DANIEL S. JAMES, Employee/Appellant, v. DULUTH CLINIC and BERKLEY RISK ADM’RS CO., LLC, Employer-Insurer/Respondents.

AUGUST 21, 2018

No. WC18-6128

ARISING OUT OF & IN THE COURSE OF. An employee who planted his feet and twisted while engaged in work activities met his burden of proof to establish that his injury arose out of his employment.

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

Compensation Judge: John R. Baumgarth

Attorneys: Eric W. Beyer, SiebenCarey, Duluth, Minnesota, for the Appellant. Edward Q. Cassidy, Fredrikson & Byron, P.A., Minneapolis, Minnesota, for the Respondents.




The employee appeals from the compensation judge’s denial of his claim for workers’ compensation benefits related to a knee injury sustained on June 6, 2016. We affirm the appealed factual findings, but reverse the compensation judge’s finding and order that the employee’s injury did not arise out of his employment.


On June 6, 2016, the employee was employed as a nurse anesthetist performing moderated anesthesia care (MAC) on a patient during a colonoscopy procedure. MAC involves administering medication to anesthetize a patient, monitoring the vital signs of the patient, ensuring the patient is breathing properly, adjusting the amount of the medication as needed, and discontinuing the medication at the end of the procedure. The process requires the employee to observe the patient and properly chart the entire procedure, including the patient’s well-being, the amount of medication used, and when the medication is discontinued. This charting is done on a computer in the procedure room.

The procedure room is small relative to the amount of equipment in the room, making it a “tight space.” (Finding 2). The employee also described the room as a “confined area.” (T. 22-23). The employee sits with the patient lying on a table to his one side, and with the pump adjustments on his other side. In this position, the employee can visualize the patient and the equipment monitors, and he can adjust the pump with his hands without leaving his seated position. During the entirety of these procedures, the employee testified that he is 100% focused on the patient. (T. 18). Even after the medication is discontinued, the patient remains at risk. (T. 43). This focus on the patient increases the stress of the job. (T. 24). More, as diligent documentation is required, he must timely[1] record on the computer the use of the medication, when the medication started, when it was discontinued, and the patient’s well-being during the procedure, among other things. (T. 26).

On June 6, 2016, at the end of a colonoscopy procedure, the employee turned off the pump administering the medication, observed the patient for proper breathing, and then rolled his chair backward to get closer to the computer so as to enter information into the patient’s chart. To access the computer, the employee stood and pivoted to his right. As he pivoted, his right foot did not move, resulting in the employee’s right knee “popping.” He was ultimately diagnosed with an ACL rupture requiring medical care, including surgery to repair the tear performed by Dr. Justin Cummins. The employee was off work for a period of time following the surgery.

The employer and insurer denied the claim, asserting the injury did not arise out of employment.

The matter came on for hearing before a compensation judge on October 31, 2017. At hearing, the employee proffered two theories to establish why his right foot did not move as he pivoted: one, there was a substance on the floor, and two, the traction on the shoes he wore. The compensation judge found the employee credible, including that he “planted and twisted,” resulting in injury, but rejected the employee’s theories as to why the employee’s right foot remained in place on the floor when he pivoted. The compensation judge found these theories speculative. The compensation judge denied the employee’s claim, concluding as a matter of law that absent proof of something that caused the employee’s right foot to stick to the floor, there was no increased risk and the employee’s injury did not arise out of his 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(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).


The employee appeals the denial of his claim, identifying three particular findings of the compensation judge. In Finding 8, the compensation judge found that the employee failed to prove that there was a substance on the floor of the procedure room which made the floor sticky at the time of the June 6, 2016, incident. In Finding 12, the compensation judge outlined the examination and opinion of Dr. Richard Strand, who was hired by the employer and insurer to give an opinion. In Finding 14, the compensation judge found that, even accepting the employee’s description of the incident that he planted and twisted before experiencing the “pop,” no increased risk was established.

We affirm the compensation judge’s Finding 8 that there is no clear evidence that a substance existed on the floor at the time of the employee’s injury. Substantial evidence in the record, including admissions of the employee on cross-examination, supports this finding. We also affirm Finding 12 to the extent it appears to be a recitation of evidence presented rather than a finding of fact.[2] As such, there is no factual dispute and our focus is solely whether in Finding 14 the compensation judge applied the correct legal standard regarding whether the employee’s injury arose out of his employment.[3] We conclude the compensation judge did not apply the correct legal standard and we reverse on this basis.

