SANDRA R. WILLIAMS, Employee/Respondent, v. ISD 2396 and RAM MUT. INS. CO., Employer-Insurer/Appellants, and BCBS OF MINN., AFFILIATED COMTY. MED. CTR. (ACMC), and MEEKER MEM’L HOSP., Intervenors.

FEBRUARY 17, 2016

No. WC15-5820

ARISING OUT OF & IN THE COURSE OF.  Where the employee was injured when her foot landed on a metal strip while she was descending bleachers she was setting up in the employer’s gymnasium, substantial evidence supported the compensation judge’s finding that the injury arose out of her employment.

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

Compensation Judge:  Stacy P. Bouman

Attorneys:  Jerry J. Lindberg, Lindberg Law, P.C., Sauk Rapids, Minnesota, for the Respondent. Noelle L. Schubert, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota, for the Appellants.




The employer and insurer appeal the compensation judge’s conclusion that the employee’s injury arose out of her employment.  We affirm.


On January 24, 2014, the employee, Sandra Williams, was at work in her job as a custodian for ISD 2396, the Atwater-Cosmos-Grove City Public Schools.  Among other duties, she and another custodian were tasked that day with setting up the school gymnasium for a 6:00 p.m. basketball game.  The employee testified that setting up this task generally involved sweeping and polishing the gym floor, as well as setting up the bleachers and a scoring table and chairs for the basketball players.  The employee and her co-worker had only about a half hour to perform these tasks, as the gymnasium was in use for other purposes until 5:00 p.m., but the teams and spectators were scheduled to be allowed into the gymnasium at 5:30 p.m.  The bleachers were extended mechanically, but the job required climbing up and down them several times to pull up and attach some backrests at the upper rows and to install various handrails and guardrails.   The employee testified that simply extending and preparing the bleachers normally took about 15 minutes.  She testified that she and her co-worker felt “rushed” and were “scrambling to get the stuff into place.”

In uncontroverted testimony, the employee described the bleacher steps, which were made of plywood, as both higher and deeper than the steps of an ordinary stairway.  Photographs were in evidence showing that the steps were about 27 inches deep and between ten and eleven inches high.  At the front of each step is a raised metal lip or ridge.  Around 5:15 p.m., the employee had finished installing the handrails on one side of the bleachers and was returning to the gym floor.  As she was descending the bleachers her left foot hit the metal lip of a step.  She heard a pop and felt a sudden onset of pain in her left foot.  After this, she was unable to walk normally, and could perform only those parts of the job she could do on riding equipment.  She was able to complete her shift because her co-worker assisted her by taking on some of her duties.  X-rays the next day revealed a Jones fracture to her foot.

In cross-examination testimony, the employee agreed that the bleacher step where she was injured was not defective, and that she had noticed no water or other substances on the step.  She was not carrying anything at the time of the injury.  She acknowledged that she had previously set up the same bleachers on numerous occasions without sustaining injury.  She also acknowledged that some years previously, when her children had been students at the same school, she at times ascended and descended the same bleachers while off work, as a spectator attending sporting events in which her children participated.

The employer and insurer conceded that the injury was in the course and scope of the employment, but denied liability, arguing that the injury did not arise out of the employment.  The compensation judge found that the injury was compensable, and the employer and insurer appeal.


There is no dispute or conflict in the evidence as to the material facts related to the issues on appeal.  The issues for this court are whether, on the basis of the undisputed evidence, the employee’s injury arose out of and in the course of her employment.  This court’s review of a compensation judge’s decision based on undisputed facts presents solely questions of law which we consider de novoKrovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993); Karstad v. Myles Lorentz, Inc., No. WC14-5775 (W.C.C.A. May 20, 2015).


To be compensable under the workers’ compensation statute, a personal injury must arise out of the employment and the employee must be in the course of employment at the time of the injury.  Minn. Stat. § 176.021, subd. 1.  “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.”  Gibberd by Gibberd, 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988).  The employer and insurer concede that the employee’s injury occurred in the course of employment, but assert that the compensation judge erred as a matter of law in finding that the injury “arose out of” the employment.

