APRIL 14, 2022
No. WC21-6438

EVIDENCE – UNDISCLOSED EVIDENCE.  The compensation judge did not abuse his discretion by disregarding claims of spoliation of evidence where no offer of proof regarding the evidence was made and no motion to compel discovery was brought.

ARISING OUT OF AND IN THE COURSE OF – ASSAULT; STATUTES CONSTRUED – MINN. STAT. § 176.011, SUBD. 16.  The compensation judge’s finding that the employee’s injuries resulted from an intentional act directed against the employee for personal reasons unrelated to employment and thereby were not compensable under Minn. Stat. § 176.011, subd. 16, is supported by substantial evidence.

    Determined by:
  1. Deborah K. Sundquist, Judge
  2. Patricia J. Milun, Chief Judge
  3. Sean M. Quinn, Judge

Compensation Judge:  Radd M. Kulseth

Attorneys:  Aaron W. Ferguson, Aaron Ferguson Law, Roseville, Minnesota, for the Appellant.  Matthew D. Davis, Law Offices of Zylstra and Sorensen, Chicago, Illinois, for the Respondents.




The employee appeals the compensation judge’s finding that the intentional act exclusion under Minn. Stat. § 176.011, subd. 16, barred the employee’s workers’ compensation claim.  We affirm.


On June 27, 2018, while in the course of employment at the DoubleTree Suites hotel, Deangelo Profit, the employee, was violently attacked by an assailant, herein referred to as W.R.  After checking into the employer’s hotel, W.R. attacked the employee with a sharpened military-style entrenching shovel.  As a result of the attack, the employee sustained severe injuries to his scalp, permanent injuries to his hands, and injuries to the tendons in his wrists and hands.

The employee had known W.R. for a few years prior to the date of this attack.  They had worked together for a different employer.  On one occasion, W.R. attended a birthday party at the employee’s home.  They were “friends” on Facebook and the employee kept W.R.’s phone number in his cell phone contacts.  At the hearing, the employee testified that he “would not say that W.R. was [his] friend,” but at various times the employee described their relationship as “associates,” and referred to W.R. as “my guy, Bill.”  (T. 65; Ex. Q.)  He also testified that other than Facebook, he had no contact with W.R. after they stopped working for the same employer.  The employee did not know W.R.’s friends or family.  The employee was unaware that W.R. had a history of criminal assaults and mental illness.

For years prior to the attack, W.R. demonstrated behaviors suggestive of mental illness.  On one occasion, after picking up a hitchhiker, W.R. proceeded to jump out of the moving vehicle under the belief that the hitchhiker was trying to kill him.  W.R. believed that his parents were working with the federal government and the Federal Bureau of Investigation as part of a plot to kill him.  In response, he left his parents’ home and traveled from motel to motel trying to escape detection.  W.R. refused medication because he thought it would poison him.  In 2015, W.R. was diagnosed with a psychotic disorder after exhibiting symptoms of paranoia and engaging in assaultive behavior. 

W.R.’s uncle died of heart disease in March 2018.  Later, W.R. falsely claimed that his own sisters had poisoned him at a family dinner associated with his uncle’s funeral.  In the spring of 2018, W.R. was charged with felony domestic assault which resulted in a conviction of misdemeanor domestic assault.  Particularly relevant to this case, W.R. falsely believed that the employee had murdered his uncle.

On the day of the assault, the employee was at work as a houseman for the employer.  As a houseman, the employee was responsible for stocking housekeeping supplies at various locations throughout the hotel.  His daughter called his cell phone and told him that “Bill” had stopped by the house and was looking for him.  She had told W.R. that the employee was at work.  Later that day, the employee was informed by staff at the hotel that someone was trying to use the employee’s discount to check in to the hotel.  The employee did not know who was trying to use his discount, but soon learned that the individual was W.R.  The employee told his coworkers that this person was “my guy, Bill.”  W.R. had no luggage with him and did not park his truck in the hotel garage.  He asked to speak to the employee, but was told that the employee was on duty and could not speak to him.  The staff described W.R. as acting “weird,” but they had seen no weapon and had no reason to think he might be dangerous.  Soon after W.R. checked in and received his room key, the staff discovered that his credit card had been declined.  By hotel policy, a key was not to be given to an individual whose credit card was declined.  The staff attempted to lock out W.R.’s room on the sixth floor.

