CHAD OLSON, Employee/Respondent, v. TOTAL SPECIALTY CONTRACTING, INC., and FEDERATED MUT. INS. CO., Employer-Insurer/Appellants, and RAYUS RADIOLOGY f/k/a CTR. FOR DIAGNOSTIC IMAGING, MERCY HOSP., CAMBRIDGE MED. CTR., HEAT & FROST INSULATORS LOCAL 34, and INTERVENTIONAL SPINE & PAIN CTR., Intervenors.

The employer and insurer appeal the compensation judge’s finding that the employee’s injury arose out of and in the course and scope of his employment.  The judge did not err in finding that the injury was compensable, and we affirm.

Chad Olson, the employee, worked as a journeyman heat and frost insulator for Total Specialty Contracting, the employer.  In the fall of 2021, the employer was subcontracted to work on a construction project on the University of Minnesota campus.  On November 8, 2021, the employee was scheduled to meet with another subcontractor to discuss the work to be done.  The meeting was set for 6:00 a.m. at Lind Hall, which was enclosed by a chain-link fence and gates because it was closed to the public and university employees for the duration of the project.  The employee was instructed to park nearby, walk across Union Street and between two other campus buildings, follow the fence on the right until he reached a gate, then enter the gate and the building.  Due to asbestos work scheduled on that same day, the only entrance to the construction site was the gate the employee was instructed to use.  The employee arrived at the campus at approximately 5:45 a.m.  The employee was already wearing his personal protective equipment (PPE), vest, work boots, long pants, and hard hat and was carrying his safety glasses.  He was unfamiliar with the area but followed the instructions, saw the fence, and walked diagonally toward the gate across a cement walkway that was covered with wet and frosty leaves.  The chain-link fence encroached upon the walkway^[1] and the area was dimly lit with ambient light coming from the surrounding buildings.  Within approximately five to ten feet of the gate entrance, the employee slipped and fell.  He was able to crawl to the fence, pull himself up, and make his way into Lind Hall.

The employee could not explain the exact cause of his fall.  He testified that the fall happened so fast.  He was walking, everything was fine, and he was on the ground.  (T. 122-24.)  Unable to attribute the fall to a specific reason, he testified that he assumed that he slipped and fell on the wet and frosty leaves.  Id.  He estimated that the leaves were about an inch and one-half deep and he noticed that the toes of his boots were frosty from walking through them.

That same day, the employee was seen at Mercy Hospital.  He was diagnosed with a left ankle sprain and was given a short walking boot.  The employee continued to experience left ankle pain, and eventually sought care with John Tanner, M.D., who ordered physical therapy and an MRI of the ankle and low back.  He also ordered an EMG which showed acute left peroneal neuropathy across the fibular head.  The injury caused a loss of sensation on the left side of the employee’s left leg from the knee to his foot and foot drop which prevented him from lifting the front of his foot.  Dr. Tanner opined that the November 8, 2021, fall was a substantial contributing cause of the employee’s peroneal nerve dysfunction and the new onset of back pain and bilateral extremity weakness and pain.  He recommended a left ankle brace.  The employee was unable to return to work for more than six months, from November 8, 2021, to May 16, 2022.

The employer and its insurer, Federated Mutual Insurance Co., denied that the injury arose out of and in the course and scope of employment because the employee did not know what caused the injury and no evidence connected the injury to employment.  They maintained also that the injury occurred outside the perimeter of the construction site, 15 minutes before the actual 6:00 a.m. meeting time, and did not meet the time and place requirements of a compensable claim.

The employer and insurer retained Mark Engasser, M.D., who took a medical history, examined the employee, reviewed medical records, and drafted a narrative report on May 10, 2022.  Dr. Engasser diagnosed the employee with a left peroneal nerve injury, left lateral ankle sprain, low back pain, grade 1 spondylolisthesis at L4-5 and moderate L4-5 neural foraminal stenosis with bilateral L4-5 inflammatory arthropathy, status post left calcaneal osteotomy, lateral ankle ligament reconstruction, an excision of crystal tophus of soft tissues, and history of a left ankle fracture.  He opined that the left ankle and low back injuries were temporary in nature but that the employee’s left peroneal nerve injury was due to the work injury and could be permanent.  He restricted the employee to four hours of standing and walking intermittently and to 20 pounds lifting and carrying.

The employee filed a claim petition on February 8, 2022, claiming wage loss and medical benefits.  A hearing was held on December 21 and 30, 2022, to address whether the November 8, 2021, injury arose out of and in the course and scope of his employment, the nature and extent of the left ankle and low back injuries, and whether the employee was entitled to wage loss from November 8, 2021, to May 16, 2022.  The judge found that the employee’s injury arose out of and in the scope and course of employment and ordered the employer and insurer to pay benefits.  The employer and insurer appeal.

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. Jun. 3, 1993).

In finding that the employee’s injury arose out of and in the course and scope of employment, the compensation judge determined that the location where the employee fell was “used as an extension of the jobsite.”  (Mem. at 8.)  She explained that the walkway was being used by vehicles that delivered supplies and equipment to Lind Hall and that security measures to keep the building secure from the public also caused necessary changes to the status and appearance of the walkway.  She also noted that there were no lights illuminating Lind Hall or the walkway near it and that wet and frosty leaves covered the walkway immediately adjacent to the fence surrounding the site.  These factors led the judge to conclude that the employee’s injury arose out of and in the course and scope of employment.