The employer and insurer contend that the compensation judge failed to apply the supreme court’s recent holding in Dykhoff v. Xcel Energy, 840 N.W.2d 821, 73 W.C.D. 865 (Minn. 2013).  In Dykhoff, the supreme court held that an employee must independently show that an injury both arose out of and in the course of the employment, striking down a balancing test first set out in Bohlin v. St. Louis County, 61 W.C.D. 69 (W.C.C.A. 2000).  With respect to the “arising out of” requirement, the court in Dykhoff stated:

We have said that “[t]he phrase ‘arising out of’ means that there must be some causal connection between the injury and the employment.”  Foley v. Honeywell, Inc., 488 N.W.2d 268, 271 (Minn. 1992).  This 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, or . . . peculiarly exposes the employee to an external hazard whereby he is subjected to a different and a greater risk than if he had been pursuing his ordinary personal affairs.”  Nelson v. City of St. Paul, 249 Minn. 53, 55-56, 81 N.W.2d 272, 275 (1957); see also id. at 56, 81 N.W.2d at 276 (“[I]f 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.”).

Dykhoff, at 826, 73 W.C.D. at 871-2.

The employee in Dykhoff had sustained an unexplained fall while walking on a dry, level floor.  The employee testified that the floor was slippery; however, the supreme court concluded that the compensation judge’s finding that the floor was not slippery was adequately supported by the other evidence.  The court expressly held that, in the absence of any proof that something about the floor increased the risk of injury, the employee had failed to meet her burden of proving that the injury arose out of the employment.

Appellants here argue that, by analogy with the Dykhoff decision, the employee failed to prove that there was a greater risk of injury inherent to the bleachers when the employee traversed them at work than they would have presented to members of the general public.  They point out that the compensation judge expressly found that the injury occurred when the employee had completed setting up the bleachers such that they were “ready for public use,” and that the employee testified that the bleachers were not defective, that there were no substances on the bleachers, and that she was not carrying anything at the time she was injured.  Thus, they contend, the employee had not shown that she had been exposed to a risk beyond that to which she would have been exposed in her everyday life, had she been on the bleachers as a member of the general public attending the game.

We recently addressed a similar argument in Hohlt v. University of Minnesota, No. WC15-5821 (W.C.C.A. Feb. 3, 2016).  In Hohlt, we reversed the compensation judge’s conclusion that an injury sustained in a slip and fall on an icy sidewalk did not arise out of employment because icy sidewalks are a hazard commonly encountered by the general public, and that the employee had therefore failed to show that the employment had increased her risk of injury beyond that which she would have been exposed in her daily life.  The employer’s argument, adopted by the compensation judge, was that the supreme court in Dykhoff had articulated a new test for whether an injury arose out of the employment, in which, to be compensable, a work injury must arise from a risk that is unique to the employment, being distinct from a risk that might encountered by a member of the general public.  We do not read Dykhoff as changing the longstanding increased risk test generally used in arising out of cases.  In Hohlt, we reviewed the increased risk standard in the context of the “unique risk” argument, and concluded that

a personal injury is compensable if the employee encounters an increased risk of injury on the employer’s premises because she is an employee and the injury follows from that risk.  It is irrelevant if members of the general public might encounter the same risk because they were not brought to that risk by employment.  This circumstance has been labeled “increased risk” rather than “special risk.”

Hohlt, slip op. at 5.

In the present case, the employee was brought to the risk by her employment, not by her activities of daily living.  In addition, we note that the evidence showed that the bleacher steps were significantly deeper and higher than the kind of steps regularly encountered in everyday life.  Further, the employee testified that over the past half dozen years in her job, she had been required to set up the bleachers about 100 times, a task which involved ascending and descending them several times each time they were set up.  To the extent that descending and ascending bleachers bears some unusual risk of a misstep and of injury, the employee’s risk of such an injury was thus increased by the duties of her employment.  In addition, the employee testified that she was rushed by the limited time available to complete the set up tasks in the gym that day.  The compensation judge could reasonably conclude that the risk of injury the employee confronted in descending bleachers was increased by the requirements of the employment beyond the risk she would otherwise have faced in her daily life.

The employer and insurer argue that the employee’s testimony about being rushed was not credible, since she did not mention being rushed or hurried in the initial reports of her injury and initial medical treatment records, and since she had completed setting up the bleachers by the time she was injured.  We note, however, that the employee testified that setting up the bleachers was only one of the tasks that needed to be completed in setting up the gymnasium.  The absence of corroboration that the employee was rushed in the medical records is not, in itself, contradictory to the employee’s testimony.  We note, further, that the compensation judge found the employee’s testimony credible.  The employer and insurer’s arguments here provide no basis to disturb the compensation judge’s determination of credibility.  Assessment of witness' credibility is the unique function of the trier of fact.  Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978).  We affirm.