SAMUEL R. ERVEN, Employee/Respondent, v. MAGNETATION, LLC, and WESTERN NAT’L INS. GROUP, Employer-Insurer/Appellants, and GRAND ITASCA CLINIC AND HOSP., NORTHERN PINES ORTHOPAEDIC CLINIC, and RADIOLOGICAL ASSOCS. OF DULUTH, Intervenors.

The employer and insurer have appealed the compensation judge’s determination that the employee’s injury on July 27, 2014, arose out of his employment.  We affirm the compensation judge’s determination on this issue.  The employer and insurer have also appealed the compensation judge’s order to pay the claims of an intervenor, Grand Itasca Clinic and Hospital.  We reverse the compensation judge’s determination on this issue.

The employee, Samuel R. Erven, began working for Magnetation, LLC, in April 2012.  Magnetation processes iron ore to produce “concentrated iron.”  The employee’s initial job for the company was as an operator, driving trucks, forklifts, and other equipment at the company’s plant in Grand Rapids, Minnesota.  Because the employee had attended Hibbing Community College for a program in electrical maintenance, he became an electrician with the employer in August 2012.

As an electrician, the employee worked with a millwright to maintain and repair machinery and equipment at the plant.  The employee worked in what he referred to as the concentrator building.  Slurry, a mixture of iron ore and water, enters the building on a conveyor belt.  The mixture goes to a holding tank, known as the slurry tank, before it is sent on for further processing.  The slurry tank is approximately 40 feet high, 25 feet in diameter, and holds approximately 750,000 gallons of slurry.  The tank has an agitator to keep mixing the slurry before it is pumped out through hoses to the next step in the process.

At about 8:00 a.m. on July 27, 2014, the employee was on duty in the control room of the concentrator building when he received a radio call that slurry was leaking from the slurry tank.  If not stopped, the slurry would leak on to the floor and, if the leak continued, there would be additional costs and delays in production.  It was the employee’s duty to identify the cause of the leak and stop it.

The employee left the control room, which was elevated above the main floor of the building, and went down the steps to the main floor.  He was able to see slurry flowing from the tank at that point but could not see specifically where it was coming from.  The tank was at least 100 feet away from the control room.

The employee testified that as he was going to the slurry tank, “I was hurrying.  I was walking faster than normal.  I had something to do, get it done.”  (T. 33.)  He considered the situation to be an emergency.  A co-worker called to testify by the employer and insurer also stated that the situation was an emergency.  The co-worker was walking about five feet ahead of Mr. Erven and said they “were going a little faster than . . . a walk.”  (T. 74.)  As he hurried to the tank, Mr. Erven stated his attention was fixed on the top of the tank “[u]p at the fountain of slurry.”  (T. 33.)

The floor on which the employee was walking was flat and, although there were hoses on the floor, he did not trip or fall while stepping over a hose.  At some point before the employee reached the slurry tank, he rolled his right ankle, with the outer portion of his ankle turning out while he was walking.

Mr. Erven was asked at the hearing to explain why the incident happened.  He stated, “I don’t have a clue what happened.  It all happened so fast.  But I know that if I had been looking at the floor and walking casually like normal it wouldn’t have happened like the other thousand times I have walked through there.”  (T. 39.)

After rolling his ankle, the employee said he stumbled forward for another 25 feet and then sat down on the stairs at the tank as he waited for the pain to go away.  When the ankle pain did not go away, the employee drove himself to the emergency department at Grand Itasca Hospital.  X-rays showed no fracture and he was diagnosed with an ankle sprain and right foot sprain.  Mr. Erven returned to Grand Itasca Clinic for a follow-up appointment on August 28, 2014, because his ankle pain was not improving.  A CT scan was advised but insurance authorization for the scan was denied.  Mr. Erven declined to have the procedure done.  In April 2015, an MRI scan was advised but Mr. Erven did not have the procedure done because this procedure also was not authorized.

The employer and insurer denied liability for the July 2014 injury and the employee filed a claim petition in November 2014.  Notices of the right to intervene were sent by the employee’s attorney to the medical providers.  Motions to intervene were filed by Northern Pines Orthopaedic Clinic, Radiological Associates of Duluth, and Grand Itasca Clinic and Hospital.

The employee’s claim was set for hearing on July 15, 2015, but was stricken from the calendar on July 13, at the request of the attorneys for the parties.  The hearing was reset for November 2, 2015, and took place on that date before Compensation Judge John R. Baumgarth.  Before the hearing, the parties identified the issues to be determined and also stipulated as to some issues.  The parties agreed the employee was in the course of employment when injured.  The compensation judge was asked to determine if the July 27, 2014, injury arose out of his employment.  It was agreed that the intervention interests of Northern Pines Orthopaedic Clinic and Radiological Associates of Duluth were payable if the employee’s injury was compensable.  The compensation judge was asked to determine if the intervention interests of Grand Itasca were barred by its failure to file the motion to intervene on a timely basis.

The compensation judge issued his Findings and Order on December 4, 2015.  He determined that the employee’s injury arose out of his employment and was compensable under workers’ compensation.  He also allowed the intervention claim of Grand Itasca.  The employer and insurer have appealed from this decision.