Citing Dykhoff v. Xcel Energy, 840 N.W.2d 821, 73 W.C.D. 865 (Minn. 2013) and Swanson by Swanson v. Fairway Foods, 439 N.W.2d 722, 41 W.C.D 1010 (Minn. 1989), the employer and insurer argue on appeal that substantial evidence does not support the judge’s finding that the injury arose out of and in the course and scope of employment.  They argue that there is no evidence of the cause of the fall and therefore the injury was simply an unexplained fall on a flat surface that did not arise out of employment.  Because the injury occurred prior to the employee’s workday and outside the work premises of the construction gate, they argue that the injury was not in the course of the employee’s employment.  Finally, they argue that the compensation judge inappropriately found that the employee’s injury fell under the ingress and egress exception.  We are not persuaded.

The Dykhoff court affirmed that both the “arising out of” and “in the course of” elements must each be met for an injury to be compensable under Minn. Stat. § 176.011, subd. 16.  Post-Dykhoff, the holdings in Hohlt v. Univ. of Minn., 897 N.W.2d 777, 77 W.C.D. 509 (Minn. 2017) and Roller-Dick v. CentraCare Health Sys., 916 N.W.2d 373, 78 W.C.D. 483 (Minn. 2018) have refined the definition of “arising out of” to include circumstances in the workplace that expose the employee to an increased risk, establishing that as a matter of law, those circumstances provided the causal connection between the injury and the workplace.  Roller-Dick, 916 N.W.2d at 379, 78 W.C.D. at 487.  In Roller-Dick, the Minnesota Supreme Court explained that arising out of cases turn on whether the employee faced a hazard that originated on the premises as part of the “working environment.”  Id.  The court has also held that in order to have the requisite causal connection between the injury and employment, the employee must have faced a hazard, such as an external hazard, a special hazard, an unsafe condition, or a neutral condition with circumstances originating on the premises as part of the working environment, that increased the employee’s risk of injury.  Tomah v. Good Samaritan Soc’y, No. WC21-6436 (W.C.C.A. Mar. 31, 2022) (citing Dykhoff and Roller-Dick).

Here, while the employee was not certain what caused the fall, we cannot conclude that the injury was unexplained.  Although the employee discounted the suggestion that other factors alone caused the fall, he testified that he assumed he slipped on the leaves.  The judge weighed the testimony, found the employee credible, and determined that the circumstances presented increased the employee’s risk of injury.  This set of circumstances included findings of wet and frosty leaves covering the walkway, dim lighting, unfamiliarity with the area, limited entry, an encroaching fence on the walkway that was simultaneously used for construction vehicles, and the employee wearing his PPE to attend a meeting with a subcontractor which was necessary so he could begin his work for the employer.  Collectively, these circumstances increased the employee’s exposure to injury and are the causal connection between the work injury and the employment.  Substantial evidence supports the judge’s finding that the November 8, 2021, injury arose out of employment, and we affirm.

Next, the employer and insurer argue that the employee was not in the “course and scope of” employment because the fall occurred outside the construction area and outside working hours.  They contend the employer is a small subcontractor with no control over the University of Minnesota premises and walkway where the employee fell.  They argue that the judge erred in determining that the walkway was an extension of the jobsite without citing a legal theory or substantial evidence to support that determination.  The rules of the job only applied, they argue, once authorized workers passed through the gate and into the fenced construction area.  We disagree.

The phrase “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).  Employees are covered during ingress and egress of the workplace when the injury occurred at a time when the employee was being of service to the employer, while the employee was engaged in activities reasonably incidental to the employment, during a reasonable period beyond actual working hours, on an area considered a part of the work premises, and within a customary route of ingress and egress.  Blattner v. Loyal Ord. of Moose, Moose Club Lodge No. 1400, 264 Minn. 79, 117 N.W.2d 570, 22 W.C.D. 323 (1962); Moe v. Univ. of Minn., 70 W.C.D. 395 (W.C.C.A. Apr. 27, 2009), summarily aff’d, 773 N.W.2d 77 (Minn. 2009).  An employee is in the course of employment while providing services to the employer for “a reasonable period beyond actual working hours if the employee is engaged in activities reasonably incidental to the employment.”  Hohlt, 897 N.W.2d at 783 (quoting Starrett v. Pier Foundry, 488 N.W.2d 273, 274 (Minn. 1992)).  When the route to or from the job site is peculiar to and closely connected with the employment, the route of ingress or egress is considered part of the premises.  Sommer v. Schuler Chocolates, Inc., 239 Minn. 180, 183, 58 N.W.2d 194, 196, 17 W.C.D. 294, 296-97 (1953).

The compensation judge found that the employee was instructed to cross the street, walk between buildings to the jobsite fence, and follow the fence to the gate to enter the building.  She found that the employee wore all the safety equipment necessary to enter the jobsite and she further found that the employee fell just outside the fence surrounding the construction site immediately before the start of a meeting on the specifics of the job.  The fence encroached upon the only means of ingress available to the worksite.  Given these circumstances, the judge could reasonably conclude that the employee’s route to the early morning meeting was peculiar and connected to his employment and therefore the employee was in the course and scope of employment when he fell.  The judge did not abuse her discretion in determining that the employee’s injury was within the time and place requirements of the statute, and we affirm.