During this time, the employee was working in a room on the second floor, four floors down from W.R.’s assigned hotel room, when he saw W.R. standing at the open door of the room.  The employee turned his back while talking to W.R., and then felt something cold and hard hit him in the back of the head.  Reaching up to his head, the employee discovered that he was bleeding.  W.R. continued to attack the employee with a sharpened entrenching shovel while the employee attempted to escape.  W.R. struck the employee’s arms, causing multiple injuries to both hands.  In his escape attempt, the employee ran past the front desk and shouted for the staff to call 911.  He then sought shelter in a conference room and shut the door.  W.R. pushed through the door and continued his attack.  Within minutes, W.R. was wrestled to the floor by a coworker and a hotel guest.  The coworker heard W.R. saying that the employee had killed W.R.’s uncle and the employee responding “Bill, I didn’t do it.”  (Ex. 7.)  The police arrived and arrested W.R.  During the arrest, W.R. continually repeated that the employee had “killed my uncle” and that he was there to “avenge” the murder.  (Ex. BB.)  After the arrest, W.R. continued to maintain that his uncle had been murdered by the employee.[1]  W.R. did not indicate that there was any other reason for the assault.

W.R. was initially determined incompetent to stand trial on charges of first- and second-degree assault for the attack on the employee.  In September 2018, W.R. was diagnosed with schizoaffective disorder.  He was civilly committed as a dangerous person in October 2018. Lawrence Panciera, Ph.D., ABPP, L.P., opined that “at the time of the offenses charged, W.R. was laboring under such defect of reason as not to know the nature of the act constituting the offense, or that it was wrong . . . .”  (Ex. F2.)  After undergoing treatment, W.R. was deemed competent to stand trial.  On June 11, 2019, W.R. pled guilty to two counts of felony assault for his conduct in attacking the employee.

The employee suffered permanent damage to his hands.  Imaging at Hennepin County Medical Center showed a displaced open fracture involving the articular surface of the distal radius of the right wrist, soft tissue injuries above the radial aspect of the left elbow, deep soft tissue lacerations involving the left distal forearm, and lacerations on the frontal and posterior scalp.  The employee alleged that his injuries left him unable to work and maintained that the injuries and subsequent disability should be covered by workers’ compensation.  The employer and its insurer denied primarily liability, alleging that the injury was caused by the act of a third person (W.R.) who intended to injure the employee because of personal reasons, and not directed against the employee as an employee, or because of employment.  The employee filed a claim petition on August 16, 2018, seeking medical and wage loss benefits.  On the same day, the employee sent a letter to the employer requesting that the employer preserve various discovery material, including all video pertaining to the incident.  (Ex. C.)

The employer and insurer moved to dismiss the claim petition.  This motion was denied by the compensation judge.  The employer and insurer brought an appeal to this court, arguing that the judge erred in denying their motion to dismiss.  This court dismissed the appeal because it was taken from an interlocutory order.[2]

The case proceeded to a hearing on the merits of the employee’s claim on June 16, 2021.  The sole issue presented was whether the intentional act exclusion set forth in Minn. Stat. § 176.011, subd. 16, barred the employee’s claims.  The record includes testimony from the employee and hotel staff, as well as surveillance video and police body camera evidence.

The employee argued in his written closing argument that the employer failed to provide surveillance video of W.R. at check-in, and that this omission constituted spoliation of evidence.

In Findings and Order of September 10, 2021, the compensation judge found that the employee’s injuries were caused by a third person who intended to injure the employee because of personal reasons, not because of the employment or directed at him as an employee.  The judge found that the claim was therefore barred by the intentional act exclusion under Minn. Stat. § 176.011, subd. 16.  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 involve 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).


