ELLEN FORREST, Employee/Respondent, v. CHILDREN’S HEALTH CARE and BERKLEY RISK ADM’RS CO., LLC, Employer-Insurer/Appellants and SUMMIT ORTHOPEDICS, Intervenor.

AUGUST 16, 2018

No. WC18-6140

ARISING OUT OF & IN THE COURSE OF. Substantial evidence in the record supports the compensation judge’s determination that the employee’s injury, sustained on stairs located on the employer’s premises while she was in the course of her employment, arose out of her employment and is compensable.

    Determined by:
  1. David A. Stofferahn, Judge
  2. Patricia J. Milun, Chief Judge
  3. Gary M. Hall, Judge
  4. Deborah K. Sundquist, Judge
  5. Sean M. Quinn, Judge

Compensation Judge: William J. Marshall

Attorneys: Thomas A. Atkinson and Dana L. Gerber, Atkinson Law Office, P.A., St. Paul, Minnesota, for the Respondent. Edward Q. Cassidy, Fredrikson & Byron, P.A., Minneapolis, Minnesota, for the Appellants.




The employer and insurer have appealed the compensation judge’s determination that the employee’s injury arose out of her employment and from the compensation judge’s award of benefits. We affirm.


Ellen Forrest was employed as a respiratory therapist by Children’s Health Care. Her general duties were to help children who had breathing difficulty by providing therapy and tending equipment used by her patients. She typically had ten to fifteen patients to care for on a daily basis. There were usually more patients in the fall and winter. Children’s Health Care has facilities in both Minneapolis and St. Paul and the employee split her time between the two locations. In St. Paul, the employee’s patients were located on the fourth, fifth, and sixth floors and the respiratory department was located on the fourth floor. The employee testified she could take the elevator between floors but typically used the stairs if she was going up or down one or two floors.

On September 20, 2016, the employee was working at the St. Paul location. She had been on the sixth floor and was using the stairs to go down to the fourth floor to obtain a medical device. Each flight of stairs has ten or twelve steps, then turns at a landing, then another flight of ten or twelve steps. The steps were concrete with treads. Ms. Forrest testified she was descending the stairs on the left side and likely holding the handrail. She could not recall whether she was holding anything in her hands. As she reached a landing, she pivoted left to descend the next flight of stairs. She testified that when she pivoted to the left, her left foot did not pivot with her, and she felt a sharp pain in her left knee. The employee finished her work shift and continued to do her regular duties. The employee reported her injury to her employer on October 2, 2016.

The employee first sought medical care for her knee pain on October 10, 2016, when she saw Dr. Daren Wickum at Summit Orthopedics. She was referred by Dr. Wickum to Dr. Brent Warner, who diagnosed patellar chondromalacia and a meniscus tear. That diagnosis was confirmed by an MRI scan. Dr. Warner noted the employee’s MRI showed pre-existing arthritic changes but opined that the “meniscus tear likely resulted from the incident in September 2016.” He also concluded that “due to the necessary walking/standing, physical activity, and use of stairs at her job, I do feel that her condition has been aggravated and accelerated by her work environment.” (Ex. A.)

The employer and its insurer denied the employee’s claim, alleging that her injury did not arise out of her employment. The employer and insurer also had the employee evaluated by Dr. William Simonet, whose opinion was that the employee’s knee condition was caused by her pre-existing arthritic condition and was not related to her work injury.

The employee’s claim was heard on October 2, 2017. The compensation judge issued his Findings and Order on December 21, 2017. In relevant part, the compensation judge determined that “the preponderance of the evidence shows the employee sustained an injury to her left knee arising out of and in the course and scope of her work activities on September 20, 2016.” (Finding 13.) The compensation judge awarded the employee’s claimed medical expenses and related out-of-pocket expenses.

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).

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), summarily aff’d (Minn. June 3, 1993).


For a personal injury to be compensable, it must arise out of and in the course of employment “without regard to the question of negligence.” Minn. Stat. § 176.021, subd. 1. The parties agree the employee was in the course of her employment when she injured her knee on the stairs on her employer’s premises. The issue, as presented to the compensation judge and now to this court, is whether the employee’s injury arose out of her employment.[1]

The phrase “arising out of” refers to a causal connection between the injury and the employment, but not necessarily in the sense of proximate cause. Foley v. Honeywell, Inc., 488 N.W.2d 268, 271 (Minn. 1992); Gibberd by Gibberd v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988). The supreme court has held that the causal connection is established if the employee, while on the employer’s premises and in the course of employment, is subjected to an increased risk of injury. Hohlt v. Univ. of Minn., 897 N.W.2d 777, 781, 77 W.C.D. 509, 514 (Minn. 2017) (“causal connection exists because [the employee]’s employment exposed her to a hazard that originated on the premises as part of the working environment”).

