KAYLA LEIN, Employee/Appellant, v. EVENTIDE, SELF-INSURED/MEADOWBROOK CLAIMS SERVS., Employer/Respondent, and SANFORD HEALTH and BLUE CROSS BLUE SHIELD OF N.D., Intervenors.

The employee appeals the compensation judge’s determination that her injury did not arise out of her employment. We reverse and remand.

Eventide is a senior living facility in Moorhead, Minnesota. The employee, Kayla Lein, began working there in 2011. In January 2015, she was an activities coordinator for Eventide, assisting residents with recreational programs.

On January 19, 2015, shortly after her work shift had started, Ms. Lein and a coworker went downstairs to use the vending machines on the first floor. Ms. Lein was going to the first floor by using what she described as the back stairwell. The employee testified that as she was descending the stairs, her “right foot slipped out from underneath” and she fell backwards, striking her head and back on several steps as she fell down the stairs. Ms. Lein was taken on a backboard by ambulance to the emergency room at Sanford Medical Center in Moorhead. She was diagnosed with a concussion, ankle pain, and a contusion to her left forearm and back.

Photographs introduced into evidence show a rather typical industrial type of stairs. The concrete block walls, handrails, and stair risers are all painted tan. The stair treads are unpainted concrete and have no anti-slip surface of any kind. The outer edge of the tread, or nosing, is part of the metal riser, is one inch in depth, and is painted the same color as the walls, risers, and handrails.

To defend against the claim, the employer and insurer hired Melissa Graftaas from Architecture Advantage to do a “stair investigation.” She noted the dimensions of the stairs, stated the stairs “are consistent with the building code requirements,” and concluded the stairs would not be a “special hazard” or pose “an increased risk to users.”

The employee’s attorney hired Douglas Crosby from Safety, Training, and Compliance, LLC, to review the stairs. His conclusion was that “the employer and/or building owner failed to supply a stair system that was free from defect for employees to use while ascending and descending upon the fixed stair system.” Specifically, Mr. Crosby referred to the absence of an anti-skid condition and, because of the paint uniformity, there was no “readily incorporated way to discern the different steps from each other.”^[1]

The employer and its insurer denied liability for the employee’s injury, alleging that the injury did not arise out of employment. The employee filed a claim petition which was heard by a compensation judge on February 26, 2016.

The compensation judge, in his Findings and Order, found that the employee was not “exposed to an increased risk as required by Dykhoff.”^[2] (Finding 10.) He determined the injury did not arise out of employment and denied the employee’s claim. In his memorandum, the compensation judge stated that the lack of an OSHA investigation, the failure to show a “defect” in the stairs, and the employer’s compliance with the building code were all significant factors in his determination.

The compensation judge adopted the argument of the employer and insurer that for the employee’s injury to have arisen out of her employment, she had to show an increased risk of injury. In the context of the instant case, the burden was put on the employee to establish a defect in the stairs or a failure by the employer to comply with a building code or OSHA rules. This case was tried as a negligence action with experts testifying as to the employer’s compliance or failure to comply with codes or safety standards. In deciding the case on this basis, the compensation judge applied a legal standard that is prohibited by the Workers’ Compensation Act and contrary to Dykhoff. We reverse and remand for further consideration in accordance with this opinion.

The statute clearly and unequivocally prohibits the consideration of negligence, stating:

The employer and insurer argue that the result in this case is mandated by the decision of the supreme court in Dykhoff. We disagree.

In Dykhoff, the supreme court considered whether the arising out of requirement in the statute could be satisfied by the application of the balancing test used in Bohlin^[3] and subsequent cases. The court rejected the use of the balancing test and held that there must be an increased risk of injury from employment for the injury to arise out of employment. The court did not suggest in any way that this was new law or was establishing a new burden for an injured employee to meet. Instead, the court reiterated that the increased risk analysis has always been the law in Minnesota. In determining whether an injury arises out of employment, it is necessary to consider the case law relied upon by the supreme court instead of simply repeating the phrase “increased risk” and applying negligence law.

In considering injuries occurring from an employee’s use of stairs, the supreme court stated, “if there is something about the stairway . . . that ‘increases the employee’s exposure to injury beyond that’ the employee would face in his or her everyday non-work life, an injury causally connected to that condition could satisfy the ‘arising out of’ requirement.” Dykhoff, 840 N.W.2d at 827, 73 W.C.D. at 873.

The supreme court was quoting from and referring to the decision in Kirchner v. Cnty. of Anoka, 339 N.W.2d 908, 911, 36 W.C.D. 335, 338 (Minn. 1983). Mr. Kirchner fell on the interior staircase of the employer’s premises when his knee “gave out.” The court found the requisite causal connection because the “staircase was located at Kirchner’s place of employment, and the injury occurred when the public use of the only handrail required Kirchner to negotiate the steps without the benefit of that protection.” There was no evidence in Kirchner that only having one handrail in the stairway where Mr. Kirchner fell was a “defect” or a violation of a building code.

In the present case, it is uncontroverted that the stairs did not have anti-slip treads and the employee testified her foot slipped, causing her to fall. In Dykhoff, the employee was unable to provide any connection between her injury and her employment other than her presence on the employer’s premises. That is not the case here. The employee provided the requisite causal connection to conclude that the injury arose out of employment.^[4]

We consider the compensation judge’s analysis with regard to whether Ms. Lein’s injury arose out of employment to be contrary to the statute, contrary to Dykhoff, and contrary to the precedent upon which Dykhoff was decided. We reverse the compensation judge’s decision and remand for determination of benefits to which the employee may be entitled as a result of this work injury.