MELANIE DOWLING, Employee/Appellant, v. THEKEY, LLC, and BERKSHIRE HATHAWAY HOMESTATE COS., Employer-Insurer/Respondents, and UCARE, ALLINA MED. CLINIC, and NOVACARE OUTPATIENT REHAB., Intervenors.
ARISING OUT OF AND IN THE COURSE OF. Substantial evidence supports the compensation judge’s determination that an injury sustained by a home health care worker seven hours after a work shift and four hours before her next work shift, while performing no duties for the care client, and while staying in the client’s guest room overnight for her personal convenience, did not arise out of and in the course of her employment.
Compensation Judge: Stacy P. Bouman
Attorneys: Luke A. Smith, LawSmith, PLLC, Minneapolis, Minnesota, for the Appellant. Kyle T. Kustermann, Erstad & Riemer, P.A., Edina, Minnesota, for the Respondents.
Affirmed.
THOMAS J. CHRISTENSON, Judge
The employee appeals the compensation judge’s determination that her right ankle injury did not arise out of and in the course of her employment. We affirm.
The employee, Melanie Dowling, began working as a caregiver providing personal care services to clients of the employer, TheKey, LLC, on February 1, 2021. On January 13, 2021, as part of the hiring process, the employer provided documents to the employee which she signed to note receipt.[1] The documents included a Job Description, Caregiver Employment Agreement, Standards of Professional Conduct, Workplace Safety Rules, Caregiver Code of Ethics, Acknowledgement of Receipt of the Employee Handbook, and Employee Notice-Minnesota.[2] (Ex. 3.) The parties dispute whether the employee was provided with a Caregiver Employee Manual (Ex. 2) by the employer before starting work as a caregiver. (T. 33, 57.)
In her position as a caregiver, the employee provided personal care services to the employer’s clients, including grocery shopping, assistance with activities of daily living, transfers to and from wheelchair to bed, and showering. The employee’s workplace was the home of each client. The hours worked by the employee varied for each client and might include overnight shifts. Any issues involving a client or scheduling were to be discussed by telephone with a representative of the employer.
On October 22, 2022, the employee was scheduled to assist a client living in Cottage Grove from 9:00 a.m. to 10:00 p.m., with another shift for the same client starting at 9:00 a.m. the following day. Because the drive from the employee’s home in Blaine to Cottage Grove took 45 to 60 minutes, on two prior dates the employee had spent the night at the client’s home in a guest room for her convenience in avoiding the round-trip commute. The employee had not notified the employer she had ever spent the night at the client’s home.
Sometime during the employee’s shift on October 22, 2022, the client fell and was transported by ambulance to the hospital. After the fall, the employee went to the grocery store to shop for her own personal meals for the next day’s shift. The employee and the client’s wife exchanged text messages about the employee’s schedule in which the employee stated she planned on spending the night at the client’s home. At 8:52 p.m., the client’s wife texted the employee, “Do u just want [to] be off, & sign in again tomorrow at 9:00 AM?” In response at 9:41 p.m., the employee replied that she had “punched out when I left your house,” and at 9:42 p.m., texted “I will be spending the night[.] I’ll punch back in at 9 am tomorrow.” The client’s wife responded in part, “You are clocked out & done except [i]f I should really need u.” (Ex. F.) Ultimately, it was the employee’s decision to stay the night at the client’s home. (T. 75.)
On October 23, 2022, the employee woke up at 5:00 a.m. in the client’s guest bedroom needing to use the bathroom. As the employee was placing her feet on the floor, she slid off the bed, twisting her right ankle and falling as she stepped out of bed. (Finding 22.) The employee was not performing any work duties when the incident occurred and she was between shifts. (Finding 33; Ex. G.) The employee began her shift later that morning at 9:00 a.m. and worked until its completion at 10:00 p.m.
The employee was seen by Dr. Shannon Shevock-Johnson at Shoreview Urgent Care on October 24, 2022, for the injury to her right ankle. An x-ray revealed a closed displaced distal fibular fracture. A walking boot and an orthopedic evaluation were recommended. On November 1, 2022, the employee was seen for an orthopedic evaluation at Allina Health Orthopedics – Coon Rapids and surgery was recommended. On November 3, 2022, the employee underwent an open reduction internal fixation (ORIF) of her right bimalleolar ankle fracture by Dr. Gennadiy Busel at WestHealth Surgery Center. Following surgery, the employee attended physical therapy at NovaCare Rehabilitation.
The employee first reported the right ankle injury to her employer on November 1, 2022. On December 9, 2022, she filed a claim petition seeking to establish primary liability for the injury and claiming wage loss benefits and medical expenses.
