The employee is a registered nurse.  In addition to the job with the employer, Community Memorial Hospital, she also worked as a home health nurse caring for her mother and paraplegic brother.  On June 18, 2014, while working at Community Memorial, a code was called requiring all available staff to respond.  At the time it was called, the employee had already worked 15 minutes past her scheduled leave time and she was in report, giving the oncoming shift nurses information regarding the patients.  She responded to the code with her supervisor.   The code was on the first floor.  The employee’s station was on the second floor.  Upon arriving at the code, the employee discovered that it was a mock code which required her to respond as if it were an emergency situation.  At the conclusion of the mock code, the employee called for an elevator to return to her reporting station.  The elevator arrived but was full of equipment from the code.  She chose to take the stairs next to the elevator.   She rushed up the stairs to return to the nursing station when she fell injuring her right shoulder.

The employee sought treatment for her right shoulder injury with Dr. Thomas Kaiser who diagnosed her with a torn rotator cuff and performed a surgical repair on October 20, 2014.  She was placed on restrictions of no use of the right arm and light duty work.  She continued to care for her brother as a home health nurse missing no time from her work there.  According to Dr. Kaiser, this was difficult for her.  Because she continued to work the home health job, she claimed temporary partial disability benefits for the difference between what she had earned in two jobs and what she now earned as a home health care nurse.

The employer and insurer denied primary liability on the basis that a fall on steps which were not defective in any way did not arise out of the employee’s employment based on Dykhoff v. Xcel Energy, 840 N.W.2d 821, 73 W.C.D. 865 (Minn. 2013). They retained Dr. Paul Wicklund who examined the employee and opined that the fall on the stairs at work on June 18, 2014, tore the rotator cuff.  He also determined that the surgery was reasonable and necessary.  He restricted her to no use of the right arm with an eventual return to light duty work.  He further opined that she had not reached maximum medical improvement.

The employee filed a claim petition seeking payment of benefits for the right shoulder injury.  At the hearing, the employee maintained that the work environment caused her to fall.  While she agreed that the stairs complied with applicable building code and were not defective, she maintained that she was fatigued after working 7 shifts in a row.  Her legs were heavy and tired at the end of her shift.  She testified that she felt pressure to comply with job requirements of logging out on a timely basis and felt rushed to report patients’ status to the nurses on the next shift.  Due to a prior knee injury, she testified that she rarely took the stairs and mostly took the elevator.^[1]  But because the elevator was unavailable, in a rushed decision, she chose to take the stairs.

The employer called two witnesses who testified and submitted time records that the employee only worked four shifts, not seven as the employee claimed.  An employer witness also testified that contrary to the employee’s concern about the hospital requirements for timely logging out, there was no such policy or concern on their part.  Furthermore, the employee had not been disciplined in the past for working overtime.  The employer witness also testified that there were two other elevators next to the stairs which were available, contradicting the employee’s implication that she was forced to take the stairs.

The compensation judge found that the employee’s claim that she was rushing up the stairs because she felt pressured to do so because of hospital policy regarding overtime was not credible.^[2]  He reasoned that the general allegations of work stress between management personnel and some of the nurses was insufficient to satisfy the increased risk test under the Dykhoff analysis.  He concluded that no evidence was presented demonstrating that the employee was under any medical restrictions limiting or prohibiting her use of stairs.  There was also no evidence that any self-perceived limitation the employee may have regarding the use of stairs was reported to the employer.  The compensation judge denied the employee’s claim because the employee did not show an increased risk by a preponderance of the evidence.  He found that the employee’s injury did not arise out of her employment.  The employee appeals.

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 (2014).  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).  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, 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 evidence or not reasonably supported by the evidence as a whole.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

“[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 Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

For a personal injury to be compensable under the workers’ compensation statute, it must arise out of employment and the employee must be in the course of employment at the time of injury.  Minn. Stat. § 176.021, subd. 1.  In this case, the parties agreed that the injury occurred during the course and scope of her employment.  The issue before the court is whether the employee’s injury arose out of her employment with Community Memorial Hospital.

On appeal, the employee argues that the compensation judge erred by interpreting Dykhoff so as to require additional and unwarranted burdens.  She argues that Dykhoff does not require an employee to establish a premises liability claim in order to prove that an injury arose out of her employment.  She argues that she was not required to carry the burden to prove that the employer’s policies caused an increase in the risk which led to her injury.  To do so would require that the employee prove an element of tort liability which is contrary to the underlying policy of the workers’ compensation act which is designed to compensate an injured worker without showing fault or negligence.  The employee further argues that the compensation judge erred in requiring the employee to prove that her injury resulted from express policies set forth by the employer and not by her subjective belief that she was rushed to complete a report for the next shift.  She argues that any finding to the employer’s policies and procedures is irrelevant to an increased risk test under Dykhoff.  Finally, the employee argues that the compensation judge erred in not finding that the employee was tired, which was claimed as a factor which increased the employee’s risk of injury.