On appeal, the employee argues that the compensation judge erred by failing to address the question of spoliation of surveillance video evidence showing W.R. checking into the hotel.  He also argues that the compensation judge made erroneous legal conclusions regarding the intentional act exclusion[3] set forth in Minn. Stat. § 176.011, subd. 16, because the conclusions were based on information that was incomplete due to the spoliation of evidence.  Finally, he argues that the judge erred in his analysis of the personal nature of the assault as outlined in Hanson v. Robitshek-Schneider Co., 209 Minn. 596, 297 N.W. 19, 11 W.C.D. 463 (1941).  W.R.’s random violence against the employee is no different, he argues, than the violence perpetrated against employees in Foley v. Honeywell, 488 N.W.2d 268 (Minn. 1992) and Bear v. Honeywell, 468 N.W.2d 546 (Minn. 1991), which in each case was held to result in a compensable work injury under the Minnesota Workers’ Compensation Act.

First, the employee contends that the judge erred in not considering the spoliation of surveillance video evidence of the lobby during the time leading up to the assault on the employee.  The employee contends that failing to retain the video resulted in an evidentiary advantage to the employer and insurer on a critical fact question.  We disagree.

Spoliation of evidence is the destruction of evidence by a party which affords an evidentiary advantage to the party alleged to have destroyed the evidence.  Himes v. Woodings-Verona Tool Works, Inc., 565 N.W.2d 469, 471 (Minn. App. 1997).  Here, the employee did not prove that the surveillance video in possession of the employer was lost, damaged, or destroyed and there is no evidence before us supporting this theory.  No evidence was offered by either party as to whether such video actually was made, whether it still existed or had been destroyed, or why it had not been provided in response to the employee’s discovery request.  The employee made no formal offer of proof on the record providing a specific description of the alleged evidence.

Furthermore, based on his brief, the employee’s theory of the potential relevance of this video appears to be that it may have documented negligence on the part of hotel staff in admitting W.R. to the hotel, based on his behavior and on the possibility that the entrenching tool he used in the assault was visible on his person.  The Minnesota Workers’ Compensation Act established a no-fault system.  State ex rel. Chambers v. Dist. Ct., 139 Minn. 205, 166 N.W. 185 (1918).  Assuming a video of the lobby existed, a video of W.R.’s actions while checking in would not be relevant to the application of the intentional act exclusion of Minn. Stat. § 176.011, subd. 16.

In the alternative, the employee argues that the employer should be sanctioned for failure to produce the surveillance video.  This argument is unpersuasive.  The proper remedy for failure to respond to a discovery demand is to bring a motion to compel.  Kornell v. Hennepin Cnty., 47 W.C.D. 229 (W.C.C.A. 1992), summarily aff’d (Minn. Sept. 2, 1992).  While the employer produced multiple videos of the incident, any asserted failure to comply with the employee’s discovery demand should have been followed by a motion to compel the evidence, which was not done here.  We conclude that the judge did not err in not considering the spoliation of video evidence of the lobby alleged by the employee.

Second, the employee contends that the judge erred in finding that the employee’s workers’ compensation claim was barred by the intentional act exclusion under Minn. Stat. § 176.011, subd. 16.  A compensable personal injury under the Minnesota Workers’ Compensation Act must arise out of employment, must be in the course of employment, and must not come within the intentional act exclusion of personal injury under Minn. Stat. § 176.011, subd. 16.  Foley, 488 N.W.2d at 273.  This subdivision provides that a “personal injury does not include any injury caused by the act of a third person or fellow employee intended to injure the employee because of personal reasons, and not directed against the employee as an employee, or because of the employment.”  Minn. Stat. § 176.011, subd. 16.  As the Minnesota Supreme Court stated: “A noncompensable assault must have been for ‘reasons personal’ to the victim.  Also, it must not have been directed against him as an employee or because of his employment.”  Hanson, 209 Minn. at 600, 297 N.W. at 21-22, 11 W.C.D. at 467.

