ROGELIO O. ESPINOZA, Employee/Appellant, v. DIRECT HOME HEALTH CARE, INC., and CARE PROVIDERS WORKERS’ COMP. FUND BY MACKINAW ADMRS., Self-Insured Employer/Respondents, and MAYFIELD CHIROPRACTIC, P.A., PROGRESSIVE DIRECT INS. CO., CTR. FOR DIAGNOSTIC IMAGING, and INJURED WORKERS PHARM., Intervenors.

The employee appeals from the compensation judge’s determination that the employee’s August 2, 2016, injury did not arise out of and in the course of his employment.  We reverse and remand for additional findings.

The employee, Rogelio Espinoza, was employed as a personal care attendant (PCA) for the employer, Direct Home Health Care.^[1]  He provided PCA services for only one client, the employee’s mother, with whom he resides.  The employee’s PCA duties were directed by a registered nurse/social worker, Kristen Marquette, who also helped develop the supplemental waiver personal care assistant assessment and service plan, also referred to as the care plan.  (Ex. J; Ex. 16.)

The care plan described the services and duties the employee was to provide to his client/mother.  Those services and duties included assisting the client with dressing, grooming, bathing, eating, positioning, toileting, behavior, transfers, and mobility.  “Mobility” was defined by the plan as “moving from one place to another by walking, wheelchair, cane, or [H]oyer lift.”  The care plan also included duties specific to the client/mother because she was “SBA [stand-by assist] with walker-during short distances” and a “[h]igh risk for fall!”  Id.  Finally, the care plan listed other duties that could be provided, time permitting, which included light housekeeping, laundry, health-related functions, errands, and escort.  “Escort” was defined by the plan as an activity done with the client for “medical appointments, community, running errands.”  There were additional PCA duties listed on a charting form that included “socialization.”  Id.

The employee documented the daily care plan tasks he performed on time sheets.  (Ex. J.)  In addition to the care plan duties, the employee also listed other duties he performed on irregular days, which included washing dishes, cleaning the stove/oven, emptying the garbage, cleaning bathrooms, making the bed, doing the laundry, and grocery shopping.  Ms. Marquette met with the employee on occasion to ensure he was providing proper services and abiding by the terms of the care plan.  On July 25, 2016, the last time she reviewed the care plan before the date of the employee’s injury, Ms. Marquette noted the employee was providing services in compliance with the care plan.  The time sheets indicated a start time of 11:00 a.m. and an end time of 5:45 p.m., seven days per week.^[2]  His direct supervisor, Cynthia Juarez,^[3] verified and approved the employee’s time sheets, including the time sheet for August 2, 2016, for which the employee was paid.

On August 2, 2016, at approximately 4:00 p.m., the employee and his client/mother were sitting just outside of their home, when his client/mother suggested they walk across the street to a National Night Out event.  The street on which they lived had been blocked off from traffic for the event.  The employee was walking alongside his client/mother as she used her walker.  A wheelchair had not been approved for her use as of this date.  They checked the street for traffic, looking both ways.  As they were walking across the street, a vehicle backed out of a parking space, striking the employee.  He held onto his client/mother’s walker so she would not fall.

The employee asserted he was injured and filed a claim petition seeking wage loss and medical benefits.  The employer denied primary liability.  The matter came on for hearing before a compensation judge on three separate dates over the course of an eight-month period, on May 25, 2021, November 4, 2021, and January 31, 2022.  The issues before the compensation judge were whether the employee sustained an injury arising out of and in the course of his employment, whether he gave timely notice of his injury to the employer, and the nature and extent of his work injury.  The issues also included whether medical expenses were reasonable, necessary, and causally related, and whether certain intervention claims should be dismissed and/or extinguished.

Following the hearing, the compensation judge issued his Findings and Order on April 18, 2022.  The compensation judge determined that the employee was not engaged in work activities at the time of the incident and therefore did not sustain an injury arising out of and in the course of his employment.  In his memorandum, the compensation judge concluded that the employee’s decision to take his mother to the National Night Out event was not an obligation of, or incident to, his employment as a PCA, but rather was a social event^[4] involving a mother and a son.  He reasoned that even if the injury occurred during his shift, the employee’s decision to take his mother onto the street to go to the National Night Out event was a deviation from his approved duties.  The compensation judge did not make findings with regard to any of the other issues.

