AUGUST 24, 2016

No. WC16-5936

ARISING OUT OF & IN THE COURSE OF. Where the employee was injured in a fall when her foot stuck on an irregular concrete surface while she was entering the employer’s premises, substantial evidence supported the compensation judge’s finding that the injury was caused by the condition of the walkway which constituted an increased risk. Based upon Dykhoff v. Xcel Energy, 840 N.W.2d 821, 73 W.C.D. 865 (Minn. 2013) and related case law, an employee’s trip and fall on an irregular concrete surface on the employer’s premises arose out of her employment.

Determined by:
            David A. Stofferahn, Judge
            Patricia J. Milun, Chief Judge
            Gary M. Hall, Judge
            Manuel J. Cervantes, Judge
            Deborah K. Sundquist, Judge

Compensation Judge: Miriam P. Rykken

Attorneys: Richard L. Carlson, Hunegs, LeNeave & Kvas, Wayzata, Minnesota, for the Respondent. Tracy M. Borash, Brown & Carlson, P.A., Minneapolis, Minnesota, for the Appellants.




The employer and insurer appeal from the compensation judge’s determination that the employee’s injury of August 22, 2014, arose out of and in the course of her employment. We affirm.


The employer, New American Hospitality, owns and operates three hotels: a Quality Inn in Brooklyn Center, a Best Western in Brooklyn Center, and a Quality Inn in Mankato. Ms. Chrushshon was hired in June 2014 to be the director of sales and marketing for the employers’ hotels. Her office was in the Best Western hotel but she regularly and frequently visited all three hotels as a part of her work duties.

On August 22, 2014, the employee reported to work at 9:00 a.m. and around noon drove to the Quality Inn in Brooklyn Center. She parked her car in front of the main entrance of the hotel and walked to the main door. The employee did not have a key for access to any other entrance. The walkway between the parking lot and the front door is made of concrete. It is shaped or “stamped” to resemble a cobblestone walk. Photographs in evidence show the walkway is a series of rectangles and squares of varying sizes in an irregular or random pattern. The surface of the squares and rectangles is irregular and is broken by grooves between the squares and rectangles to resemble grouting.

The employee testified that as she approached the front door, her foot felt “stuck” on the walkway and she tripped, falling forward and striking the closed door with her right arm. She fell to the ground and experienced severe pain and bleeding in her right arm.

The general manager of the hotel, William Gaddis, came to her aid. The employee told him that she had stumbled over a brick. [1] The hotel’s night auditor, Kiara Dowdell, also came to help her. Ms. Dowdell stated in her deposition testimony that the employee said something about her shoes causing her trouble but the employee did not say anything else to her about what had caused her to fall.

The employee was taken immediately after her fall to North Memorial Hospital where she was diagnosed as having sustained a severely comminuted transcondylar fracture of the right distal humerus with subluxation of the right elbow joint and angulation at the fracture site. Open reduction and internal fixation of the comminuted right distal humeral fracture with an olecranon osteotomy was done the same day.

In February 2015, the hardware placed during surgery was removed. In June 2015, a nonunion of the elbow fracture was noted by her treating doctor after x-rays were reviewed. Further surgery was done in July 2015. The surgeon performed a right ulnar nerve neurolysis and right ulnar nerve decompression followed by bone grafting with plate and screw fixation of the nonunion. In October 2015, elbow arthroplasty was recommended by the employee’s treating doctor and the employer and insurer’s independent medical examiner.

The employer and its insurer denied liability for the employee’s injury. The employee filed a claim petition which was heard by Compensation Judge Miriam Rykken on November 4, 2015. The issues at the hearing were whether the employee’s injury arose out of and in the course of her employment as well as the employee’s claims for wage loss benefits, rehabilitation services, medical expenses, and the claims of intervenors.

In her Findings and Order of February 22, 2016, the compensation judge determined that the employee’s injury arose out of her employment and awarded benefits. The employer and insurer have appealed.


The compensation judge found that the employee’s injury arose out of her employment and happened while she was in the course of her employment. Based on that determination, the compensation judge held the employee’s injury to be compensable under the workers’ compensation statute and awarded benefits. Minn. Stat. § 176.021, subd. 1. The employer and insurer do not challenge the determination that the employee was in the course of her employment when injured but argue on appeal that the compensation judge erred as a matter of law in finding that the injury arose out of employment.[2]

1.    Causation

The compensation judge based her determination that the injury arose out of employment on her acceptance of the employee’s testimony that her injury was due to tripping on the cobblestone surface of the walkway.[3] The appellants argue that the employee’s testimony was not credible and the compensation judge erred in relying on the testimony. They contend that the fall was due to the employee’s right knee giving way and they cite to medical records of a preexisting right knee condition and the testimony of the employer’s owner who claimed that the employee told him that her knee problems were the cause of her fall.

The employee testified at the hearing that she tripped on the hotel’s walkway and that she did not fall as a result of her previous right knee problems. The employee was cross-examined extensively on questions of her credibility, previous knee problems, and her description of her trip and fall in an exchange that encompasses more than 60 pages in the hearing transcript. Despite this cross-examination, the compensation judge found the employee credible and accepted her testimony.

