computer, a printer, a fax machine, a telephone, and a cell phone.  The employer required at least monthly contact with each customer, and the employee made many of his calls to customers from his home office.

On Saturday, March 31, 2007, the employee had breakfast at home and then walked upstairs to his home office to prepare a month-end sales report, which was required to be on his supervisor’s computer by the following Monday morning.  The employee had also agreed to prepare the same report for his colleague, Paul Hanlon.  The employee signed into the employer’s server in New Jersey and completed his report, but he had difficulty accessing Mr. Hanlon’s information.  After three or four unsuccessful attempts, the employee decided to take a short break from his computer to get a cup of coffee.  He was not planning to be gone long, just the time necessary to go to his kitchen, pour a cup of coffee, and return to his work.  The employee stood up from his desk, left his office, walked about ten steps to the staircase, and proceeded down the staircase.  As he descended the stairs, he was not carrying anything related to his work or intending to retrieve any materials necessary for that work.  About two-thirds of the way down the stairs, the employee slipped and landed on his back on the steps.  He suffered a fracture of his T9 vertebra, which eventually required surgery on August 24, 2007.

On June 13, 2007, the employee filed a claim petition, alleging that his fall on March 31, 2007, arose out of and in the course of his employment.  The employer and insurer disputed the employee’s claim, and the matter was heard by a compensation judge on June 26, 2008.  The issue presented to the judge for determination was whether the personal comfort doctrine applies “to an employee who is working at home because his employer requires him to have a home office and does not have premises where [he] can perform his job duties.”  In a findings and order issued August 13, 2008, the judge determined that, when he decided to take a short break from his computer to get a cup of coffee, the employee was performing an act for his personal comfort in a way not unusual or unreasonable.  She concluded that personal comfort activities are reasonably incident to employment and that in this case, where the employer required the employee to have a home office and it provided no other office facilities for the employee to complete his work, the employee’s fall at home was compensable under the personal comfort doctrine.  The employer and insurer appeal.


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.  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); see Gibberd by Gibberd v. Control Data Corp., 424 N.W.2d 776, 779, 40 W.C.D. 1040, 1045 (Minn. 1988).  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, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  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.”  Id.

“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.”  Krovchuk v. Koch Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).


In Minnesota, an injury is compensable for workers’ compensation purposes if the injury arises out of and in the course of an employee’s employment.  Minn. Stat. § 176.021, subd. 1.  In this case, the compensation judge applied the so-called “personal comfort doctrine” to find that the employee’s injury arose out of his employment.  The Minnesota Supreme Court in Hill v. Terrazzo Machine & Supply Co., 279 Minn. 428, 433, 157 N.W.2d 374, 377, 24 W.C.D. 511, 517 (1968) (citations omitted), stated that it is “well established that acts of an employee necessary to life, comfort, or convenience while at work, although personal to him and not technically acts of service, are incidental to the service, and injury arising while in the performance of such acts is compensable.”  In the Hill case, an employee who had arrived for work early used the few minutes before his shift began to leave his place of work in order to mail a card in a street mailbox.  While doing so, he was injured on the employer’s premises.  The Minnesota Supreme Court viewed the question presented as whether the employee had removed himself from the protection of the act by momentarily leaving his employment to go out to the street to place a letter in the mailbox.  In finding the employee’s injury compensable, the court explained that

the incident out of which the injuries arose was not a departure from work but a minor interruption from work which might reasonably be expected in the course of a day’s activities.  It is only realistic to say that a workman does not move mechanically in precise and definite work patterns, and it may be expected that he will from time to time perform acts which are not necessarily in the nature of service to the employer.  We conclude that since the conduct from which the injuries arose was such as reasonably might be expected, and since it was not expressly forbidden, it was not such a departure from the course of service or the performance of his duties as to deprive him of the benefits of the compensation act.

Id. at 433, 157 N.W.2d at 377-78, 24 W.C.D. at 518.

The question of whether the personal comfort doctrine applies when employees are working in their own homes appears to be an issue of first impression.  In a memorandum accompanying her findings and order, the compensation judge rejected the employer and insurer’s argument that there would be no end to coverage if the personal comfort doctrine applied to home offices.  Applying the doctrine to the present case, the judge reasoned that, “[a]s a matter of policy, people who are required to maintain home offices as their only offices should have the same degree of workers’ compensation coverage they would have in a building owned or rented by the employer.” (Memo at 6.)