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 argues the compensation judge erred as both a matter of fact and law by concluding his injury did not arise out of and in the course of employment.  He asserts that at the time of the injury he was acting in the role of a PCA by escorting his client on a short walk which was allowed, and certainly not prohibited, by the care plan.  The employer asserts that substantial evidence supports the compensation judge’s findings and legal conclusions.

To be compensable under the 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” and “in the course of” are separate requirements under the law.  Dykhoff v. Xcel Energy, 840 N.W.2d 821, 826, 73 W.C.D. 865, 870-71 (Minn. 2013).  We address each in turn.

“Arising out of” refers to a causal connection between the employment and the injury.  Lange v. Minneapolis-St. Paul Metro. Airports Comm’n, 99 N.W.2d 915, 917, 21 W.C.D. 61, 63 (Minn. 1959).  Under Minnesota law, the “increased risk” test has been adopted to address this prong of the work-related requirement in determining compensability.  The employee must have been subject to an increased risk of injury as a result of the employment.  See Noggle v. Lazar Commc’ns, Inc., No. WC04-216 (W.C.C.A. Nov. 10, 2004); see also Koenig v. North Shore Landing, 54 W.C.D. 86 (W.C.C.A. 1996).  This test can be satisfied when the employee’s injury results from a risk occasioned by the employment.  Foley v. Honeywell, Inc., 488 N.W.2d 268, 271 (Minn. 1992).

In this case, the evidence shows that the employee’s injury occurred while he and his client/mother were walking across the street and a vehicle struck the employee.  Thus, the injury arose out of the employee’s work if the employee was subject to this risk of injury due to his employment.

The compensation judge found that the employee’s duties, as described in the care plan, were to assist his client/mother in personal care, taking medication, housekeeping, shopping, paying bills, and making appointments.  (Finding 2.)  This finding is incomplete and not fully supported by the evidence.  While each of the duties listed in Finding 2 was a work duty for the employee, the record clearly shows that he also had other duties under the care plan and the homemaker charting form, which included mobility, escort, and socialization.  The care plan also indicated that his client/mother required stand-by assistance while walking.

Mr. Abdullahi Jama, the president and CEO of the employer, testified that mobility and escorting services were only meant to occur within the home itself.  Yet, he admitted he had no role in the development of the care plan and had no personal knowledge of this averment.  Moreover, there was no evidence presented that the employee was made aware of Mr. Jama’s understanding.  The compensation judge found that Ms. Juarez credibly testified that the PCA services were “primarily” performed in the home.  (Finding 8.)  This finding, while supported by substantial evidence, does not lead to the conclusion that the employee provided services exclusively within the home or that he was prohibited from providing services immediately outside the home.  Ms. Marquette, who worked with the employee to develop the care plan, indicated through her notes that she was aware that the employee was escorting his client/mother and her notes also indicate the employee was abiding by the care plan.  The plan specifically identified escorting his mother in the community as a duty to be performed by the employee.  The evidence shows that the employee was permitted to perform mobility services for his client/mother in the community, that the employee could escort his client/mother, and that he was, according to the plan, getting his mother out, a primary reason a wheelchair was requested.  Moreover, there is no evidence that the employee was informed that his duties were exclusively limited to within the home.  Rather, the evidence shows that the only activity that was strictly prohibited based upon the care plan and the record as a whole, was that of the employee transporting his client/mother in a vehicle.

Therefore, when the employee was engaged in the task of escorting his client/mother or otherwise providing mobility services, he was subject to the increased risk associated with that activity, including those occurring outside the home.  See Bookman v. Lyle Culvert & Road Equip. Co., 190 N.W. 984, 1 W.C.D. 213 (Minn. 1922) (if an employee is subject to the risks of the street while engaged in work activities, then an injury as a result of a street risk arises out of employment as a matter of law).  We conclude that if an injury occurred while the employee was engaged in PCA duties, including escorting his client/mother or otherwise helping her with mobility tasks as called for in the care plan, then the employee’s injury arose out of his employment.