An employer is liable for compensation for a personal injury “arising out of and in the course of employment.”  Minn. Stat. § 176.021, subd. 1.  The parties agree Mr. Erven was in the course of his employment when injured.  The issue, both at hearing and on this appeal, is whether his injury arose out of his employment.

The compensation judge found the July 27, 2014, work injury arose out of employment.  The appellants contend that, in doing so, the compensation judge erred as a “matter of law” and that the decision was contrary to the holding in Dykhoff v. Xcel Energy, 840 N.W.2d 821, 73 W.C.D. 865 (Minn. 2013).

In Dykhoff, the employee fell in the hallway of the employer’s premises while she was there for a meeting.  The compensation judge found the employee had failed to meet her burden in establishing a causal connection between her employment and her fall.  This court reversed the compensation judge based on the “balancing test” used by this court in Bohlin v St. Louis County, 61 W.C.D. 69 (W.C.C.A. 2000), summarily aff’d (Minn. Jan. 16, 2001) and subsequent decisions to determine whether an injury arises out of employment.  On further appeal, the Minnesota Supreme Court reversed and reinstated the determination of the compensation judge.

In its decision, the supreme court reiterated that there must be some causal connection between the employment and the work injury.  That causal connection, however, does not rise to the level of direct or proximate cause as in tort law.  Dykhoff, 840 N.W.2d at 826 n.1, 73 W.C.D. at 871 n.1.  Citing its earlier decision in Nelson v. City of St. Paul, the court stated, “ ‘if the injury has its origin with a hazard or risk connected with the employment, and flows therefrom as a natural incident of the exposure occasioned by the nature of the work, it arises out of the employment.’ ”  Nelson v. City of St. Paul, 249 Minn. 53, 55-56, 81 N.W.2d 272, 19 W.C.D. 120, 123 (1957).

We find the compensation judge properly applied Dykhoff in the present case.  In his memorandum, the compensation judge noted that the work environment “encompasses more than simply the condition of the floor.”  (Memorandum at 5.)  He stated, “The increased risk in the instant case is the totality of circumstances existing at the time of the employee’s injury: specifically the employee’s accelerated pace in traversing the floor to get to the location at which he could fulfill his employment duty to determine the source of the leaking slurry and ascertain the corrective action required to end the leak before the employer’s manufacturing process was adversely affected.”  (Id.)  The compensation judge contrasted the facts in the present case with those in Dykhoff, in which there was:

The employer and insurer argue that because the employee fell on a flat dry surface as did the employee in Dykhoff, the employee’s claims should have been denied.  The compensation judge, however identified causative factors beyond the condition of the floor that connected the work environment with the injury.  “The ‘arising out of’ requirement can be satisfied even when the workplace condition connected to the injury is not obviously hazardous.”  Dykhoff, 840 N.W.2d at 827, 73 W.C.D. at 872-73; see also Kirchner v. County of Anoka, 339 N.W.2d 908, 36 W.C.D. 335 (Minn. 1983).

We conclude substantial evidence amply supports the compensation judge’s determination on this issue and, on this point, the decision is affirmed.

The employer and insurer have appealed from the compensation judge’s award of the bill from Grand Itasca.  The appellants contend that the intervention claim should have been denied because it was not filed on a timely basis.

Minn. Stat. § 176.361, subd. 2(a), provides in pertinent part:  “An application or motion to intervene must be served or filed within 60 days after a potential intervenor has been served with notice of a right to intervene . . . .  Where a motion to intervene is not timely filed under this section, the potential intervenor interest shall be extinguished . . . .”

The employee’s attorney sent notice of the right to intervene to Grand Itasca in a form dated April 13, 2015.  The motion/application to intervene filed by Grand Itasca was signed on July 17, 2015, and received by the Department of Labor and Industry on July 27, 2015, more than 90 days later.  The compensation judge noted that no affidavit of service was attached to the notice of Grand Itasca so the precise date the notice was sent to Grand Itasca could not be ascertained.  However, an affidavit of service for such a notice is not required by the rules or statute and, in any event, the motion to intervene was not filed a few days late.  The motion filed by Grand Itasca was clearly filed outside the 60 day period required by the statute.

The employee argues on appeal that the employer and insurer waived any objection to timeliness of the motion to intervene by agreeing to a continuance of the hearing set for July 15, 2015.  We find no basis in the record for that argument.  When the parties exchanged emails about a continuance with the compensation judge, Grand Itasca had not yet filed its application.  While the continuation seems to have been based, at least, in part, on a desire to explore the ramifications of Sumner,^[1] there is no suggestion in the emails exchanged by the attorneys that the employer would waive any objection to intervention claims based on timeliness.

Finally, the employee argues that the intervention claims of Grand Itasca should be awarded in the “interest of justice.”  The employee notes, as did the compensation judge, the willingness of Grand Itasca to provide care to the employee despite the refusal of both  the workers’ compensation insurer and the employee’s own health insurance to pay for that care.  We agree that the actions of Grand Itasca in this regard are laudable and the result here is unfortunate.  This court’s mandate is to make determinations based on the statute and the intervention by Grand Itasca is clearly barred by the statute.^[2]

The compensation judge’s award of the intervention claim of Grand Itasca is reversed.