JANUARY 31, 2013

No. WC12-5466


ARISING OUT OF & IN THE COURSE OF - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the compensation judge’s finding that the characteristics of the location of the employee's work site placed her at an increased risk for injury from highway traffic and that her work injury accordingly arose out of her employment.


Determined by:  Milun, C.J., Hall, J., and Stofferahn, J.
Compensation Judge:  Harold W. Schultz, II

Attorneys:  Thomas R. Patterson and Michael P. Garvey, Patterson Dahlberg, Rochester, MN, for the Respondent.  William G. Laak and Jeffrey R. Homuth, McCollum, Crowley, Moschet, Miller & Laak, Minneapolis, MN, for the Appellants.




The employer and insurer appeal the compensation judge’s finding that the employee’s injuries arose out of and in the course of her employment.  We affirm.


On September 19, 2011, Lindsey Kanable, the employee, was at work at her job in the office of her employer, Service Master, which was insured for workers’ compensation liability by SECURA Insurance Companies.  The office was located in Rochester, Minnesota, on 7th Street North near a “T” junction with the frontage road along Trunk Highway 52.  The employee’s job for the employer involved performing administrative and office duties and customer scheduling.

At approximately 3:54 p.m. on that day, a semi tractor-trailer carrying a load of asphalt went out of control and left Highway 52 about an eighth of a mile north of the employer’s premises.  The truck ran across a grassy area to the west of the highway, crossed over both the frontage road and 7th Street North, and crashed through the employer’s office, where the employee was working on a joint project at a co-worker’s desk.  The truck’s path between the highway and the building initially sloped very slightly downwards in the direction of the employer’s office, and was unimpeded by any guard rail, culvert, landscape features or barriers.  The state patrol report indicated that the truck had been going at a rate of 55 to 60 miles per hour as it left the highway, and its progress was not slowed significantly after leaving the highway, so that its speed when it struck the building was still estimated at between 50 and 60 miles per hour.  Its path continued through the rear wall of the building and onto some neighboring railroad tracks.  Its progress was then halted by rocks and trees in an adjacent wooded area, at which point it burst into flames.  The driver of the truck died in the fire.

The employee was not hit by the truck, but was struck by and trapped under debris from the partial collapse of the building.  She was subsequently extricated from the debris by emergency personnel and taken by ambulance to the hospital.  She sustained multiple severe injuries, including skull fractures, fractures to the tibia and fibula, and a punctured right ear drum, as well as cuts and bruises.  Since the accident she has experienced dizziness, headaches, and problems with concentration, and has also been diagnosed with post-traumatic stress disorder.  As of the date of the hearing, additional surgery was anticipated and she had not yet been released for work.

The employer and insurer denied the employee’s claim for workers' compensation benefits, contending that the accident was unrelated to her employment, and therefore non-compensable.  The employee filed a claim petition and the matter then came on for hearing before a compensation judge of the Office of Administrative Hearings on April 6, 2012.  Following the hearing, the judge found that the injury had arisen out of and in the course and scope of the employment, and that the employer and insurer were liable for workers' compensation benefits.  The employer and insurer 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.[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.[2]  Fact findings are clearly erroneous if the reviewing court, looking at the entire evidence, is left with a definite and firm conviction that a mistake has been committed.[3]  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.”[4]


Pursuant to Minn. Stat. § 176.021, subd. 1, workers’ compensation benefits are payable “in every case of personal injury . . . arising out of and in the course of employment without regard to the question of negligence.”  The phrase “in the course of” refers to the time, place, and circumstances of the incident causing the employee’s injury, while “arising out of” connotes a causal connection between the employee’s injury and the employment, although not necessarily in the sense of proximate cause.[5]  The requisite causal connection “exists if the employment, by reason of its nature, obligations or incidents may reasonably be found to be the source of the injury-producing hazard.”[6]

Whether the employee has met the burden of proving that the injury arises out of employment is a question of fact for the compensation judge.[7]  We have noted that “[n]o one comprehensive definition can be fashioned to fit all cases addressing whether an injury arises out of and in the course of employment” and that “each case stands on its own facts.”[8]

In the present case, there was no factual dispute over the manner in which the accident occurred, nor was there any contention that the employee was not engaged in the course and scope of her employment at the time of the injury.  The issue on which the compensability of the injury depended was solely whether the injury “arose out of” the employment.  The compensation judge resolved the issue in this case by applying the “increased risk” test, long applied in Minnesota to analyze the “arising out of” element in cases involving so-called “neutral risk” injuries.  Neutral risk injuries arise from risks which have neither a personal character nor a specific and direct association with the particular nature of the employment.  Under the increased risk test, the employee was required to show that some activity or condition incidental to her employment subjected her to a greater risk for such an injury than the risk borne generally by the public at large.[9]

The appellants agree on appeal that the increased risk doctrine is applicable and that the compensation judge had reviewed the case under the appropriate standard.  However, they contend that the judge erred both in finding that the employment here created an increased risk and in finding that the injury thereby arose out of the employment.  The appellants stress that an out-of-control truck leaving a highway and striking a building is essentially a rare, random occurrence.  They further point out that nothing about the employer’s business activities or the employee’s job duties caused the truck which injured her to go out of control.  They argue that the source of injury in this case was most akin to the neutral risk of being struck by lightning or by a stray bullet.

