The employer and insurer appeal from the compensation judge’s findings that the employee’s injury arose out of and in the course of his employment and from the resultant award of benefits.  We affirm.

Kelly Dennis was hired as a dishwasher by The Salvation Army in April 2004.  He was promoted during the course of his employment and in February 2013, he was employed as a lead cook.  As a lead cook, Mr. Dennis worked from 6:00 a.m. to 2:30 p.m. and was paid on an hourly basis.  During his shift, breakfast and lunch were provided to shelter residents, employees, and the general public. Mr. Dennis and his crew served between 900 and 1,000 meals every day.  Breakfast was served at three seatings:  7:00, 7:30, and 8:00, and lunch was served at three seatings:  11:30, 12:00, and 12:30.  Mr. Dennis was entitled to a half-hour unpaid lunch break, and two paid 15 minute breaks.  Mr. Dennis testified that there was no set schedule for his breaks and he took his breaks as the work allowed.  Because of his schedule, Mr. Dennis stated that he usually took only 5 to 7 minutes for his paid breaks.

Mr. Dennis worked for the employer at its location on Currie Avenue near downtown Minneapolis. The employer operations at that location were in two buildings. One building was at 1010 Currie Avenue and is referred to in the testimony as the 1010 building. The 1010 building contained the kitchen, shelters for homeless men and women that accommodated about 150 people, administrative offices, treatment facilities, and some apartments. Mr. Dennis worked in the kitchen in the 1010 building. The other building was across the street at 1011 Currie Avenue. The 1011 building housed a number of programs, a garage for vehicles, and a storage area for the kitchen for supplies that were not needed immediately. Deliveries to the storage area were made using a driveway that ran next to the building from Currie Avenue to the loading dock. Dominic Bouza, operations manager for the employer, testified that employer was responsible for snow removal from the sidewalk in front of the 1011 building and the driveway to the loading dock.

Mr. Dennis is a smoker and usually used his paid breaks for a smoke break.  Smoking was not allowed inside the buildings.  At one point, Mr. Dennis and the other smokers used a space outside of the 1010 building near the kitchen.  However, intake fans brought cigarette smoke into the building, and employees were no longer allowed to smoke there.  Instead, there were two areas designated by the employer where smoking was allowed.^[1]  One area was located outside the 1010 building near the back door of the kitchen where there was a fenced in area with picnic tables.  The other area authorized for smoking was located across the street in the driveway for the 1011 building.  The employee testified that an employee who smoked outside of those areas would be reprimanded.

February 8, 2013, was a workday for Mr. Dennis.  It had begun snowing sometime during the night and was still snowing when he got to work.  Mr. Dennis estimated that two inches of snow had fallen by the time that he took his first break at around 10:30.  Mr. Dennis decided not to use the fenced area by the kitchen door because of the accumulated snow.  The employee generally wore a pair of Sketchers that he found comfortable because he stood while he worked, and he was concerned that using the fenced area would result in wet feet.  Instead, he opted to go across the street to the location by the 1011 building. Mr. Bouza testified that it was common for employees who worked in the 1010 building to use the driveway across the street.

The street between The Salvation Army buildings had not been plowed when he crossed the street.  The sidewalk in front of the 1011 building had not been shoveled either.  Instead, the employer had used a spreader to apply salt, creating a slushy surface.  Mr. Dennis stated he did not walk up the driveway because of a collection of slush and water in the driveway by the street that would have been impossible to avoid.  He elected to cross the street directly to the 1011 building and used a v-shaped path created by other pedestrians to get through the snow on the curb.  As he stepped on the path, he slipped on the slushy snow and fell.

Mr. Dennis noted his left knee was stiff and somewhat sore immediately after he fell.  The employee sought medical attention for his left knee on February 12, 2013, when he saw Dr. Steven Soneral at HealthEast Vadnais Heights.  Dr. Soneral found swelling and warmth on examination.  He assessed a contusion injury with subsequent overuse and recommended ibuprofen, rest, and ice.  An MRI done of the left knee on February 25, 2013, showed a “moderate-sized flap tear” of the medial meniscus.