On December 13, 2022, the employee was released to work full time with restrictions by Physician Assistant Shari A. Fahey of Allina Health Orthopedics – Coon Rapids. The employee began a new job at a methadone clinic on January 30, 2023.
The employer and insurer retained Dr. William Simonet for an independent medical examination of the employee, which was conducted on June 5, 2023. The employee complained of right hip and bilateral knee pain during the evaluation. X-rays taken revealed a healed right distal fibular fracture and osteoarthritis of both knees. Dr. Simonet opined the employee sustained the right distal fibula fracture on October 23, 2022, but she did not sustain any consequential injuries related to her ankle fracture including to her bilateral knees, right hip, or low back. Dr. Simonet also opined the employee had no permanent partial disability or work restrictions related to the right ankle injury, the medical care provided for that injury was necessary, no future treatment was needed, and any medical treatment to the employee’s knees, hip, or low back was unrelated to her right ankle injury.
On December 15, 2023, the employee’s claim came on for hearing before a compensation judge. The employee testified that when she discussed taking the assignment on October 22 and 23, 2022, she told the employer’s staffing coordinator that she might stay the night at the client’s home, although she had not made a final decision. She also testified that she had received permission from the employer’s staffing coordinator to stay overnight at the client’s home from October 22 to October 23, 2022. The employer’s witness, a caregiver ambassador, testified that she was responsible for managing caregivers like the employee and assuring that they follow the employer’s policies and procedures. She testified that there was no documentation that the employee had received permission to stay at the client’s home beyond her assigned shift and that the employee had violated company policy by doing so without prior approval. She also testified that this policy is intended to keep a professional boundary between the caregiver and client and to preserve a client’s privacy.
On March 1, 2024, the judge issued her findings and order. The judge found that the employee’s right ankle injury did not arise out of or in the course of her employment and denied the employee’s claims.[3] (Finding 34.) 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 compensation judge’s finding that the employee’s right ankle injury did not arise out of and in the course of her employment. The judge’s determination was based in part upon unappealed findings that:
In reaching her decision, the judge determined the employee’s testimony regarding the reason she stayed overnight at the client’s home was inconsistent and unreliable. (Mem. at 8.) The employee argues the overnight stay at the client’s home was reasonably related to her work and not wholly personal, that the judge’s interpretation of the employee’s testimony for the overnight stay was manifestly contrary to the evidence, and that the findings and order are not supported by substantial evidence. We are not persuaded.
Employers are liable to pay workers’ compensation benefits for an employee’s personal injuries arising out of and in the course of employment. Minn. Stat. §§ 176.021, subd. 1, 176.011, subd. 16; MacNamara v. Jennie H. Boyd Trust, 287 Minn. 163, 177 N.W.2d 398, 25 W.C.D. 132 (1970). “Arising out of” refers to the causal connection between the employment and the injury, and “in the course of” refers to the time, place, and circumstances of the injury. Gibberd v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988). Generally, the “in the course of” requirement limits compensable injuries to those which “occur within the time and space boundaries of employment.” Foley v. Honeywell, Inc., 488 N.W.2d 268, 272 (Minn. 1992); see also Karstad v. Myles Lorentz, Inc., 75 W.C.D. 207, 211 (W.C.C.A. 2015) (an employee’s retrieval of private belongings for personal purposes three weeks after layoff was not in the course of employment). Each case involving the issue of whether an injury arose out of and in the course of employment stands on its own facts. Gibberd, 424 N.W.2d at 780, 40 W.C.D. at 1047 (citing Novack v. Montgomery Ward & Co., 158 Minn. 495, 198 N.W. 290, 2 W.C.D. 156 (1924)). The employee bears the burden of proving that a personal injury arose out of and in the course of the employment. Minn. Stat. § 176.021, subd. 1.
Whether the injury arose out of and in the course of employment is a legal question which we review de novo. A determination of whether an injury occurs within a reasonable time and place is a mixed question of fact and law. In reviewing the factual findings that support the legal conclusion, we apply a substantial evidence standard. See Hohlt v. Univ. of Minn., 897 N.W.2d 777, 77 W.C.D. 509 (Minn. 2017); see also Keltner v. Spartan Staffing, LLC, 77 W.C.D. 755 (W.C.C.A. 2017).