On the issue of credibility of witnesses, this court has often cited to the holding in Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225-26 (Minn. 1989)(“Assessment of witnesses’ credibility is the unique function of the trier of fact.”). We referred to the rationale for such a rule in Baker v. T. Maxwells, Inc., No. WC09-5003 (W.C.C.A. Feb. 8, 2010), stating: “This court reviews a written record while a compensation judge is able to view the witness as the evidence is given and is able to evaluate their demeanor and behavior.” Other than saying the employee’s testimony was “simply not credible in any respect” the appellants provide no reason for this court to ignore the compensation judge’s conclusions of credibility based on her observation of the witnesses and her consideration of the testimony.

The compensation judge’s finding that the employee tripped on the irregular surface of the walkway is supported by evidence in addition to the employee’s testimony. William Gaddis, the general manager of the hotel, testified that the employee told him immediately after her fall that she stumbled over the bricks in the walkway. Mr. Gaddis also testified that he had tripped and fallen on the walkway and that “I’ve had a guest fall once and then also an employee also fall [sic].”[4] The employee’s testimony was also consistent with the history she gave to North Memorial Hospital in her initial treatment there on August 22, 2014. The hospital record states “apparently tripped on cobblestones in front of a hotel.”[5]

We conclude substantial evidence supports the compensation judge’s finding that the employee’s injury on August 22, 2015, was the result of her trip and fall on the hotel’s walkway.

2.    Arising Out of Employment

The appellants contend that even if the employee’s testimony about her injury was accepted, it was still error for the compensation judge to find the injury arose out of employment. The appellants argue that a denial of the claim was mandated by the decision in Dykhoff v. Xcel Energy, 804 N.W.2d 821, 73 W.C.D. 865 (Minn. 2013). We disagree.

In considering Dykhoff, it is important to recognize what the decision of the Supreme Court did and did not do. What the Supreme Court did was to reject the balancing test used by this court in Bohlin and in subsequent decisions.[6] What the Supreme Court did not do was to create a new rule of law for deciding if a personal injury arises out of employment. Instead, the court relied on previous case law and reiterated that there must be some “causal connection between the injury and the employment.” Dykhoff, 840 N.W.2d at 826, 73 W.C.D. at 871.

The meaning of a causal connection is shown in the contrast between the facts in Dykhoff and those in two earlier cases that the Minnesota Supreme Court relied upon in the decision, Foley v. Honeywell, Inc., 488 N.W.2d 268 (Minn. 1992) and Nelson v. City of Saint Paul, 249 Minn. 53, 81 N.W.2d 272, 19 W.C.D. 120 (Minn. 1957). In Dykhoff, while the employee was on the employer’s premises in the course of her employment, the employee showed no other connection between her employment and her injury. She could not explain how or why she fell. By contrast, in Foley the employee was assaulted in the employer’s parking lot. The court in Foley noted that there had been previous attacks on Honeywell employees in the parking ramp. The Dykhoff court quoted from Foley for the need of “some causal connection between the injury and the employment.” Dykhoff, 840 N.W.2d at 826, 73 W.C.D. at 871. From Nelson, the Dykhoff court noted that the required causal connection “is supplied if the employment exposes the employee to a hazard which originates on the premises as a part of the working environment.” Id. The Minnesota Supreme Court also quoted Nelson for the proposition that, “If the injury has its origin with a hazard or risk connected with the employment and flows therefrom as a natural incident of exposure occasioned by the nature of the work, it arises out of the employment.” Id.

The hazard encountered by an employee need not be unique to persons in the course of employment or need not be an exposure encountered only by a person in the course of employment. In Foley, the hazard was the risk of attack in the employer’s parking ramp that was open to members of the general public. In Nelson, the hazard was the likelihood of being hit by a ball while walking next to a playground. These hazards could have been encountered by non-employees and the hazards could also have been encountered by the employees in their private lives. What made the injuries in Foley and Nelson arise out of employment is that their employment brought these employees to the employers’ premises and exposed them to a “hazard which originates on the premises as a part of the working environment.” Nelson, 81 N.W.2d at 275, 19 W.C.D. at 123.

The compensation judge found the irregular surface of the stamped concrete walkway to be the cause of the employee’s trip and fall. At least two other people had fallen on the walkway as well. The employee was exposed to this risk by her employment and her injury was a natural incident of her exposure to the hazard. As a result, per Foley and Nelson, the injury to this employment must be found to arise out of the employment.

The employer and insurer presented a report from an engineering company which purported to show that the walkway was not defective. While this type of report may or may not be relevant in a given case, it is not determinative. The statute specifically provides that liability exists for an employer for any personal injury “arising out of and in the course of employment without regard to the question of negligence.” Minn. Stat. § 176.021, subd. 1 (emphasis added). An employee is not required to prove a defect or negligence on the part of an employer to establish compensability.

3.    Summary

Whether or not a hazard of employment exists which results in an injury is a factual determination for the compensation judge. We conclude that the employee’s testimony, the testimony of William Gaddis, the photographs of the injury site, and the medical records provide ample evidence to support the compensation judge’s decision. The decision of the compensation judge is affirmed.

[1] Employee Ex. J, Gaddis Dep. p. 10.

[2] The appellants identified other issues for review in the notice of appeal. Since those issues were not discussed in the appellants’ brief, they are “deemed waived and will not be decided by the court.” Minn. R. 9800.0900, subp. 1.

[3] Finding 13.

[4] Employee’s Ex. J, Gaddis Dep. p. 17.

[5] Employee’s Ex. C.

[6] Bohlin v. St. Louis Cnty./Nopeming Nursing Home, 61 W.C.D. 69 (W.C.C.A. 2000), aff’d without opinion, 621 N.W.2d 459 (Minn. 2001).