Mr. Dennis was referred to an orthopedist and saw Dr. Steven Meisterling on March 1, 2013.  Initially, Dr. Meisterling prescribed a regimen of rest, ice, compression, elevation, and altered activities.  When the employee’s pain persisted despite these measures, surgery was recommended, and on March 26, 2013, Dr. Meisterling performed a left knee arthroscopic partial medial meniscectomy.

After surgery, the employee developed additional pain in his left knee.  An MRI was done, and after review, Dr. Meisterling stated in his chart note of May 31, 2013, “there does appear to be a microfracture in the subchondrial bone of the medial femoral condyle.”  No specific treatment for the fracture was prescribed since Dr. Meisterling believed the fracture might heal on its own.  Physical therapy was prescribed after a later visit.

The employer and its insurer, American Zurich with claims administered by Chesterfield Services, Inc., denied liability for the employee’s injury, asserting that the employee’s injury did not arise out of or in the course of his employment with The Salvation Army.

Dr. Paul Wicklund evaluated the employee on behalf of the employer and insurer on July 23, 2013, and he issued a report of his evaluation on July 30, 2013.  Dr. Wicklund diagnosed “1. Status post partial left medial meniscectomy. 2. Mild chondromalacia medial femoral condyle. 3. Healing undisplaced fracture of the medial femoral condyle with mild chondrol depression.”  He further stated that the cause of the employee’s knee problems was the fall on February 8, 2013, that the treatment provided for the left knee was reasonable and necessary, but further care was not necessary except for office visits until the medial condyle fracture healed.  Dr. Wicklund concluded that, “at the present time, Mr. Dennis cannot do any kneeling or prolonged standing on his left leg,” but “ultimately” these restrictions would be lifted.  Dr. Wicklund evaluated the employee as having 2 percent permanent partial disability for the surgical repair of the medial meniscus tear.

Dr. Meisterling prepared a report dated December 13, 2013, at the request of the employee’s attorney.  He stated that as of the date of his last examination in September 2013, the employee was in need of continuing work restrictions, and that he would require ongoing medical care in the form of a home exercise program with the possibility of surgical intervention depending on the healing of the subchondrial fracture. Dr. Meisterling otherwise agreed with Dr. Wicklund.

The employee’s claims for benefits were heard by Compensation Judge Gary Mesna on May 30, 2014.  Medical records and reports were introduced by the parties, the employee introduced photos of the premises at 1010 and 1011 Currie Avenue, and testimony was presented by Mr. Dennis and by Dominic Bouza.

The compensation judge issued his findings and order on September 4, 2014.  He determined the employee’s February 8, 2013, injury arose out of and in the course of his employment.  The compensation judge awarded benefits for temporary total disability from February 9, 2013, and continuing, as well as medical treatment expenses, 2 percent permanent partial disability, reimbursement to medical providers, and allowed a rehabilitation consultation.  The employer and insurer have appealed.

The central issue in this appeal is whether the injury of Mr. Dennis arose out of his employment and whether he was in the course of his employment when he was injured.  For a personal injury to be compensable, it must be “an injury arising out of and in the course of employment.”  Minn. Stat. § 176.011, subd. 16.  “A causal connection - - not necessarily in the proximate cause sense - - must exist between the injury and employment . . . the very words ‘arising out of’ connote a causal connection, whereas ‘in the course of’ refers to the time, place, and circumstances of the incident causing the injury.”  Gibbert by Gibbert v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988). The compensation judge found that Mr. Dennis was injured on February 8, 2013, in the course of his employment and that the injury arose out of his employment.  On appeal, the employer and insurer argue that the compensation judge erred in his findings.

In finding that the injury arose out of employment, the compensation judge applied what has come to be known as the “street risk” doctrine.  As the compensation judge noted, one of the earliest formulations of the street risk doctrine is found in Bookman v. Lyle Culvert & Road Equipment Co., 153 Minn. 479, 479, 190 N.W. 984, 984, 1 W.C.D. 213, 213, (1922).  The employee there was struck by an automobile as she crossed the street from her employer’s premises to mail a letter for the employer.  In affirming an award of compensation, the court stated “an injury to an employé, engaged in his employer’s service in a duty calling him upon the street, by what is usually called a street risk to which his work subjects him, arises as a matter of law out of his employment, although others so employed, or the public using the streets, are subject to such risks.”