An employee’s injury is considered to have been “in the course of” employment when the injury occurs while 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, in an area considered a part of the work premises. Blattner v. Loyal Ord. of Moose, 264 Minn. 79, 117 N.W.2d 570, 22 W.C.D. 323 (1962); see also Moe v. Univ. of Minn., 70 W.C.D. 395 (W.C.C.A. 2009), summarily aff’d, 773 N.W.2d 77 (Minn. 2009). A “reasonable” time has included up to 45 minutes before the official workday begins and up to an hour after the official workday ends. See Satack v. State, Dep’t of Pub. Safety, 275 N.W.2d 556, 557, 31 W.C.D. 260, 261 (Minn. 1978); Blattner, 264 Minn. at 80, 117 N.W.2d at 571, 22 W.C.D. at 324. In this case, there is no dispute that the employee’s injury occurred at the employee’s place of work at a time when she was not performing work for the employer. The issue is whether the employee’s injury occurred while she was “engaging in activities reasonably incidental to employment.” Starrett v. Pier Foundry, 488 N.W.2d 273, 274, 47 W.C.D. 176, 177 (Minn. 1992) (an injury within an hour of the beginning of the employee’s shift); see also Sandmeyer v. City of Bemidji, 281 Minn. 217, 161 N.W.2d 318, 24 W.C.D. 622 (1968).[4]
The compensation judge found that the employee’s right ankle injury did not arise in the course of her employment, concluding that after clocking out following her work shift, the employee was no longer engaged in activity reasonably incidental to her employment, and that the injury occurred outside a reasonable period after and before her scheduled work shifts. The employee’s principal argument on appeal is that the injury occurred “in the course of” employment because the overnight stay was incidental to her caregiver duties. In considering the record before us, we note that the injury happened seven hours after the employee had stopped providing any personal care duties to the client and four hours before the start of her next shift. Based upon facts and evidence presented, we cannot conclude that the judge erred by determining that the employee’s ankle injury was not sustained as an incident of her work duties for the employer.
The employee also argues that the compensation judge’s findings regarding the circumstances of the employee’s overnight stay, which were the basis of the judge’s determination that the employee’s testimony was inconsistent and unreliable, are manifestly contrary to the evidence. The judge considered and weighed the evidentiary record and chose to rely on the testimony of the employer’s witness over that of the employee regarding whether the employee sought permission from the employer to stay overnight at the client’s home on October 22-23, 2022. (Findings 19, 21.) The judge also found, contrary to the employee’s testimony, that the client’s wife had not requested that the employee stay overnight. (Finding 31.) Assessment of a witness’s credibility is a unique function of the trier of fact and this court must give due weight to the compensation judge’s opportunity to assess the credibility of witnesses. See Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989). Where the evidence reasonably allows different inferences, the inference drawn by compensation judge is generally upheld. Dille v. Knox Lumber, 452 N.W.2d 679, 681, 42 W.C.D. 819, 823 (Minn. 1990). We therefore affirm the compensation judge’s findings on witness credibility and reliability.
Substantial evidence supports the compensation judge’s findings that the employee’s injury was not reasonably incidental to her employment and did not arise out of and in the course of her employment. Accordingly, we affirm.
[1] The employment documents reference Home Care Assistance (HCA) as the employer. Based upon an examination of Exhibit 2, the employer was formerly known as HCA.
[2] The Job Description indicated the employee was to notify the employer about changes in the client’s condition or any incidents occurring during a shift. The Caregiver Employment Agreement required the employee to report the start and end times of each shift and to report any injury immediately per the Workplace Safety Rules. Under the Caregiver Code of Ethics, employees should never ask a client to share their home or apartment. Pursuant to the Caregiver Employment Manual, a caregiver was not permitted to remain at the client’s premises during non-working hours except with prior approval of the employer and the client.
[3] The employee did not specifically appeal Finding 34, but listed the issue of whether her injury arose out of and in the course of employment in the notice of appeal. Where the issues raised in the notice of appeal adequately apprise the opposing party of the nature of the appeal, this court has jurisdiction to decide the appeal. Weinkauf v. Border States Indus., Inc., 77 W.C.D. 817, 823 (W.C.C.A. 2017) (citing Webb v. Hercules, Inc., 64 W.C.D. 519, 531 (W.C.C.A. 2004), summarily aff’d (Minn. Nov. 23, 2004)). In this case, the employee’s listing of the issue in the notice of appeal adequately apprised the employer and insurer of the nature of the appeal before this court.
[4] The employee cites Olding v. Factory Motor Parts, slip op. (W.C.C.A. Feb. 7, 2000) to support her argument that her presence at the client’s home at the time of the injury was incidental to her employment. In Olding, the employee, who was off work following surgery, was injured while delivering a return-to-work slip to the employer. This court affirmed the compensation judge’s decision that the delivery of the work slip at the employer’s request was incidental to the employment. Here, unlike the provision of the return-to-work slip in Olding, the employee’s overnight stay at the client’s home was not at the request of the employer.