“In the course of” refers to an injury occurring during the time and place of the employee’s work while the employee is engaged in work activity or some other activity incidental to work.  Swenson v. Zacher, 118 N.W.2d 786, 789, 22 W.C.D. 342, 347-48 (Minn. 1962).

As to time, the injury occurred shortly after 4:00 p.m.  Both parties offered the employee’s time sheets into evidence, which show the employee was working until 5:45 p.m. on the date of the injury.  Therefore, we can infer the injury occurred within the time of the employee’s work shift.  The employer argues that, because the time sheets are identical for each day, they provide little evidence of what hours the employee actually worked on any given day, including the date of injury.  While, as the compensation judge found, there were days when the employee started his shift sooner, and thus ended his shift sooner, there are no findings, and no evidence was presented to show, that on the date of the injury the employee’s working hours differed from those recorded on his time sheets.  There is no evidence, contrary to the timesheets or the employee’s testimony, which shows that the injury occurred during the employee’s shift.^[5]

As to place, the injury occurred in the street immediately in front of the home.  The compensation judge made no findings regarding whether the place of the injury was within the workplace.  As noted above, the workplace was certainly the home itself, but also included the “community.”  While there may be a point far enough away from the client/mother’s home where she and her PCA/son may be together but beyond the “community,” the area immediately outside the home and crossing the street is not such a point.  In his memorandum, the compensation judge reasoned that street risks were not contemplated by the employer.  This conclusion is not supported by any evidence.  In fact, the care plan contemplated that the employee would escort his client/mother in the community, an area that certainly includes the street immediately in front of her home.  The only risk that was not contemplated by the employer was the risk of the employee driving his client/mother in a vehicle, due to the lack of commercial car insurance, and a risk not relevant to the facts of this case.  The injury occurred at the employee’s place of work.

The compensation judge found that the employee did not initial on the time sheets that he performed “escort” or “social/recreation” tasks on August 2.  (Finding 10.)  While this is true, this finding is incomplete and thus not fully supported by the evidence.  The employee, initialed that he performed “mobility” tasks and “other” tasks, albeit without specifying the tasks he performed.  Even so, the mobility task is defined by the care plan as walking alongside the client, who required stand-by assistance.  In other words, when the injury occurred, the employee was engaged in the very task, mobility, that he recorded as having completed on that day.^[6]  Further, the supervising nurse, Ms. Marquette, was aware that the employee was escorting his client/mother and getting her out, which was appropriate under the care plan.  Finally, the record shows that the employee was completing the paperwork in a manner that his supervisor, Ms. Juarez, considered adequate.

In essence, the employer argues that because the employee did not specifically state on the time sheets that he was escorting his client/mother outside the home and across the street to the National Night Out event, this activity was not a work activity.  We disagree.  First, there was no requirement by the employer that the employee make specific detailed accounts of his every action or duty.  Second, the forms were not much more than lists of potential duties, with the employee initialing those that he completed on a given day.  Third, even if he failed to list a specific duty as being completed on any given day does not mean that if he engaged in performing that very duty on that very day, he was doing so on his own time and not as part of his work duties.  In fact, the employer was satisfied with the employee’s paperwork completion before the claimed injury, not once raising concerns that the paperwork was identical each and every day, and not raising complaints that the paperwork was not detailed enough to prove he was working or the nature of his duties until after he made a claim for workers’ compensation benefits.  Whether he recorded the activity accurately that day does not determine whether the activity was a work duty.  Because escorting his client/mother was a work duty, and because he was escorting his client/mother, he was engaged in a work duty, whether or not he recorded it as mobility, escorting, or something else on his time sheet.

