BARBARA BANK, Employee/Appellant, v. MINN. DEP’T. OF HUMAN SERV’S., and STATE OF MINN., Self-Insured Employer/Respondent, and FAIRVIEW HEALTH SERV’S., TWIN CITIES SPINE CTR., and HARTFORD LIFE, Intervenors.

OCTOBER 20, 2020

ARISING OUT OF & IN THE COURSE OF – TRAVELING EMPLOYEE.  The compensation judge erred in applying the increased risk test to deny the employee’s claim related to an injury she suffered while protected by portal to portal coverage and while engaged in a reasonable activity.

    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:  Lisa B. Pearson

Attorneys: Mark G. Olive, Marcia K. Miller, SiebenCarey, P.A., Minneapolis, Minnesota, for the Appellant.  Luke Seifert, State of Minnesota, Department of Administration, Workers’ Compensation Program, St. Paul, Minnesota, for the Respondent/Self-Insured Employer.

Reversed and remanded.



The employee appeals from the compensation judge’s determination that the employee’s injury did not arise out of her employment and from the denial of her claim for benefits.  We reverse.


The employee, Dr. Barbara Bank, is a physician licensed to practice medicine in the State of Minnesota.  She graduated from the University of Minnesota Medical School in 1974.  She then joined a clinic and practiced family medicine for many years.  In 2011, Dr. Bank was hired by the Minnesota Department of Human Services (DHS), the self-insured employer, to provide medical care for residents of the Community Behavioral Health Hospital in Rochester.  As a condition of her employment, Dr. Bank was required to complete 50 hours of continuing medical education each year.  She was also required to repeat certification for the American Board of Physician Specialties.  To meet this certification requirement, Dr. Bank traveled to Nashville, Tennessee, in June 2018 to attend a two-day seminar at the Nashville Hilton, where she and her husband stayed.

Dr. Bank attended the first day of the seminar.  She testified she was not experiencing dizziness, vertigo, or any other physical problems.  Dr. Bank regularly took medications to treat for prediabetic and thyroid conditions.  She experienced no side effects from either medication.

The following morning, on June 26, 2018, Dr. Bank ate breakfast with her husband in their seventh-floor hotel room before attending the second day of the seminar.  She walked from her room to the elevator bank, intending to take an elevator to the main floor where the seminar would begin.  Dr. Bank stood with two other people while she waited for an elevator.  Dr. Bank testified that after an elevator door to her left opened, she “pivoted to go to the entrance of the elevator, and somehow my shoe caught on the rug.  And I tried to catch myself, but I lost my balance; and I just fell flat on my back really hard.”  (Transcript at 28-29.)  She felt immediate severe pain in her upper back and eventually required spinal fusion surgery at the C2 level.  The self-insured employer denied responsibility for her injury.  Dr. Bank retained an attorney and filed a claim for workers’ compensation benefits.

The employee’s claim went to hearing on August 14, 2019.  The parties stipulated that Dr. Bank was a traveling employee and in the course of her employment at the time of her injury, and that the only issue for resolution by the compensation judge was whether the injury arose out of employment.  By Findings and Order dated October 10, 2019, the compensation judge denied the claim.  Although Dr. Bank was a traveling employee, the judge concluded that the employee failed to show that her injury was the result of a hazard on her employer’s premises and was not entitled to benefits under Dykhoff v. Xcel Energy, 840 N.W.2d 821, 73 W.C.D. 865 (Minn. 2013).  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).


To be compensable under the Minnesota Workers’ Compensation Act, an injury must arise out of and in the course of employment.  Minn. Stat. §§ 176.011, subd. 16, and 176.021, subd. 1.  “Arising out of” requires a showing of a causal connection between the injury and employment, and “in the course of” refers to the time, place, and circumstances of the injury.  See Lange v. Minneapolis-St. Paul Metro. Airports Comm’n, 257 Minn. 54, 99 N.W.2d 915, 21 W.C.D. 61 (1959).  The parties agree that at the time of her injury, Dr. Bank was a traveling employee.  (Stipulation of Fact 11, Findings and Order, served and filed Oct. 10, 2019.)  As such, she enjoyed portal to portal coverage and was in the course of her employment.  See Voight v. Rettinger Transp., Inc., 306 N.W.2d 133, 33 W.C.D. 625 (Minn. 1981).  The dispute here is whether her injury arose out of her employment.  On appeal, the employee argues that the compensation judge erred in concluding that the Dykhoff decision altered the arising out of standard historically applied in cases involving a traveling employee.  We agree.

In Dykhoff, the Minnesota Supreme Court determined that the employee, who suffered an injury while on her employer’s premises, failed to show that her employment put her at an increased risk of injury beyond that to which the general public is exposed.  Dykhoff, 840 N.W.2d at 828, 73 W.C.D. at 874.  Its central holding was a rejection of the work-connection test established in Bohlin v. St. Louis Cty./Nopeming Nursing Home, 61 W.C.D. 69 (W.C.C.A. 2000), which this court had relied upon to find the claim compensable.  Id. at 830, 73 W.C.D. at 879.  As to the articulated arising out of standard, the Dykhoff decision cited to well-established precedent including Nelson v. City of St. Paul, 249 Minn. 53, 81 N.W.2d 272, 19 W.C.D. 120 (1957) and Kirchner v. Cty. of Anoka, 339 N.W.2d 908, 36 W.C.D. 335 (Minn. 1983), and did not change the landscape.  See Hohlt v. Univ. of Minn., 897 N.W.2d 777, 77 W.C.D. 509 (Minn. 2017); Roller-Dick v. CentraCare Health Sys., 916 N.W.2d 373, 78 W.C.D. 483 (Minn. 2018).