The employer and insurer respond that this case is simply one in which the employee failed to meet her burden of proof in establishing that her employment placed her at an increased risk of injury.  The compensation judge rejected the employee’s claim that she was hurrying up the stairs to avoid getting into trouble for working overtime.  In stressing the importance of the factual findings, the employer and insurer argue that the compensation judge simply did not believe the employee’s assertion that she was rushing up the stairs to log out and avoid overtime.  Furthermore, the stairs were not defective giving no basis to overturn the compensation judge’s findings.

To be clear, contrary to the employer and insurer’s defense, there was no contention that the stairs were defective.  The employee openly acknowledged that there was nothing wrong with the stairs.  The issue here is whether the employee’s employment increased her risk of injury.  The judge found that the claim that she was rushing up the stairs because she felt pressured to do so because of the hospital policy encouraging employee’s to log out on a timely basis at the end of their shifts is not credible.  Regarding questions of credibility, this court has limited ability to review the decision.  However, the employee raises two salient points.  First, the employee’s claim that she was tired due to her work schedule was not addressed by the compensation judge.  Since fatigue has been held to increase the risk of work injuries, then that issue should have been addressed by the compensation judge.  And second, if an employee feels rushed to get her job completed and is injured as a result, it is irrelevant what the hospital employer’s policies are concerning overtime.  Here, where the employee was rushing not only because of her perception of overtime policy, but more importantly because she was required to report to the next shift, and in the process falls, the arising out of element is satisfied.

Where fatigue arises from the employee’s work activities resulting in injury, fatigue meets the arising out of element of the compensability standard.  Hed v. Brockway Glass Co., 309 Minn. 73, 224 N.W.2d 28, 28 W.C.D. 448 (1976).  In Hed, the employee suffered from exhaustion after working longer than normal hours in hot conditions laying 12 pound glass bricks into a glass furnace.  The temperature in the work area was so warm that the employees perspired freely working in T-shirts.  Id. 244 N.W.2d at 29.  Hed lost consciousness while driving home due to fatigue resulting from his employment.  Unlike this case, in Hed, there were witnesses testifying to the extent of fatigue and the difficult work environment.  And unlike this case, in Hed, there were medical causation opinions which validated the employee’s claim that the work injury resulted from fatigue.  Id.  The employee testified that she was not on her feet continuously and was able to sit.  Based on the evidence in the record here, there is no independent verification to support the employee’s claim that she was fatigued and the fatigue caused her injury.  While it is true that the compensation judge made no finding as to whether the employee was actually fatigued from her employment, substantial evidence in the record does not appear to support this claim.

Similar to fatigue, hurrying has been found to be the connection between an employee’s injury and the “arising out of” standard for compensability.  Hodge v. Hodge Constr., 376 N.W.2d 694, 38 W.C.D. 288 (Minn. 1985) (pressure to comply with a scheduled completion date doing the work of eight hours in four demonstrated the arising out of standard where the employee suffered a heart attack); Adickes v. City of Montrose, slip op. (W.C.C.A. April 27, 1991) (volunteer firefighter’s heart attack came on from hurrying to the scene of a fire and wearing heavy equipment on a humid 90 degree day).

The compensation judge found that the employee was running up the stairs at the time of her injury because it would be faster.^[3]  While the testimony presented at the hearing by the employer witnesses focused on the fact there was no hospital policy regarding overtime, the employer did not dispute the second motivation for rushing.  The employee testified that it was part of her job to report to the next shift on what happened to the patients for continuing care.^[4]  She rushed to get there by running up the steps and fell in the process.  This testimony is uncontroverted and unappealed.  It alone establishes that the employee was hurrying to complete a task which arose from her employment.

The compensation judge concluded that Dykhoff requires a showing of increased risk to demonstrate that an injury arises out of employment.  In Dykhoff, the employee fell for no identified reason.  In this matter, the employee offered two separate reasons, fatigue and hurrying.  Although the compensation judge did not address the fatigue argument in his findings, substantial evidence nevertheless fails to support the employee’s claim.  With respect to hurrying, the employee provided two different motivations, concern over accruing overtime and needing to promptly report to the oncoming shift.  The compensation judge found that the first motivation lacked credibility and we will not disturb that finding.  However, the second motivation for need to promptly report to the oncoming shift was supported by the record as a whole and not addressed by the employer and insurer or the compensation judge.  The employee was rushed to report to the next shift and while rushing to report to the next shift she fell on the stairs thereby establishing a connection that arose out of her employment.  Where an employee who normally avoids the stairs due to prior knee problems, takes them because she feels rushed to report to the next shift, and in the process runs up the stairs and falls, the arising out of element is established.  Because the evidence is uncontroverted in this regard, we reverse the compensation judge’s decision and find that the employee’s injury arose out of her employment.