It is unclear from their brief whether the appellants intend to suggest that the compensation judge should have given greater consideration to the unusual nature of the injury in assessing whether there was an increased risk.  We note, however, that Minnesota increased risk cases have long held that the source of the injury may be extrinsic to the employment, and have noted that the cause of the injury may be unexpected or unusual, so long as it is sufficiently shown that “one in the employment is more likely to be injured from such a source than those who are not.”[10]  From these cases, it is clear that the risk of the occurrence itself is not a consideration when applying the increased risk case; rather it is whether that risk, however small, was made substantially greater because of some incident of the employment.

The appellants contend that the evidence fails to provide a valid basis on which to find that the employment in this case increased the risk for injury from an out-of-control truck; thus the risk of such an injury should be held wholly unrelated to the employment and properly borne solely by the employee.    We agree that in cases decided under the increased risk doctrine, compensation has been denied in the absence of specific evidence to support the finding that an otherwise “neutral” risk was increased by some incident of the employment.[11]  On the other hand, where there was evidence on which the finder of fact could reasonably find that some incident of an employee’s job had increased the risk of such injury, the injury has long been found to arise out of the employment.[12]

To establish that the employment had put her at an increased risk for her injury, the employee offered into evidence photographs of the accident scene, a video (shot from a camera at a neighboring building) showing the truck as it approached the employer's building, the accident reports from the state patrol, and an aerial photograph of the accident scene and its vicinity on which survey data had been overlaid showing distances and the path of the truck after it left Highway 52.  The appellants did not dispute this evidence, which established the facts of the case as we have set them out earlier in this opinion.  Based on this evidence, the compensation judge found that certain aspects of the location of the work site, where the employee was required to be as a condition of the employment, had placed the employee under an increased risk of injury from a vehicle leaving the highway.  Accordingly, he found that the injury “arose out of” the employment and awarded workers' compensation benefits.

The appellants, however, point out that a great many businesses, residential buildings, and other places people might congregate are located close to highways, and that there are a great many busy highways traversing almost every part of the United States.  Thus, they contend, the mere fact that the work site was located near such a highway, taken alone, is an insufficient basis to sustain a conclusion that the employee was at any greater risk of injuries originating from the highway than any other member of the general public who might happen to be in a building near a highway.  Accordingly, they argue that the facts of this case compel a finding that the employee’s injury was occasioned by a risk which was shared equally by the general public.

We note, however, that the compensation judge’s finding of increased risk was supported by more than the simple fact that the employer’s office was located in proximity to the highway.  The judge also took into account the specific position of the office with respect to the direction of traffic, the absence of natural or artificial barriers between the highway and the office, and the relatively short distance the truck was required to travel in order to strike the building.[13]  The judge also noted in his memorandum that “the location of the work site [was] at the bottom of an embankment and [at] a shallow angle to the highway[14] with no effective barrier between traffic leaving the highway and the work premises . . . .”  The judge reasoned that “the risk of being struck by an out-of-control tractor-trailer traveling at highway speed diminishes the further one gets from the highway, or for that matter the more perpendicular one is located to the direction [of] the traffic.”  Based on these factors, he concluded that the risk was “not shared equally by all in the neighborhood of the employer's premises.”[15]  In our opinion, the judge’s finding of an increased risk was reasonable and was supported by substantial evidence.  Under the applicable standard of review, we therefore affirm that finding.[16]

In the alternative, the appellants argue that regardless of any nominal increase in the risk, public policy considerations should restrain this court from holding that mere proximity to a highway makes an employer liable as a matter of law for any injury to an employee that might originate from that highway.  We need not reach this issue.  We need only consider whether, on the specific facts of this case, there was substantial evidence to support the compensation judge's determination on the factual issue of increased risk.