The case at hand, however, presents circumstances of a traveling employee.  Traveling employees have been afforded “sui generis status” under Minnesota law for decades.  See Voight, 306 N.W.2d at 138, 33 W.C.D. at 633.  Unlike Ms. Dykhoff, Dr. Bank was injured while away from her employer’s premises.  As a traveling employee attending a seminar hosted at a hotel, Dr. Bank was exposed to the same risks as the general public.  The historical rule in such cases is that a causal connection is established so long as the traveling employee is engaged in a reasonable activity at the time of injury.  Id.  The risk inherent in a reasonable activity is considered an incident of the employment.  Epp v. Midwestern Machinery Co., 296 Minn. 231, 234, 208 N.W.2d 87, 89, 26 W.C.D. 703, 706 (1973).  A traveling employee who is exposed to such a risk incident to his or her employment and is injured as a result has satisfied the requisite causal connection.  See Nelson, 249 Minn. at 55, 81 N.W.2d at 275, 19 W.C.D. at 123 (causal connection exists if the employment, by reason of its nature, obligations, or incidents, is the source of the injury-producing hazard).

The activities engaged in by Dr. Bank at the time of her injury were pivoting and walking to gain entrance to a hotel elevator so as to attend a seminar.  From a historical perspective, the activities considered to have been reasonable by the Minnesota Supreme Court in traveling employee cases, such that a causal connection was established, have been varied.  In one of the earliest traveling employee cases, recovery was allowed to the heirs of the employee, a traveling salesman who died in a fire at the hotel at which he was staying during a work trip.  Stansberry v. Monitor Stove Co., 150 Minn. 1, 183 N.W. 977, 1 W.C.D. 73 (1921).  Years later, the court affirmed an award of benefits to the heirs of another traveling salesman in Snyder v. Gen. Paper Corp., 277 Minn. 376, 152 N.W.2d 743, 24 W.C.D. 255 (1967).  Mr. Snyder died from asphyxiation while dining with a prospective client.  The court considered the employee’s dining to have been an activity incidental to his employment, Id. at 388, 152 N.W.2d at 751, 24 W.C.D. at 272, and that “[his] employment was a contributing cause and one leading to his death.”  Id. at 386, 152 N.W.2d at 749, 24 W.C.D. at 268.

The evolution of the causal connection required in traveling employee cases is perhaps most apparent in the court’s decision in Epp.  In Epp, the traveling employee was struck and killed while crossing a road to return to his motel after having consumed food and drinks at a nearby tavern.  The employer argued that the employee’s death “did not arise out of a contemplated hazard or risk connected with his employment.”  Epp, 296 Minn. at 234, 208 N.W.2d at 89, 26 W.C.D. at 705-06.  Rejecting that argument, the court stated, “Where, as here, an employee is directed by his employer to remain at a certain locale on behalf of the employer for a specified time or until instructed otherwise, ‘the rule applied is simply that the employee is not expected to wait immobile, but may indulge in any reasonable activity at that place, and if he does so the risk inherent in such activity is an incident of his employment.’”  Id. (quoting Robards v. New York Div. Elec. Prod., Inc., 33 A.D.2d 1067, 1067-68, 307 N.Y.S.2d 599, 600 (1970)).  In awarding benefits to Mr. Epp’s heirs, the court concluded that the employee’s activity was not unreasonable and that the risk and hazards to which he was exposed directly flowed as a natural incident of his employment.  Id. at 235, 208 N.W.2d at 89, 26 W.C.D. at 706.

The reasonable activity standard described in Epp was later applied in Voight.  Mr. Voight was employed as a bus driver, and while out of town for a two-day trip, he was severely injured as a result of a gunshot wound suffered while at a tavern for dinner and drinks with fellow bus drivers who had also made the trip.  The Minnesota Supreme Court awarded benefits to the employee upon consideration of a general rule applied by other courts, that being, traveling employees enjoy portal to portal coverage so long as the employee is engaged in a reasonable activity.  Voight, 306 N.W.2d at 137, 33 W.C.D. at 631.  A reasonable activity is an activity that “may normally be expected of a traveling employee as opposed to those which are clearly unanticipated, unforeseeable, and extraordinary.”  Id. at 138, 33 W.C.D. at 633.

Injuries suffered as a result of the risks inherent in reasonable activities engaged in by traveling employees, including sleeping in a hotel (Stansberry), crossing a road (Epp), dining (Snyder), and drinking (Voight), have been considered compensable.  Certainly, Dr. Bank’s activities of pivoting and walking to gain entrance to a hotel elevator so as to attend a seminar must also be considered reasonable such that the requisite causal connection has been established.

The self-insured employer asserts that Dr. Bank’s injury is not compensable under an application of the increased risk test restated in Dykhoff, and that to conclude otherwise would equate to holding that a traveling employee need only show that his or her injury occurred in the course of employment.  We disagree.  By adhering to the reasonable activity standard developed and applied over the last nearly 100 years, we do not mean to suggest that a traveling employee has no burden to show that his or her injury arose out of employment.  In fact, we rejected such an argument outright in Eide v. Award Constr. Co., Inc., 72 W.C.D. 605 (W.C.C.A. 2012).  We conclude that the Dykhoff decision cannot be interpreted as having overruled Voight and the cases that came before it, and that the compensation judge erred in denying the employee’s claim.  The compensation judge’s decision is reversed as a matter of law and the case is remanded for an award of benefits to the employee.