ARISING OUT OF & IN THE COURSE OF – SPECIAL HAZARD. Substantial evidence supports the compensation judge’s determination that the employee was not exposed to a special hazard which caused her back injury.
Compensation Judge: Nicole B. Surges
Attorneys: Eric S. Schwab, Meuser, Yackley & Rowland, P.A., Eden Prairie, Minnesota, for the Appellant. William G. Laak, McCollum Crowley, P.A., Bloomington, Minnesota, for the Respondent.
Affirmed in part, reversed in part, and remanded.
DEBORAH K. SUNDQUIST, Judge
The employee appeals the compensation judge’s finding that the employee’s back injury, occurring on her way to work, did not arise out of and in the course of her employment and that the injury was not compensable as a special hazard or special errand. We affirm the compensation judge’s determination that the employee was not subject to a special hazard at the time she was injured. As the judge erred in applying the special errand exception, we reverse the denial of compensability for the September 8, 2021, injury and remand for determination of benefits.
Cindy Ludwig, the employee, worked as a public service associate for Dakota County, the employer, since 2002. As a public service associate, she reported to work at an office building in Hastings, Minnesota. There, she used an employer-owned computer laptop, cords, three-ring binder, paper, laptop docking station, keyboard, and chair. In March 2020, in response to the COVID-19 pandemic, the employer directed the employee to work from home. To be able to do so, she brought home all employer-owned equipment needed for her work. A year and a half later, the employee testified that she had a conversation with her manager and the manager of her department on a conference call and was directed to return to work at the office on September 8, 2021. The night before, to prepare for her return to the office, she placed the work equipment she had at home in a bin, including two monitors, a laptop, a three-ring binder, cords, paper, a laptop docking station, and a keyboard. There is no evidence that there was backup equipment available on-site for the employee to perform her job.
The employee testified that on the morning of September 8, 2021, she planned to leave her home at 7:15 a.m. to bring back her work equipment and set it up in order to be at her desk at her regular 8:00 a.m. start time. Before she was required to work from home, the employee would normally leave her home between 7:30-7:35 a.m. to arrive at the office at 8:00 a.m. That morning, at around 7:15 a.m., the employee opened the door of her vehicle, pushed the loaded bin into the driver side back seat and fell backward onto her lawn. She testified that she did not know the cause of her fall but surmised that it was the action of pushing on the bin. She testified that nothing about the equipment caused the fall.
The employee notified the employer of the injury and sought care at M Health Fairview Woodwinds emergency room. There, she complained of back pain after falling backward while loading a heavy item into the back of her van. On examination, the employee had diffuse tenderness. She underwent several diagnostic scans which showed some mild thoracic spondylosis, endplate depressions at T3 and T4, and lumbar spondylosis at the L4-5 and L5-S1 levels. She was released to return to work on September 11, 2021, advised to take Tylenol and ibuprofen, and prescribed oxycodone.
The employee returned to the office on September 15, 2021, using a cane and a wheeled bag to aid with transporting her work equipment. She continued to have low back pain and later, she suffered two more injuries. On October 29, 2021, she fell at work and struck her head and knees, exacerbating her pain. A lumbar spine MRI scan taken on November 11, 2021, indicated a mild to moderate subacute L5 compression deformity and she was prescribed a spinal cord stimulator trial in March 2022. On May 7, 2022, she fell at home while using her walker, injuring her left ankle.
Two medical experts offered their opinions on whether the employee’s condition was causally related to the work injuries. On August 2, 2022, Mark Engasser, M.D., performed an independent medical examination (IME) for the employer and insurer and opined that the September 8, 2021, fall was not a substantial contributing factor in the employee’s spine conditions. Though he agreed that the recommended spinal cord stimulator was reasonable for the employee’s overall condition, he concluded that the condition was not the result of either the September 8, 2021, or the May 7, 2022, fall. Instead, Dr. Engasser stated the need for that treatment was related to the employee’s “chronic back pain as a result of pathologic fractures (due to osteopenia).” (Ex. OO.)