The employer and insurer contend that the personal comfort doctrine does not apply to injuries sustained in a home office setting.  They argue, first, that an employee working at home must be engaged in the actual performance of his work activities at the time of the injury in order to be covered under the act, citing this court’s decision in Gillund v. Royal Milbank Ins. Co., 46 W.C.D. 520 (W.C.C.A. 1992).  In Gillund, the employee, who worked out of a home office and used a company car, suffered a heart attack while shoveling three to four inches of snow from his driveway.  The employee contended that his snow shoveling activities were in the course and scope of employment because he worked from his home, was therefore on the employment “premises” when he injured himself, and needed to use his car in his work.  The court concluded that compensability for the employee’s injury hinged on whether his actions in shoveling snow were directly in performance of work activity.  Evidence supported the inference that the employee would have shoveled his driveway even absent any benefit to his employer, because it was his usual custom, he did not have to leave home at any particular time, and he could have moved the car without shoveling the driveway.  In the course of its decision, the court stated:

It is clear that the employee maintained a home office.  [Citation omitted.]  However, workers’ compensation coverage for workers who perform all or part of their duties from their home office is limited to injuries sustained either during the actual performance of work activities or in the course of work-related transportation to or from the home.

Id. at 526.  The employer and insurer interpret this statement by the court as an intention to establish a “bright line” rule to restrict claims for injuries suffered at home during activities personal to the employee, “potentially because the Court considered the limitless claims which might be made by employees who possess a home office, or the lack of employer control of the environment.”  We disagree.

Nowhere in the Gillund case is the personal comfort doctrine mentioned.  The employee’s personal task in shoveling his driveway had no correlation to the comforts of, say, using a restroom or getting a drink of water, such as are contemplated under the personal comfort doctrine.  The issue in the Gillund case was whether or not his actions in shoveling snow at the time of his injury were the performance of a work activity.  The Gillund case did not address acts personal to the employee such as are contemplated by the personal comfort doctrine.  A requirement that the employee must be engaged in the actual performance of his work duties at the time of the injury is, in fact, antithetical to the personal comfort doctrine, and we find no basis for the employer and insurer’s sweeping interpretation of the Gillund court’s holding as a suggestion that the court was establishing a “bright line” rule regarding home office cases.  The Gillund case does not apply to the personal comfort doctrine.

Secondly, the employer and insurer contend, without support, that [t]he personal comfort  doctrine has historically applied only to injuries occurring during minor interruptions from work within areas over which the employer owns, or has control.”  Here, they contend, the employer had no control over the employee’s break - - it had no ability to control the duration of the break, the distance the employee might travel during the break, or what actions the employee might be involved in during the break.  They contend that the employee left his place of employment - - i.e. his home office - - and was simply walking to another area of his home to get a cup of coffee, an activity, they assert, no different from leaving the employer’s premises and crossing the street to a diner.  We disagree.

We reiterate that the facts in this case are undisputed.  By requiring the employee to maintain a home office as a condition of his employment, the employer, we conclude, extended the employment premises to the employee’s home and assumed some risks associated with those premises.  There is no dispute here about the distance the employee traveled during his break, the duration of his break, or whether the employee was actually working immediately prior to the break.  The employee was at a place where his duties required him to be, and he was performing, at the time of his comfort break, a task that his employer required him to perform.  He did not leave the course of his employment when he went to the kitchen for a cup of coffee any more than an employee on non-home premises leaves his employment when he does so.  There has been no suggestion here that the route chosen by the employee to obtain his coffee was unreasonably dangerous or unconventional.  Nor was evidence introduced that the employee’s activity was expressly prohibited.  While the employer may not have been able to exercise the type of control over the employee or the premises that it might exercise at its own facility, the employer’s business decision to require a home office rather than to provide a separate facility for its employees is an element of control.  We recognize the potential difficulties that may arise in cases where home-based or telecommuting employees are injured in their own homes.  The personal comfort doctrine has, however, been applied in Minnesota for many years.  See Kaletha v. Hall Mercantile Co., 157 Minn. 290, 196 N.W.2d 261, 2 W.C.D. 100 (1923).

Both this court and the supreme court have repeatedly emphasized that each case involving the question of whether an injury arose out of the employee’s employment “must to a great extent ‘stand on its facts.’”  Gibberd, 424 N.W.2d at 780, 40 W.C.D. at 1047.  The determination of whether an employee’s injury arose out of and in the course of his employment is a question of fact to be resolved by the compensation judge upon review of the record as submitted.  Franze v. National Delivery Serv., 49 W.C.D. 148, 155 (W.C.C.A. 1993).  Under the particular facts presented here, the compensation judge properly determined that the personal comfort doctrine should be applied to cover the employee’s injury.  We therefore affirm.