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Dykhoff v. Xcel Energy

Supreme Court of Minnesota

December 26, 2013

Toni Dykhoff, Respondent,
Xcel Energy and CCMSI, Relators, and North Memorial Health Care, Intervenor.

Workers’ Compensation Court of Appeals Office of Appellate Courts

Michael G. Schultz, Sommerer & Schultz, P.L.L.C., Minneapolis, Minnesota, for respondent.

James S. Pikala, Christine L. Tuft, Noelle L. Schubert, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota, for relators.

Jessica Syverson, Kris. A. Wittwer Law Firm, Roseville, Minnesota, for intervenor.


1. To satisfy the "arising out of" requirement of Minn. Stat. § 176.021, subd. 1 (2012), the employee must prove that there is a causal connection between the employee's employment and the injury for which compensation is sought.

2. The Workers' Compensation Court of Appeals erred in applying a balancing test that attributed greater weight to the "in the course of" requirement of Minn. Stat. § 176.021, subd. 1 to conclude that the employee established a causal connection between her employment and her injury.


GILDEA, Chief Justice.

Relator Toni Dykhoff fell and dislocated her left patella while attending a required training session at the general office of her employer, Xcel Energy. Dykhoff filed a claim for workers' compensation benefits. The compensation judge held a hearing, found that Dykhoff's injury did not arise out of and in the course of her employment, and denied Dykhoff's claim. Dykhoff appealed to the Workers' Compensation Court of Appeals (WCCA), which reversed the compensation judge. Because we conclude that the WCCA erred as a matter of law in concluding that Dykhoff's injury was compensable, we reverse the ruling of the WCCA and reinstate the decision of the compensation judge.

The facts in this case are largely undisputed. Toni Dykhoff, a 47-year-old journeyman electrician, began working at Xcel Energy on August 17, 2009. Her job duties included electronically monitoring power and transmission lines in Minnesota, North Dakota, and South Dakota. Her job was a desk position, and she usually worked out of Xcel's Maple Grove Service Center. Typically, Dykhoff wore jeans and other casual wear to work. Prior to her fall, Dykhoff had no history of knee problems, no problem walking, used no assistive devices, and walked with "a normal gait."

Dykhoff was instructed to attend a training session taking place on June 20, 2011, at Xcel's general office in downtown Minneapolis. Dykhoff was instructed to wear "dress clothes" for the training session, as was the custom for employees attending meetings at the general office. Dykhoff therefore arrived at the general office, on June 20, 2011, wearing a dress shirt and dress pants. She also wore shoes with two inch wooden heels. Apart from the general direction to wear "dress clothes, " no one told Dykhoff what type of shoes to wear.

Dykhoff arrived at the general office at approximately 8:00 a.m. on June 20 and went through security, arriving at the lower-level meeting room at approximately 8:05 a.m. Upon exiting the elevator on the lower level, she placed her coat, purse, and computer bag on a bench and walked over to the hallway where the meeting room was located. Seeing no lights on and no one in the hallway, she turned on the lights in a small conference room near the entrance to the hallway. Dykhoff then came back to the bench, picked up her coat, purse, and computer bag, and began to walk back towards the conference room to wait. Dykhoff testified that she was walking at a normal pace.

While walking back to the conference room, Dykhoff fell, landing on her buttocks with both feet extended in front of her. When Dykhoff hit the floor, her left leg was at an awkward angle, she "felt a pop in [her] left knee" and her "knee pop[ped] out of joint." Dykhoff described the floor she fell on as "slippery, " "hard shiny linoleum" with a "highly polished surface." Dykhoff explained that she did not trip and that there was no possibility her leg gave out. Dykhoff acknowledged that immediately prior to her fall she had walked across the same stretch of floor without incident and that there was no incline where she fell, the floor was not wet, and there was no debris on the floor.

Shortly after Dykhoff's fall, a Facility Operations Manager for Xcel went to the lower level and found Dykhoff still laying on the floor, waiting for paramedics. The Facility Operations Manager confirmed that there was no debris on the floor and that the floor was dry. After paramedics took Dykhoff to the emergency room, the Facility Operations Manager and his colleague checked the floor and determined that it was shiny but not slippery. Additionally, the Facility Operations Manager and his colleague took pictures of the area that showed scuff marks on the floor near where Dykhoff fell. Dykhoff said that the scuff marks appeared to be where her feet slipped, and she confirmed that the marks were the same color as her wooden heels and were in a V shape, which was consistent with her description of her fall. Dykhoff was transported to North Memorial Medical Center, where she was treated for a left patellar dislocation.

Dykhoff filed a claim petition for workers' compensation benefits, and a compensation judge held a hearing on the claim. Prior to the hearing, the parties stipulated that all of the medical expenses at issue were related to Dykhoff's left knee injury, were reasonable and necessary, and were causally related to Dykhoff's fall. The parties also stipulated that Dykhoff's period of temporary total disability was one week and that her average weekly wage on the date of the injury was $1, 416.55. The only issue contested at the hearing, therefore, was "whether [Dykhoff's] left knee condition is a compensable work injury" arising out of her work activity.