In this case, the compensation judge determined “the employee was required to ascend and descend the stairs on a regular basis to access the various floors as required by her job. That alone increases her risk of injury.” (Memorandum, p. 4.)

Appellants contend that the compensation judge erred in concluding that the employee’s use of the stairs increased her risk of injury because her injury occurred on the landing between flights of stairs, rather than on the stairs themselves, and that unexplained injuries which occur on dry, clean, and flat surfaces are not compensable under Dykhoff.[2] We reject appellants’ argument, and consider the landing to be a component of the stairway, as traversing the landing is necessary to complete the first flight of stairs and to access the next flight of stairs. On this record, the employee was injured as she pivoted to begin descending the next flight of stairs and her injury is, therefore, an explained injury distinguishable from that in Dykhoff.

Appellants also contend that the compensation judge erred in concluding that the employee was required to use the stairs as part of her job, and that she could have alternatively used an elevator. A similar argument was recently rejected by the supreme court in Roller-Dick v. CentraCare Health Sys., No. A17-1816 (Minn. Aug. 8, 2018) as it “smacks of a return to the negligence standard the Workers’ Compensation Act expressly rejects.” Id. at 11 (citing Minn. Stat. § 176.021, subd. 1).

Appellants also contend that this case is controlled by Kubis v. Cmty. Mem’l Hosp. Assoc., 897 N.W.2d 254, 77 W.C.D. 543 (Minn. 2017), and that Kubis stands for the proposition that use of a stairway at work does not represent an increased risk of injury. We disagree. In Roller-Dick, the supreme court stated that the central holding in Kubis related to this court’s scope of review in cases involving a factual dispute, and because no factual dispute was present in that case, Kubis did not control. Roller-Dick, slip op. at 8-9. Similarly, the case at hand does not present a factual dispute and Kubis does not control.

Not decided in Kubis or in Roller-Dick was whether, absent other circumstances, the use of the stairs in the course of employment represents an increased risk of injury.[3] This court was presented with that very question in Lein v. Eventide, No. WC17-6101 (W.C.C.A. Dec. 29, 2017), where we held that unlike the neutral risk of traversing a clean flat floor considered in Dykhoff, use of stairs is not a neutral risk but instead represents an increased risk of injury.

As we explained in Lein, the statute only requires an increased risk of injury. There is no requirement that there must be a hazard in the sense of something wrong with the stairs, as that amounts to a negligence standard which is expressly forbidden by the statute. We acknowledge the concern that under the increased risk analysis, a conscientious employer cannot avoid a workers’ compensation claim in this situation. However, this is a function of the ‘grand bargain’ between workers and employers that the workers’ compensation laws were designed to address.[4] An employee’s benefits are not increased because of negligence or carelessness by an employer, and similarly, an employee’s rights to benefits are not foreclosed or reduced because an employer attempted to minimize risk for employees.[5] The stairs on an employer’s premises constitute an increased risk of injury, and for an employee such as Ms. Forrest who is in the course of her employment and is injured on stairs located on her employer’s premises, the claim is compensable under Minnesota law.

We conclude substantial evidence supports the compensation judge’s determination that the employee’s use of stairs in the course of her employment represented an increased risk of injury which satisfies the arising out of provision in the statute. We affirm.

[1] In its brief, appellants assert that the primary issue on appeal is whether the employee’s injury arose out of her employment. Whether the employee’s medical treatment, out-of-pocket expenses, and mileage are causally related to her work injury is also argued. In his Findings and Order, the compensation judge found those items to be related to the work injury, and noted reliance on the persuasive causation opinion of Dr. Warner and the IME doctor’s statement that the employee’s injury is consistent with her reported mechanism of injury. We conclude that the compensation judge’s conclusion in this regard is supported by substantial evidence in the record.

[2] Dykhoff v. Xcel Energy, 840 N.W.2d 821, 73 W.C.D. 865 (Minn. 2013).

[3] The supreme court in Roller-Dick declined to reach this question. Roller-Dick, slip op. at n.6.

[4] “The worker’s compensation system in Minnesota is based on a mutual renunciation of common law rights and defenses by employers and employees alike.” Minn. Stat. § 176.001.

[5] “Under our workers’ compensation system, employees give up their rights ‘to sue for damages over and above medical and health care benefits and wage loss benefits’ and employers, in return, give up ‘rights to raise common law defenses such as lack of negligence, contributory negligence on the part of the employee, and others.’” Roller-Dick, slip op. at 4 (internal citations omitted).