RYAN KELTNER (DECEASED EMPLOYEE) BY DELINDA WALTERS, Employee/Respondent, v. SPARTAN STAFFING, LLC and AIG/ESIS, INC., Employer-Insurer/Appellants, and AVERA MARSHALL HOSP., SURGICAL INST. OF S. DAKOTA, PC, N. MEM’L AMBULANCE SERVS., Intervenors.

The employer and insurer have appealed the compensation judge’s findings that the employee’s injury on February 23, 2015, and death on February 24, 2015, arose out of and in the course and scope of his employment. We affirm.

Ryan Keltner, the employee, died on February 24, 2015, as the result of a fall he sustained on February 23, 2015, at the distribution center operated by Schwan’s in Marshall, Minnesota. Mr. Keltner was employed by Spartan Staffing at the time he fell and was assigned to work at the Schwan’s facility. At that time, Schwan’s was ending its contract with Spartan and Mr.Keltner was one of two or three Spartan employees at the distribution center in February 2015. Just over 100 people were employed at the distribution center.

Mr. Keltner was 23 years old at the time of his death. He had been living in California but in the fall of 2014 moved to Marshall. In Marshall, the employee lived with his mother, Delinda Walters (the petitioner in this matter) and her partner, Arnie Modtland. Mr. Modtland had worked at the Schwan’s distribution center as an employee of Spartan Staffing for some months in both 2009 and 2013 and he helped the employee get a job at Spartan. The employee started working there in December 2014.

Mr. Keltner was assigned to the night shift as a material handler. Work hours for the night shift were from 8:00 p.m. to 6:15 a.m. Generally, employees would gather in the break room around 7:30 to find out from a supervisor what their assignments would be that night. At 7:45, employees would punch in and then go to the locker room where they would put on their work clothes, referred to as freezer gear, before starting their assignments. Spartan employees used paper time cards to sign in. Mr. Keltner’s time cards showed a sign-in time of 7:45 every night he worked at the Schwan’s facility. Mr. Modtland testified that it was common for Spartan employees to fill out time sheets several days at a time, “You could do it a week in advance if you wanted to.”^[1]

The distribution center contains a large freezer section of 187,000 square feet. The temperature inside the freezer is set “anywhere from 15 to 20 below.”^[2] Freezer gear worn by employees inside the freezer area consisted of heavy boots, insulated coveralls, hooded sweatshirts, mittens, and hardhats. Because of the sweatshirt hoods, hardhats did not fit well and the chinstraps did not fasten. Mr. Modtland stated that the hardhat would fall off every time an employee bent over to pick something up.

Mr. Keltner was assigned to one of two positions at the distribution center: unloader or picker. Trucks came into the freezer section through large doors. As an unloader, the employee would take cases of product from the trucks and place them on pallets. The pallets would be delivered by forklift drivers to areas near three different conveyor belts for sorting by pickers. These areas are known as “pick lanes.”

Each conveyor belt is located on one of three separate tiers or levels in the distribution center. The first tier is at floor level, the floor of the second level is 7 feet above the floor, and the floor of the third level is 18 or 19 feet off the floor. One side of each level is completely open to the floor below with no fencing or barrier. The purpose of the open edge was to allow forklifts to put pallets next to the conveyor belt running down the middle of each tier. An employee working as a picker would take product off the pallet and place it on a conveyor belt. The floor of the tier where the pallets are stacked is not a flat surface, but is made up of rollers to allow the pallets to be moved closer to the conveyor belts.

Hanging above the floor on the third tier were signs that read, “Do not go beyond this point. Wear fall protection.” The sign was placed four feet from the open side of the floor, about midway between the conveyor belt and the open side. There was conflicting testimony on possible consequences of an employee going past the point of where the sign was hanging. Mr. Keltner’s direct supervisor, Lee Hettling, said that doing so would be grounds for immediate termination but also stated that he had never heard of any violation of the rule. Brad Botsford, the general manager at the facility for Schwan’s stated that “most cases we would probably write them up depending, probably give them a day off for it or something.”^[3] Mr. Botsford did not say that any violation had ever occurred.