The employer also asserts that the employee’s decision to take his mother to the National Night Out event turned the escorting/mobility from a PCA duty to a personal activity of mother and son.  While Ms. Juarez testified that walking to a National Night Out event was not a PCA duty, she did not participate in the creation of the care plan and agreed that short walks fell under the PCA duties.  And nothing in the care plan or other documentation limited the destination of any short walk to only those that Ms. Juarez thought were allowed.  Furthermore, she did not testify that she was aware of the nature of the National Night Out event so as to allow her to opine whether the event was social, personal, or otherwise.

The employer further argues the walk to the National Night Out event was akin to going to the movies, the state fair, or a relative’s wedding.  Accordingly, they argue that a son taking his mother to such an event was more of a personal social activity and not a PCA activity, in other words, a deviation from work duties.  We disagree.  As noted, there is no evidence regarding the nature of the National Night Out event.  To prove that the employee was “deviating” from his PCA duties and pursuing a mother/son activity, the employer would have to prove that the National Night Out event was a personal event rather than a community event.  This is an affirmative defense that requires evidence that the employee stopped performing work tasks and began performing personal tasks.  See, e.g., Williams v. Hoyt Constr. Co., Inc., 237 N.W.2d 339, 28 W.C.D. 101 (Minn. 1975) (traveling employees are no longer working when they take a severable side trip).  Here, the employer did not prove a deviation by the employee.^[7]  Further, the care plan documentation included “socialization” as a job duty such that even if there was evidence that the National Night Out constituted a social event, escorting his client/mother to such an event fell within his PCA duties.

The employer finally argues that because the client was deemed a high fall risk, the employee engaged in a prohibited act by walking his mother so far away from the home.  It is true that the client was a high risk of falling.  However, there is no evidence that she was prohibited from walking while using her walker with stand-by assistance from her PCA.  There also is no evidence that the employee was prohibited from walking with his mother.  Rather, the care plan specifically outlined mobility and escorting services as part of the employee’s PCA duties, which included stand-by-assist walking within the community.  The prohibited act defense, like the deviation defense, is an affirmative defense that must be proven by the employer.  See Bartley v. C-H Riding Stables, Inc., 206 N.W.2d 660, 26 W.C.D. 675 (Minn. 1973).  The employer offered no evidence that the employee was prohibited from doing any specific activity as a PCA other than placing his client/mother in a vehicle and driving her somewhere.^[8]  In fact, the employee testified that he thought it was of benefit to his client/mother that she get out of the house and take short walks.

In this case, the employee’s actions were clearly within the course of his employment as listed in the care plan at the time he was escorting his client/mother across the street, and to the extent that he may have failed to specify his PCA duties for the date of the injury, his actions were made in a good faith advancement of his employer’s interests to provide PCA services, specifically mobility and escorting within the community, to the employer’s client.  We have previously held that an act which may fall outside the employee’s regular job duties but is undertaken in good faith to advance the employer’s interests, is within the course of employment.  See Karstad v. Myles Lorentz, Inc., 75 W.C.D. 207 (W.C.C.A. 2015). 

As noted earlier, we acknowledge the standard of review as outlined in Hengemuhle and recently reaffirmed and clarified in Lagasse v. Horton and Aspen Waste Sys., Inc., ___ N.W.2d ___ (Minn. 2022).  For all the reasons outlined above, based on the substantial evidence, we conclude a reasonable mind could not find the employee was acting outside his work duties by walking alongside his client/mother while crossing the street immediately in front of her home, that he was working outside his work hours or the place of work, or that he deviated from his work duties or committed a prohibited act.  Finally, a reasonable mind could not find that the National Night Out event was a personal social event, but as noted, even if it was a social event, socialization was part of the employee’s work duties.

We reverse the compensation judge’s finding that the employee’s claimed injury did not arise out of and in the course of his employment.  Several issues raised below were not reached by the compensation judge and remain unresolved including whether the employee sustained a work injury, the nature and extent of the employee’s alleged injury, a notice defense, and the medical and intervention claims.  These issues are remanded to the compensation judge for determination.  See Minn. Stat. § 176.371 (all questions of fact and law submitted to the compensation judge shall be disposed of in the decision).