Employers are responsible for “compensation in every case of personal injury arising out of and in the course of employment without regard to negligence.” 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 v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988) (citations omitted).

In determining whether an injury arises out of employment, the Minnesota Supreme Court, in Roller-Dick v. CentraCare Health System, No. A17-1816 (Minn. Aug. 8, 2018), recently outlined the analysis for assessing whether the requisite causal connection exists between the injury and employment. The court contrasted an “external hazard,” where the employee is subjected to a different and greater risk than if pursuing ordinary affairs, with a hazard that originates on the premises as part of the working environment. Citing Dykhoff v. Xcel Energy, 840 N.W.2d 821, 73 W.C.D. 865 (Minn. 2013), the court explained that cases involving the latter type of hazard fall into one of two categories - a special hazard created by employment, such as an unsafe condition, or a hazard created by a neutral condition.

In Roller-Dick, the employee fell and was injured while descending a flight of stairs carrying a potted plant and her purse. The court concluded the circumstances the employee encountered created an increased risk that she would fall and suffer injury, such that the injury arose out of her employment. See also Erven v. Magnetation, LLC, 76 W.C.D. 433 (W.C.C.A. 2016) (the analysis of an increased risk involves examining the totality of the circumstances existing at the time of the injury).

In this case, the compensation judge considered a number of factors alleged to have been hazards which increased the risk of injury. The factors included the potential for a sticky substance on the floor, the type of shoes the employee was wearing, the attention, diligence, focus, and timeliness required of the employee to complete his tasks, and the confined space in which the employee was working. All of these factors were rejected on the basis of “[in]sufficient corroborative evidence demonstrating a specific factor was both present and operative at the time of the injury.” (Memorandum, p. 6) (emphasis added). He concluded that because no one specific factor presented a hazard, there was no increased risk. Under Roller-Dick, this analysis is legally erroneous.

While it is true there was no evidence that there was a sticky substance on the floor, the employee encountered a set of circumstances as part of the working environment, which, when combined, created a hazard. He was performing his duties in a tight confined space, with his entire focus on the well-being of his patient. In an effort to make a timely and accurate recording in the patient’s chart, he rolled his chair back, stood, planted his foot, and twisted toward the computer. In doing so, he planted his foot and twisted his body, resulting in the rupture of his ACL. Rather than looking to place an emphasis on any single factor, the set of circumstances encountered by the employee increased the risk of injury and provided the necessary causal connection between his injury and employment.


Because the compensation judge’s factual findings are well supported by the evidence, we affirm those findings. Because the compensation judge’s legal conclusion (including that found in Finding 14) is contrary to law, however, we reverse the denial of the employee’s claims.

[1] Although immediate recording is not required, timely recording ensures accuracy. (T. 45).

[2] The employer and insurer also denied the June 6, 2016, event resulted in a ruptured ACL and denied the recommended surgery, relying on the opinions of Dr. Strand. Dr. Strand concluded, based upon an early treatment note, that there was no twist, but simply a stand-up from a seated position, and that an ACL rupture cannot occur from the mere activity of standing up from a seated position. More, Dr. Strand concluded the MRI did not show an ACL tear. The compensation judge found the employee’s description of the injury as a plant and twist that resulted in a pop to be credible. As such, the mechanism of injury as well as the nature of the injury relied upon by Dr. Strand were not accurate and his opinion lacks foundation. See Mattick v. Hy-Vee Food Stores, 898 N.W.2d 616, 77 W.C.D. 617 (Minn. 2017) (an expert opinion lacks foundation if the facts assumed by the expert in rendering the opinion are not supported by the evidence).

In contrast to Dr. Strand’s unfounded opinion are the treatment records of Dr. Cummins, which establish medical causation. The July 21, 2016, office note of Dr. Cummins outlined the history of the plant, twist, and pop injury, the doctor’s review of the scans including the MRI showing a complete disruption of the ACL, and his recommendation of a surgical repair of the ACL tear “based on his age and activity level and the fact that he had a normal functioning knee before this,” and noted that he would submit the surgery recommendation to workers’ compensation for approval. The surgical repair, confirming the complete rupture of the ACL, was successful and the employee had a good recovery.

[3] There is no dispute that the employee’s injury occurred in the course of his employment.