Robert Wengler, M.D., evaluated the employee on January 16, 2023. Dr. Wengler opined that the September 8, 2021, injury was a significant injury to the spine suggestive of vertebral body microfractures. He explained that the October 29, 2021, injury aggravated the employee’s condition with a compression fracture of the L5 vertebra and endplate fractures at L3 and L4 as a result of her falls. (Ex. GG.) In a letter dated May 5, 2023, he stated that these injuries caused pain and weakness in the employee’s legs which required the employee to use a walker. The use of the walker, he concluded, was a substantial contributing factor to her May 7, 2022, ankle injury. (Ex. II.)
The employee filed a claim petition for payment of medical expenses and wage loss benefits and the matter was heard before a compensation judge on December 21, 2023. The judge found that the October 29, 2021, injury to the employee’s head and knees had resolved by November 15, 2021, and awarded wage loss and medical benefits for that time and denied the remaining claims. She also found that the September 8, 2021, injury suffered from a fall while the employee was at home loading her vehicle with office equipment did not arise out of and in the course of employment because the injury occurred during her commute to work and therefore was not compensable. In her memorandum, the judge reasoned that both the special errand and special hazard exceptions to the commuting rule were inapplicable. 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).
On appeal, the employee contends that the compensation judge erred as a matter of law when she misapplied the special errand holding in Thompson v. Minn. Trial Cts. – Dist. 4, No. WC23-6519 (W.C.C.A. Jan. 26, 2024), writ filed (Minn. Feb. 26, 2024) to the facts of this case, arguing that a de novo review of the underlying facts using the proper legal analysis would result in coverage for the employee. She specifically argues that the judge misapplied the requirements of the special errand exception, noting that any injury occurring during such an errand is compensable. Citing Olson v. Total Specialty Contracting, Inc., No. WC23-6510 (W.C.C.A. Nov. 9, 2023), summarily aff’d (Minn. July 8, 2024), she also argues that there was sufficient evidence to show she was exposed to a special hazard as she loaded her work equipment into her van thereby triggering the application of the special hazard exception.
For an employee’s personal injury to be compensable, the injury must arise out of and in the course of employment. Minn. Stat. § 176.021, subd. 1. “In the course of employment” generally refers to the question of whether the injury occurs “within the time and space boundaries of employment.” Foley v. Honeywell, Inc., 488 N.W.2d 268, 272 (Minn. 1992). Generally, injuries which occur while commuting to and from work are not compensable. Swanson v. Fairway Foods, 439 N.W.2d 722, 41 W.C.D. 1010 (Minn. 1989). However, exceptions to this rule include injuries occurring when an employee is called to engage in a special errand or is exposed to a special hazard that is causally connected to the employment. Gibberd v. Control Data Corp., 424 N.W.2d 776, 783, 40 W.C.D. 1040, 1052 (Minn. 1988).
The requirements of the special hazard exception were set out in the Minnesota Supreme Court case Nelson v. City of St. Paul, 249 Minn. 53, 81 N.W.2d 272, 19 W.C.D. 120 (1957). In Nelson, a schoolteacher was injured on a public sidewalk near her school on the way to work when she was struck by a school-supplied baseball that had been batted from the school playground by a student during a supervised school-related activity. The supreme court held that the requisite causal connection for the special hazard exception is met when the employment exposed the employee to a hazard which originated on the employment premises, was part of the working environment, or peculiarly exposed the employee to an external hazard subjecting the employee to a greater risk than when pursuing ordinary personal affairs.
Here, the compensation judge determined the employee did not meet the special hazard exception because the injury occurred during her commute to work. We agree that the facts of the case do not meet the requirements of the special hazard exception. Specifically, the exception requires a hazard to which the employee was exposed to have caused the injury. Here, the employee claims that the hazard existed in the need for her to move the employer’s equipment, which likely caused her to fall. However, the judge found the history provided by the employee as to how the September 8, 2021, injury occurred was not reliable as it had changed over time. Because the compensation judge could reasonably conclude that the employee did not prove that a hazard caused her injury, we affirm the judge’s finding that the special hazard exception does not apply.