Subsequent case law has reaffirmed the holding in Bookman.  Particularly relevant for the present case is Goff v. Farmers Union Accounting Servs., Inc., 308 Minn. 440, 241 N.W.2d 315, 28 W.C.D. 372 (1976), in which the employee was struck by an automobile as she was crossing a public street from a parking lot owned by the employer, but open to the public, as she was going to the building in which she worked.  The court noted the habitual use of this route for employees, and affirmed findings that the route constituted a special hazard of the employment and that, as a result, the employee’s injury sustained while using this route arose out of her employment.

In accord is Faust v. State, Dep’t of Revenue, 312 Minn. 438, 441, 252 N.W.2d 855, 856, 29 W.C.D. 451, 454 (1977).  The employee, a state employee, was injured while crossing a public street from the building where she worked to the capitol mall where she was going to have her lunch.  The court noted that the mall was “openly and notoriously used as a lunch hour picnic and recreation area” and concluded that the mall was therefore part of the employer’s premises such that the employee’s injury arose out of her employment.

In the present case, the employee was injured when he slipped on slushy snow while crossing Currie Avenue from the 1010 building to the 1011 building.  Slushy, snowy, or icy streets are a fact of life in Minnesota, and the hazard of crossing streets may be faced by the general public.  But, as in Bookman, Goff, and Faust, the presence of Kelly Dennis on Currie Avenue at that time was due to his employment.  The employee was placed in the position of being exposed to a special hazard in crossing the street by the policies of the employer.  The employer mandated the areas where the employee was allowed to have his paid smoke break. The area closest to his work station was not available because of accumulated snow. According to the employee’s testimony, the only other area available to him for his break required him to cross the street, and during that crossing, he was injured.

Appellants make three arguments in response.  First, they assert that an injury compensable under the street risk doctrine must also meet the increased risk test articulated in Dykhoff v. Xcel Energy. 840 N.W.2d 821, 73 W.C.D. 865 (Minn. 2013).  Second, they contend that in any event, street risk does not apply here since the employee’s injury occurred on the curb and not on the street.  Third, they argue the case law setting out the street risk doctrine is no longer valid since these decisions were issued before the 1983 amendment to Minn. Stat. § 176.001.  We consider each of these arguments in turn.

First, the appellants argue that the street risk doctrine was abolished by the court in Dykhoff and that in every case an employee must establish an increased risk of injury resulting from the conditions of employment.  The appellants also contend that the increased risk test can be met only by the employee showing a “peculiar risk” of injury from the employment.  We find no indication, however, that Dykhoff abolished street risk or intended that an employee has an additional burden of showing an increased risk in these circumstances.

The employee in Dykhoff slipped and fell in a hallway on the employer’s premises.  She alleged at the hearing that her injury was due to a slippery floor in the hallway, but the compensation judge found the floor was not slippery and denied the claim.  The court in Dykhoff held that the compensation judge had properly denied the claim because the employee had not established an increased risk of injury leading to her fall.

As is true for all appellate decisions, the application of Dykhoff to future cases must be done on a case-by-case basis.  “Each case must be determined from its own facts.” Kaletha v. Hall Mercantile Co., 157 Minn. 290, 293, 196 N.W. 261, 262, 2 W.C.D. 100, 102 (1923). In Dykhoff, the supreme court specifically cited to Bookman, observing the street risk doctrine is relevant when an employee is “engaged in his employer’s service calling him upon the street” and stating that the doctrine does not require the employee to show he was exposed to a different or greater risk than the public because it was developed out of a recognition of the special hazards commonly associated with traveling on or crossing a street.  Dykhoff, 840 N.W.2d at 828 n.3, 73 W.C.D. at 874 n.3.  We conclude the compensation judge did not err in his application of the street risk doctrine on the facts of this case.

Second, the appellants argue that the facts here do not comport with the facts necessary to apply the street risk doctrine.  Specifically, they state that the employee was not in the street when he was injured, but was on the curb of the street and that the risk of injury did not originate from the street but from accumulated snow and slush on the curb.