Intentional act exclusion cases fall mostly into three groups.  In cases where an assailant is motivated by personal animosity toward the victim arising from circumstances wholly unconnected with the employment, the resulting injuries are not compensable.  In cases where provocation or motivation arises solely out of the activity of the victim as an employee, the resulting injuries are compensable.  In the middle ground are cases where the assault was directed against the victim neither as an employee nor for reasons personal to the employee.  Injuries in this middle ground are ordinarily compensable.  Bear, 468 N.W.2d at 547.

The compensation judge determined that W.R. assaulted the employee solely for personal reasons entirely unconnected to the employment, rendering the injury noncompensable.  The judge reached his conclusion by assessing the sequence of events and the statements of witnesses, including the testimony of the employee.  W.R. first traveled to the employee’s residence, and only then to the hotel, in each instance asking for the employee by name.  W.R. eventually found the employee and assaulted him, stating during the assault that the employee had murdered W.R.’s uncle.  W.R. continued to tell police officers after the arrest that he assaulted the employee because the employee was involved in the murder of W.R.’s uncle, for which W.R. sought vengeance.

The employee argues that since W.R.’s motivation lacked a rational basis, the injury is compensable as in Foley and Bear.  These two cases are distinguishable from the case before us.  In both Foley and Bear, rape was perpetrated by an unknown assailant whose reasons and motive for the assault were not known.  In addressing the question of motivation, the Minnesota Supreme Court adopted the analysis of Professor Larson who explained that:

There is a marked distinction between a crime in which the robber says to himself, ‘I am going to track down Henry Davis wherever he may be and steal the gold watch which I know he has,’ and the holdup in which the robber says, ‘I am going to rob whoever happens to be on duty as night watchman.’  The latter is not personal to this victim at all.  He is attacked exclusively in his employment capacity as being the one who occupies the position in relation to that employment which the robber has found to create a favorable opportunity.[4]

Here, W.R. tracked down the employee and did what he intended to do, seek vengeance driven by a false and paranoid belief that the employee harmed his uncle.  In deciding the assault was not compensable, the compensation judge reasoned that there is no exception to the assault exclusion where the motivation arises from mental illness.  The compensation judge reasonably found that W.R.’s motivation, although delusional due to his mental illness, was self-evidently based solely on personal animosity toward the employee, arising from circumstances wholly unconnected to his employment.  Substantial evidence supports this finding.

We affirm the compensation judge’s finding that the employee’s workers’ compensation claim is barred by the intentional act exclusion under Minn. Stat. § 176.011, subd. 16. [5]

[1] Police records indicated that W.R.’s uncle died from a heart ailment and that nothing about the death appeared suspicious.  (Ex. Q.)

[2] Profit v. HRT Holding, No. WC19-6319 (W.C.C.A. Feb. 10, 2020).

[3] The parties and the compensation judge in this matter use the phrase “intentional act exclusion” to refer to the portion of the statute which states that “personal injury does not include an injury caused by the act of a third person or fellow employee intended to injure the employee because of personal reasons, and not directed against the employee as an employee, or because of the employment.”  Minn. Stat. § 176.011, subd. 16.  We note that this court and the supreme court have also used “assault exception,” “intentional injury exception,” and “assault exclusion” to refer to this section of the statute.  See Gunderson v. Harrington, 632 N.W.2d 695 (Minn. 2001); McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830 (Minn. 1995); Bear v. Honeywell, 468 N.W.2d 546 (Minn. 1991); Lichtenberg v. Allied Sys., Ltd., 63 W.C.D. 371 (W.C.C.A. 2003); Milton v. Henry Combs, 59 W.C.D. 143 (W.C.C.A. 1999), summarily aff’d (Minn. May 27, 1999).

[4] Bear, 468 N.W.2d at 547-48, n.1 (quoting A. Larson, The Law of Workers’ Compensation, 11.11(b) (1990)).

[5] While the employee is barred from bringing a workers’ compensation claim, there may be other legal actions available to remedy the loss from this brutal and senseless attack.