We reach a different conclusion with respect to the “special errand” exception. The Minnesota Supreme Court has held that off-premises injuries sustained during a special errand are generally compensable. Williams v. Hoyt Constr. Co., Inc., 306 Minn. 59, 237 N.W.2d 339, 28 W.C.D. 101 (1975). An employee engaged in a special errand for the employer is considered to be in the course of employment from the time the employee leaves home until the time the employee returns. Bengston v. Greening, 230 Minn. 139, 41 N.W.2d 185, 16 W.C.D. 137 (1950). In Nehring v. Minn. Mining & Mfg. Co., 193 Minn. 169, 171, 258 N.W. 307, 308, 8 W.C.D. 321, 323 (1935), the supreme court explained that when an employee, while off from regular employment, is called to do an errand or sent out on a mission by the employer, the errand is “a special service” that begins the moment the employee leaves home, or the place where the call comes in, and ends only upon return. In other words, an employee on a special errand has portal-to-portal coverage so that any injury that occurs during the trip would arise out of and in the course of employment.
Therefore, an injury that occurs during a special errand need not be tied to the work activity in order to be compensable. In Bengston, an employee, who was asked to go to her employer’s office on a day off to review records with an accountant, was awarded benefits when she fell on her way home between a sidewalk and her own house. Because the requested errand was the reason that the employee left her home and returned to it, the employee had portal-to-portal coverage under the Workers’ Compensation Act. Even though the injury occurred after she had completed the task of reviewing records with an accountant, had been dropped off near her home, and was near her own house when she fell, she had not completed the errand and was within the portal-to-portal coverage of a special errand. This exception applies when an employee who has regular working hours is requested to perform a service, not a regular task, outside of working hours and requires a trip as an integral part of the service performed. Jonas v. Lillyblad, 272 Minn. 299, 137 N.W.2d 370, 23 W.C.D. 659 (1965).
Citing Thompson, the compensation judge determined that the employee failed to meet her burden of proving a special errand exception, reasoning that the employee acknowledged that the bin containing her work equipment did not fall on her nor did any of the equipment fall out of the bin. She added that the “employee cannot even state for certain whether pushing the bin caused her to fall.” (Mem. at 23.) The judge concluded that no work connection to the employee’s injury existed, noting that the equipment carried by the employee in Thompson had not caused his fall, and that because the employee had not proven that the bin of equipment contributed to her fall, her injury was also not compensable. We distinguish the analysis of Thompson from the facts of this case.
In Thompson, we focused on whether bringing the equipment back to work was a requested or necessary work errand. We noted the lack of evidence in support of any request by the employer to bring the equipment back to work and the employee’s acknowledgment that backup equipment was available on-site and he did not need to bring the equipment back to work on that specific date. Here, the employee testified that she was told to take her equipment and work from home in March 2020. Over a year later, she was told by her office managers to return to work on September 8, 2021. Unlike Thompson, there was no evidence in the record that the equipment needed for her job was available to the employee on-site. To do her job, the employee had to return to work with her office equipment, which she testified meant that she had to pack up a bin with the employer-owned equipment and leave for work earlier than she had in the past. Bringing in the equipment required her to work outside her prescribed working hours, albeit minimally. The trip included an errand which was an integral part of the service performed because the employee needed the bin of equipment to do her job, and the task was not regular because the request to bring back all the equipment would happen only once. That the employee could not state for certain what caused her fall is not dispositive under the special errand exception, which covers injuries portal to portal.
We conclude that the judge erred by not applying the special errand exception in this case. The employee’s September 8, 2021, injury occurred during a special errand while she was in the process of returning office equipment to the employer by request before her regular shift, and therefore arose out of and in the course of her employment. We reverse Finding 85, vacate Finding 90, and remand to the compensation judge for determination of the nature and extent of the injury and what benefits, if any, are due and owing as a result of the September 8, 2021, work injury and its sequelae.