In concluding that the increased risk here warranted the finding that the injury arose out of the employment, the compensation judge noted that the risk was similar in nature to that found in Clausen v. Ryder Student Transportation Services.[17]  In Clausen, an employee was struck by a tire thrown from a truck traveling down a highway near the employer-leased parking lot where the employee was retrieving his car.  The compensation judge found that the location of the lot near the highway created an increased risk for injuries originating from the highway traffic, and that the injury had therefore arisen out of the employment.  We affirmed the findings as supported by substantial evidence.  The appellants suggest that Clausen is distinguishable in that the employee there “had moved from the relative safety of the [employer's bus] terminal . . . into a more dangerous situation;” whereas in the present case, the employee “was not required to go anywhere or do anything that placed her at an increased risk.”[18]  In essence, the appellants seem to argue that the static physical location of an indoor work site cannot, in and of itself, be the basis for a finding of increased risk.

We can find nothing in any prior increased risk cases that supports such a distinction.  If an employee is already at an increased risk for injury from an otherwise “neutral risk” while working at the location where she is required to spend her entire work day, her injury from that risk surely arises out of the employment just as much as one sustained by an employee whose employment brought her only temporarily into a zone of increased risk.

As a final matter, we note that several alternative legal theories for compensability were offered, based on other tests and doctrines applied in various factual circumstances in prior Minnesota “arising out of” cases.  Having affirmed the compensation judge’s finding under the increased risk doctrine, which the appellants conceded to be applicable, we need not reach the parties’ arguments concerning the possible applicability of other legal theories.

[1] Minn. Stat. § 176.421, subd. 1.

[2] Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).

[3] Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

[4] Id.

[5] Gibberd v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988).

[6] Nelson v. City of St. Paul, 249 Minn. 53, 55, 81 N.W.2d 272, 275, 19 W.C.D. 120, 123 (1957).

[7] Schreier v. Bruning Constr., 61 W.C.D. 507 (W.C.C.A. 2001); Kaisershot v. Earthworks Excavating, 63 W.C.D. 623, 627 (W.C.C.A. 2003), summarily aff’d (Minn. Nov. 19, 2003).

[8] Anderson v. Smead Mfg Co. 69 W.C.D. 32, 40 (W.C.C.A. 2009); see also Gibberd, 424 N.W.2d at 780, 40 W.C.D. at 1047.

[9] See, e.g., Kirchner v. County of Anoka, 339 N.W.2d 908, 911, 36 W.C.D. 335, 338 (Minn. 1983).  See, generally, Dykhoff v. Xcel Energy, No. WC12-5436 (W.C.C.A. Nov. 30, 2012), a recent case in which we discussed the increased risk doctrine at some length.

[10] Auman v. Breckenridge Tel. Co., 188 Minn. 256, 261, 246 N.W. 889, 891, 7 W.C.D. 349, 353 (1933); see also Breimhorst v. Beckman, 227 Minn. 409, 35 N.W.2d 719, 15 W.C.D. 395 (1949); cf. generally, 1 A. Larson & L.K. Larson, Larson’s Workers’ Compensation Law ch. 3 (2012).

[11] Thus in Bloomquist v. Johnson Grocery, 189 Minn. 285, 249 N.W. 44, 7 W.C.D. 441 (1933), an injury sustained when a bug flew into a store clerk’s eye was held not to arise out of the employment where no evidence had been offered to show that such bugs were more abundant in or around the store than at any other place; similarly, in Auman, 188 Minn. at 261, 246 N.W. at 891, 7 W.C.D at 353, an injury from a stray bullet was not found to arise out of the employment where the work had placed the employee at no greater exposure to stray bullets than was the general public.

[12] See, e.g., Foley v. Honeywell, Inc., 488 N.W.2d 268 (Minn. 1992) (where the employee’s presence at the employer’s parking facility in a high crime area was due to her employment, her murder there by a random assailant resulted from a risk that was increased by the employment, and her death was held compensable under the workers’ compensation statute); State ex rel. Peoples Coal & Ice Co. v. District Court of Ramsey County, 129 Minn. 502, 153 N.W. 119 (1915) (work driving an ice wagon outdoors exposed the employee to a greater risk of injury from otherwise neutral risk of random lightning strike).

[13] The employer and insurer suggest that the distance traveled, 777 feet, is too great to reasonably be considered to have significantly increased the risk to the employee from a truck leaving the highway.  We note, however, that a vehicle traveling 60 miles per hour traverses 5,280 feet per minute, and at that speed requires less than nine seconds to travel 777 feet.

[14] The survey map of the accident site reveals that the path the truck followed before crashing into the employer’s office had required only a 15 degree deviation from the usual direction of the highway traffic.  (The text of Finding 5 states that the truck traveled at a “45” degree angle, but this is clearly a typographical error.)

[15] Memorandum at 5.

[16] See Minn. Stat. § 176.421, subd. 1.

[17] Clausen v. Ryder Student Transp. Servs., 59 W.C.D. 463 (W.C.C.A. 1999).

[18] Appellants’ brief at 14.