This argument is based on a misunderstanding of the rationale for the street risk doctrine.  Crossing a street while an employee is in the course of employment may well be more perilous than the employee’s ordinary work activity.  The peril may arise from traffic or, at least in Minnesota, from accumulated snow, slush, or ice.  Further, common sense would indicate that one has not finished crossing the street until one has traversed traffic lanes, bike lanes, gutters, and curbs.  Further, the evidence shows that the injury occurred when the employee stepped into a v-shaped pathway made by other pedestrians who had attempted to get through a snow bank, which we can recognize as typically caused by or contributed to by street traffic and snowplowing.  We conclude, as did the compensation judge, that the employee’s injury arose from his use of the street to go from one of the employer’s buildings to another of the employer’s buildings.

And third, the appellants also argue that the case law cited by the compensation judge as support for his findings are not authoritative because they were decided under a “liberal interpretation” standard that is no longer valid.

Minn. Stat. § 176.001 was amended by the legislature in 1983 to provide that “workers’ compensation cases shall be decided on their merits” and that “the workers’ compensation laws are not remedial in any sense and are not to be given a broad liberal construction in favor of the claimant or employee on the one hand, nor are the rights and interest of the employer to be favored over those of the employee on the other hand.”

The Minnesota Supreme Court discussed the application of this amendment to previous case law in Foley v. Honeywell, 488 N.W.2d 268 (Minn. 1992).  The court stated there “the amendment simply requires that the Act be construed in a non-discriminatory manner.  We do not read the 1983 amendment to abolish previous case law, and wish to specifically note its continued validity, except, of course, where overruled by this court or altered by the legislature.” Id. at 271 n.2.  And, as we noted above, the court addressed the application of the street risk doctrine in Dykhoff and gave no indication of the doctrine’s demise.  Dykhoff, 840 N.W.2d at 828 n.3, 73 W.C.D. at 874 n.3.

A contrary result would be inconsistent with case law affirming compensability for injuries sustained during ingress or egress to or from the employment premises. In Starrett v. Pier Foundry, 488 N.W.2d 273, 273, 47 W.C.D. 176 (Minn.1992), the court affirmed an award of compensation to an employee who was injured in the employee’s parking lot while on his way to work.  The court observed that, “the protection of workers’ compensation acts extends to a reasonable period beyond actual working hours if an employee is engaging in activities reasonably incidental to employment.”  See also Novack v. Montgomery Ward & Co., 158 Minn. 495, 198 N.W. 290, 2 W.C.D.156 (1924); Olson v. Trinity Lodge #282, A.F.&A.M., 226 Minn. 14, 32 N.W.2d 255, 15 W.C.D. 251 (1948); Murphy v. Anoka Drug & Gifts, 63 W.C.D. 158 (W.C.C.A. 2002); Moe v. Univ. of Minnesota, 70 W.C.D. 395 (W.C.C.A. 2009).

As in the parking lot cases, the employer here extended the usual work place for Mr. Dennis when it mandated specific smoking areas to be used by employees, including one across the street from the 1010 building. In addition, in contrast to Starrett and the other cited cases, Mr. Dennis was not going to or coming from work but was in the middle of his work day and was being paid for his services at the time of his injury.

We conclude that the compensation judge’s finding that Mr. Dennis’s injury arose out of his employment is supported by case law and the evidence.  We affirm the compensation judge’s decision on this issue.

The compensation judge found that Mr. Dennis was in the course of his employment when he was injured and the appellants challenge this determination.

Mr. Dennis was clearly not engaged in his duties as a lead cook for the employer when he was injured.  He was, instead, injured while on one of his paid breaks.  The question here is whether this activity removed him from the course of his employment.  We agree with the compensation judge’s determination that it did not.

In Kaletha v. Hall Mercantile Co., 157 Minn. 290, 294, 196 N.W. 261, 263, 2 W.C.D. 100, 103 (1923), the employee was employed as a store Santa.  While on a break from his duties, as he was smoking a cigarette, his fake beard caught on fire and he was injured.  The issue was whether he was in the course of his employment when injured. The court reversed the denial of compensation by the Industrial Commission and stated, “The employee may, in a reasonable way, refresh himself, and, when he does so minister onto himself, he, in a remote way, probably attributes to the furtherance of the work.  His momentary delay is to be expected in the natural course of human events, and this delay was too insignificant to imperil his rights.”