At the hearing, Dykhoff testified regarding her actions and injury on June 20, 2011, as described above. The Facility Operations Manager testified on behalf of Xcel. As part of his job, the Facility Operations Manager testified that he is "constantly throughout the whole [general office] building daily" and is "looking for things to make sure, especially at the [general office], make sure everything is clean and [] operable" and that "there's no safety issues or concerns." He further testified that the floor where Dykhoff fell is terrazzo flooring made of "chips of . . . marble, granite, and etc." He stated that the floor where Dykhoff fell is "mopped nightly by our contractors" and is stripped and waxed twice a year, most recently about 1 month before Dykhoff fell. Additionally, Xcel submitted documentation of testing on the floor performed by a third party after the fall, which showed that the "coefficient of friction, " in other words, the slipperiness of the floor, was within Occupational Safety and Health Administration (OSHA) specifications.

Following the hearing, the compensation judge issued findings of fact and an order denying and dismissing Dykhoff's claim. The compensation judge held that for an injury to be compensable, "the employee must show that her injury was caused by an 'increased risk'—a risk related to her work activity or environment that heightened the likelihood of an injury beyond the level of risk experienced by the general public." The compensation judge found that "[Dykhoff] walked across the area where she fell without incident just moments before the fall occurred;" "an equally plausible explanation for [Dykhoff's] fall [was her] shoes with 2 inch heels;" and "the floor where [Dykhoff] fell was highly polished, very clean, dry and flat." The compensation judge found that the evidence "fail[ed] to establish the floor where [Dykhoff] fell on June 20, 2011 was slippery, " and "fail[ed] to establish [Dykhoff] was at any increased risk for falling due to the condition of the floor." Accordingly, because Dykhoff failed to establish that her injury was caused by an increased risk, the compensation judge determined that Dykhoff's injuries were not compensable.

The Workers' Compensation Court of Appeals reversed. Dykhoff v. Xcel Energy & CCMSI, 2012 WL 6592145 (Minn. WCCA Nov. 29, 2012). The WCCA considered three tests to determine whether Dykhoff's injury arose out of her employment: the increased risk test, under which the employee must show that she is exposed to a greater risk than the general public; the positional risk test, under which the employee need only show that her employer placed her in the position where she was injured; and the work-connection balancing test derived from Bohlin v. St. Louis Cnty./Nopeming Nursing Home, 61 Minn. Workers' Comp. Dec. 69 (WCCA 2000), aff'd without opinion, 621 N.W.2d 459 (Minn. 2001). Dykhoff, 2012 WL 6592145, at *5-7. The WCCA concluded that the compensation judge erred by exclusively applying the increased risk test because "the proper test is the 'work-connection' analysis laid out in Bohlin, and the 'arising out of' element must be balanced with the 'in the course of' element to determine compensability." Id. at *10. The WCCA concluded that "[t]he arising out of element may not be as strong as it would be in a case that clearly passes the increased risk test, but the in the course of element is strong enough to outweigh any deficiencies here." Id. at *11. Accordingly, the WCCA "reverse[d] the compensation judge's determination that the injury did not arise out of and in the course [of] the employment, " relying in part on its conclusion that "the floor was certainly a contributing factor in [Dykhoff's] injury." Id. Xcel sought certiorari review.

On appeal, Xcel argues that the WCCA erred as a matter of law in applying the balancing test from Bohlin to assess whether Dykhoff's injury was compensable. Xcel also argues that the WCCA erred in substituting its findings of fact for those of the compensation judge. The WCCA is a "specialized agency of the executive branch, its members selected for their experience and expertise, " Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 61 (Minn. 1984), and is entrusted with deciding "all questions of law and fact arising under the workers' compensation laws of the state in those cases that have been appealed to the [WCCA]." Minn. Stat. § 175A.01, subd. 5 (2012). We will reverse the WCCA on review if we determine that it clearly and manifestly erred by rejecting findings supported by substantial evidence and substituting its own findings. Gibberd v. Control Data Corp., 424 N.W.2d 776, 779-80 (Minn. 1988). But when interpreting statutory provisions within the Workers' Compensation Act, we apply a de novo standard of review. Reider v. Anoka-Hennepin Sch. Dist. No. 11, 728 N.W.2d 246, 249 (Minn. 2007).


The question presented in this case is whether Dykhoff's injury is compensable under Minn. Stat. § 176.021 (2012). Section 176.021 provides that "[e]very employer is liable for compensation according to the provisions of this chapter and is liable to pay compensation in every case of personal injury or death of an employee arising out of and in the course of employment without regard to the question of negligence." Minn. Stat. § 176.021, subd. 1. The employee bears "[t]he burden of proof" to show that the injury "aris[es] out of and in the course of employment." Id. The statute defines "personal injury" as an "injury arising out of and in the course of employment . . . while engaged in, on, or about the premises where the employee's services require the employee's presence as a part of that service at the time of the injury and during the hours of that service." Minn. Stat. § 176.011, subd. 16 (2012).

Interpreting section 176.021, we have consistently held that there are two distinct requirements for an injury to be compensable under the statute—the "arising out of" requirement and the "in the course of" requirement. See e.g., Gibberd, 424 N.W.2d at 780 (holding that where an employee was assaulted while on a meal break on a public street by a person with no nexus to his employment, the employee's injury and death did not arise out of and in the course of his employment). The "arising out of" requirement "connote[s] a causal connection" and the "in the course of" requirement "refers to the time, place, and circumstances of the incident causing the injury." Id.; see also Hanson v. Robitshek-Schneider Co., 209 Minn. 596, 599, 297 N.W. 19, 21 (1941). There is no dispute here that Dykhoff satisfies the "in the course of" requirement because her injury ...

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