Employees did not wear fall protection while working on the conveyor belt. If a box or product fell off a pallet and landed in the area beyond the sign, the employee was expected to go down to the main floor, report the incident to a supervisor, put on a full-body safety harness which was kept in the break room and not in the freezer area, and use a “man lift” to reach the level where the product had fallen. The safety harness attached by means of a lanyard to the man lift. The employee would then replace the fallen box. The man lift would then be lowered and the employee would remove the safety harness. The employee would walk back up the stairs, and return to work. There was no testimony regarding adherence to this procedure.

Mr. Keltner was scheduled to work on February 23, 2015, but he had a cold that day and had decided not to go to work. He received a phone call from a co-worker later in the day who said that he was also not going to go to work because he was ill. Mr. Keltner thought this would leave his work crews shorthanded and decided to go to work anyway.

While Mr. Keltner’s timecard shows that he signed in at 7:45 p.m. on February 23, video from a security camera showed the employee in the stairwell heading to the third or uppermost level of the conveyor belt section at 7:42 p.m. Marshall police received a call about 7:50 p.m. that an individual was on the floor in the freezer area and was bleeding. The individual was Ryan Keltner. He was wearing his work gear and was unresponsive. His hardhat was found on the top of a pallet on the third level. Mr. Keltner was taken to the Marshall Hospital by ambulance. He died there the next day without regaining consciousness. A Minnesota OSHA investigation determined that the employee’s death was the result of his fall from the third level of the pick lanes.

Mr. Keltner had no dependent survivors. Under Minn. Stat. § 176.111, subd. 22, when an employee’s death is the result of personal injury arising out of and in the course of employment, and there are no dependent survivors, the employer is to pay $60,000.00 to the employee’s estate. The employer and insurer denied that Mr. Keltner’s death arose out of and in the course of his employment. The employee’s mother, on behalf of the estate, filed a claim for benefits. The claim was heard by Compensation Judge Sandra Grove on October 5, 2016. The compensation judge issued her Findings and Order on November 15, 2016. The compensation judge determined that the employee’s death arose out of and in the course of employment. She awarded benefits to the petitioner. The employer and insurer have appealed.

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(3). 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).

The employer and insurer argue in their appeal that the compensation judge erred in determining that the employee’s injury and subsequent death arose out of and in the course of his employment. The appellants also contend that the compensation judge erred in failing to find that the employee’s claim was barred under Minn. Stat. § 176.021 because his injury was intentionally self-inflicted, and the compensation judge erred in failing to apply the “prohibited act” defense. We consider these arguments below.

For a personal injury to be compensable, it must arise out of and in the course of employment. Minn. Stat. § 176.021 subd. 1. We consider first the question of whether the employee was in the course of his employment when injured.

The compensation judge determined that Mr. Keltner was in the course of his employment when he was injured in his fatal fall.^[4] The compensation judge acknowledged in her memorandum that the employee had not started performing his job duties, but she pointed out that the scope of employment includes a reasonable time before and after work hours for ingress and egress, citing Johansen v. Acton Constr. Co., Inc., 264 Minn. 540, 119 N.W.2d 826, 22 W.C.D. 400 (1963).

The compensation judge also identified in her memorandum the evidence she found persuasive on that issue. The evidence to which she referred was credible testimony of the employee’s mother that the employee left their apartment just after 7:30 p.m. and was trying to get to work to check in by 7:45. The employee was wearing his freezer gear at the time of his fall. A security camera showed him going up the stairs at 7:42 p.m. to the third level where he could have been assigned. He fell from the picking area where his team had been assigned the last day he worked.

The appellants argue, however, that the employee had not actually begun to work and they cite to this court’s decision in Gilbert v. Indep. Sch. Dist. No. 625, 73 W.C.D. 69 (W.C.C.A. 2013) in support of their position. That decision does not support the appellants’ position. The employee in Gilbert was a school custodian who worked a scheduled shift which ended every day at 4:30 p.m. On the evening of his unexplained death, the employee was seen on security cameras in the school as late as 7:56 p.m. No employment reason was ever established for his presence in the school at that time. We affirmed the factual determination of the compensation judge that the employee was not in the course of employment at the time of his death.^[5]

In contrast to the facts in Gilbert, Mr. Keltner was on the employer’s premises at the time he was expected to be there. He had signed in. He was wearing the freezer gear he would need to wear during his shift. He was proceeding to a site in the warehouse where he had last worked. We find substantial evidence to support the compensation judge’s determination that the employee was in the course of his employment at the time of his fall.