In agreement was the decision of the court in Hill v. Terrazzo Machine & Supply Co., 279 Minn. 428, 433, 157 N.W.2d 374, 377, 24 W.C.D. 511, 518 (1968), where it was stated:

The injury to Mr. Dennis occurred when he was on one of the two paid breaks he was allowed by the employer during his shift.  Although he was allowed a 15-minute break, Mr. Dennis testified that he usually only took 6 to 7 minutes because of the demands of his assignment.  One may infer that his employer believed the break was to its benefit as well as the benefit of the employee since it paid Mr. Dennis for his break.  One may also infer that the employer intended Mr. Dennis to be at or very near the employer’s premises since he was given no more than 15 minutes for this break.  Although, as the appellants point out, the employee was not required to cross the street to take his break, he was required to use an authorized smoking area if he wanted to smoke on his break and the smoking area closest to the location of his duties was not available because of snow accumulation.  Given the limited time available for his break, and the discretion given to Mr. Dennis as to which authorized area in which to take his break, his decision to go to the designated smoking area across the street did not remove him from the course of his employment.

The appellants also contend that the compensation judge erred in citing Kaletha as a basis for his decision.  They renew their previous argument that cases decided before the 1983 amendment to Minn. Stat. § 176.001 have limited, if any, precedential value.  They would also limit Kaletha to its facts.  We have previously discussed the validity of pre-1983 cases and will not repeat that discussion here.  Further, the court in Dykhoff cited Kaletha with no indication that the decision was of limited utility.  Dykoff, 840 N.W.2d at 828 n.3. We also find no indication in Kaletha that the principle stated by the court in that case is limited to the rather unusual facts presented to the court.

The compensation judge’s determination that Mr. Dennis was in the course of his employment when injured is supported by substantial evidence and case law and is affirmed.

The appellants have identified medical causation as an issue in their brief.  The first sentence in the brief relating to this issue asserts that “there is no substantial evidence to support medical causation beyond July 23, 2013,” and the last sentence claims that “there is no substantial evidence of record to connect the condyle fracture with the injury of February 2013.”  We read these sentences as making two separate arguments and we will address them as such.

With regard to the condyle fracture, Dr. Wicklund, in his July 30, 2013 report, agreed with the treating doctor, Dr. Meisterling, that this was an appropriate partial diagnosis of the employee’s left knee condition.  Dr. Wicklund also stated, “[i]t is my opinion that the February 8, 2013 injury was a substantial contributing cause to this injury and need for medical care and treatment.”  We find no evidence to support an argument that the femoral condyle fracture is not related to the February 2013 injury.

We consider then the question of medical causation beyond July 23, 2013, the date of Dr. Wicklund’s examination of the employee.  Dr. Wicklund recommended that the employee continue office visits with Dr. Meisterling to monitor the healing of the condyle fracture.  Dr. Meisterling agreed with this recommendation, but also believed that physical therapy would be appropriate.  Dr. Wicklund placed restrictions on the employee’s physical activity, as did Dr. Meisterling.  There is no significant difference in the medical opinions in this matter and there is no evidence that the employee’s injury had resolved, either by July 23, 2013, or as of the date of the hearing. We affirm the compensation judge’s determination.

Oral argument on this matter took place on February 23, 2015.  The employer and insurer filed a motion with this court on March 9, 2015, seeking an order from this court requiring this court to consider an order issued by the Minnesota Supreme Court in Arrowhead Senior Living Cmty. v. Kainz on March 4, 2015.  In the alternative, the motion asks this court to suspend Minn. R. 9800.0100 through Minn. R. 9800.1700 and compel itself to consider the order in Kainz.

The affidavit supplied with the motion restates appellants’ position that the street risk doctrine is not applicable in this case and that, pursuant to appellants’ view of Dykhoff, the compensation judge should have applied an increased risk analysis.  Appellants contend the order in Kainz supports this position.  We have previously analyzed why we have concluded that the compensation judge’s decision to apply the street risk doctrine in the present case is supported by case law and the evidence.

There is no authority in the statute or rules for this court to order itself to follow a party’s interpretation of case law. The motion filed by the employer and insurer must be considered a supplemental brief not allowed by our rules of practice. Since the employee has had opportunity to respond to the arguments made by the appellants and since this court has addressed the arguments made in the motion, no further action by this court on the motion is necessary.