We consider then the issue of whether the employee’s injury arose out of employment. The question here is whether the employee encountered an increased risk of injury as the result of his employment. Dykhoff v. Xcel Energy, 840 N.W.2d 821, 73 W.C.D. 865 (Minn. 2013).

The compensation judge found that the injury arose out of Mr. Keltner’s employment. She explained in her memorandum that “the risk of falling from the picking area was a ‘hazard or risk connected with the employment’ and ‘a natural incident of the exposure occasioned by the nature of the work’ within the meaning of Nelson v. City of St. Paul, 249 Minn. 53, 56, 81 N.W.2d 272, 276, 19 W.C.D. 120, 123 (1957); quoted in Dykhoff v. Xcel Energy, 840 N.W. 2d 821, 826, 73 W.C.D. 865, 871-72 (Minn. 2013).” The appellants raise no argument to dispute this finding.

The compensation judge’s finding that the employee’s injury and death arose out of and in the course of his employment is affirmed.

The employer and insurer argued at the hearing that the employee’s death was not compensable because he was engaged in a prohibited act at the time of his fall. Specifically, the appellants allege that, in order to fall off the edge of the tier, the employee must have passed the point where the warning sign was hanging. According to the employer and insurer, this action by the employee constituted a prohibited act which precluded a finding of compensability.

The rule that an employee injured while committing a “prohibited act” is precluded from receiving workers’ compensation is not found anywhere in the statute. The rule was first enunciated by the Minnesota Supreme Court in Rautio v. Int’l Harvester Co., 180 Minn. 400, 231 N.W.2d 214, 6 W.C.D. 213 (1930). Quoting a decision from the Illinois Supreme Court, the court in Rautio stated:

The compensation judge itemized the factors in her memorandum and explained the basis for her conclusion in a review of the evidence taking up almost half of her memorandum. In this appeal, the appellants advance alternate explanations of the evidence and rely in large part on the deposition testimony of a supervisor, Lee Hettling. It is clear from the memorandum, however, that the compensation judge did not accept Mr. Hettling’s opinion and formed her conclusions based on the totality of the evidence.

Substantial evidence as set out in the compensation judge’s well-reasoned and well-written memorandum supports the compensation judge in her factual determination on this issue. We affirm.

“If the injury was self-inflicted . . . then the employer is not liable for compensation. The burden of proof on these facts is upon the employer.” Minn. Stat. § 176.021, subd. 1.

The employer and insurer argued at the hearing that the employee’s fall and death were self-inflicted and not compensable under the statute. In support of their position, the appellants referred to some medical records, which indicated the employee had emotional problems when he was a teenager, to a statement allegedly made to a hospital nurse by the employee’s girlfriend, Delora Wade, that she thought the employee’s fall was on purpose, and to a statement allegedly made to the police by a co-worker that the employee used methamphetamines.

The compensation judge did not find this evidence persuasive. She noted that Ms. Wade testified “emphatically and credibly” that she had told the nurse she did not think the fall was on purpose. Despite the co-worker’s statement to the police, a drug test done at the hospital was negative. Both the employee’s mother and her husband testified the employee was happy with his job and looking forward to becoming a permanent Schwan’s employee. The compensation judge also found the circumstances of the employee’s death, including the employee being in a hurry to get to work and the employee putting on all the gear he needed for work to be evidence that the employee did not intend to commit suicide.

In their brief, the appellants recognize that it is the role of the compensation judge to consider conflicting evidence and make a determination as to the evidence that the compensation judge finds to be most persuasive. The appellants argue that the testimony of Ms. Wade and Ms. Walters should not have been accepted because of conflicts with statements given to the police in their investigation. The witnesses were cross-examined on this point and the compensation judge nevertheless found their testimony to be credible.

We affirm the compensation judge’s findings and award of compensation.