Compensation Court of Appeals Office of Appellate Courts
M. Uhrbom, Brown & Carlson P.A., for relators.
B. Peterson, Falsani, Balmer, Peterson, Quinn & Beyer,
Duluth, for respondent.
A. Kleinschmidt, Cousineau McGuire Chartered, Minneapolis,
Minnesota, for amicus curiae Defense Lawyers Association.
Anderson, J. Dissenting, Lillehaug, Chutich, and McKeig, JJ.
Workers' Compensation Court of Appeals erred by
substituting its own view of the evidence to overturn the
compensation judge's determination that the employee had
failed to establish her claim for benefits by a preponderance
of the evidence.
end of her shift, respondent Kristel Kubis fell and injured
her shoulder while rushing up a staircase at the workplace of
her employer, Community Memorial Hospital Association (CMH).
Kubis filed a claim for workers' compensation benefits.
The compensation judge held a hearing, found that Kubis
failed to prove by a preponderance of the evidence that her
injury arose out of her employment, and denied the claim.
Kubis appealed to the Workers' Compensation Court of
Appeals (WCCA), which reversed the compensation judge's
decision. Because we conclude that the WCCA impermissibly
substituted its own view of the evidence for that of the
compensation judge, we reverse the WCCA's decision and
reinstate the compensation judge's decision.
a 54-year-old registered nurse, began working at CMH in
2006. Her position as a medical-surgical nurse
at CMH required her to be on her feet for most of her shift.
At the compensation hearing, Kubis testified that her knees
would become fatigued after working long hours.
17, 2014, Kubis worked her scheduled shift from 3:00 p.m. to
11:30 p.m. This was the fourth day in a row that Kubis had
worked. At the end of her shift, Kubis was "in
report" on the second floor, which involved giving the
incoming shift of nurses a report on patients and often would
occur after the end of a nurse's actual shift. At 11:45
p.m., as Kubis was reporting, a code was called on the ground
floor. The code was a "mock code" that simulated a
medical emergency. Kubis received permission from her direct
supervisor that evening to respond to the code.
responding to the mock code and attending the debriefing that
followed, Kubis needed to return to the second floor to
complete her report to the next shift and clock out. Kubis
testified that she wanted to go upstairs because she was
"afraid of the overtime" and she "wanted to
report off to the next crew." Kubis looked across the
hallway toward the elevators and saw that the doors to one of
the three elevators were closing. These elevators are open to
the public. Kubis decided to take the stairs rather than call
for a different elevator because she believed that using the
stairs was faster than waiting for another elevator. The
stairs at CMH also are open to the public. Kubis generally
did not take the stairs at work because she feared tripping.
As Kubis hurried up the stairs, she tripped and fell. There
is a handrail on each side of the stairwell, the stairwell
itself was not defective in any way, and there was nothing on
any of the stairs that could have caused the fall.
her fall, there had been general discussions at CMH about
limiting overtime, specifically, "unnecessary
overtime." These concerns related to employees
completing their work duties, but then failing to clock out
immediately and staying past the end of their shift. There
was no written policy at CMH regarding limiting overtime.
Kubis's direct supervisor testified at the hearing before
the compensation judge that "unnecessary overtime"
does not include responding to a code or completing the
report to the next shift after the employee's assigned
shift has ended. Employees also were instructed not to rush
or hurry their job duties to avoid overtime because CMH
"deal[s] with people's lives."
before her fall, Kubis and her direct supervisor discussed
performance issues Kubis was having at work. As a result of
these issues, the direct supervisor advised Kubis "to
stay and complete her documentation, thus authorizing
overtime." The direct supervisor never told Kubis that
the performance issues related to her working overtime or
that she was being disciplined for working overtime. In fact,
Kubis had worked overtime in 10 of the 13 pay periods
preceding her fall. Kubis often worked overtime because she
"always [went] in to report last." Even though she
always reported last, Kubis testified that she was
"afraid" of working overtime.
went to the emergency room the day after she fell. Almost one
month later, her doctor placed her on a work restriction,
prohibiting her from using her right arm. Because CMH was
unable to accommodate this restriction, she has never
returned to work at CMH. Her last day of employment at CMH
was July 15, 2014. Kubis had shoulder surgery on October 20,
2014, but she continues to experience pain in her shoulder
and down her right arm.
filed a claim petition for workers' compensation
benefits, and a compensation judge held a hearing on the
claim. Before the hearing, the parties stipulated that all of
the medical expenses at issue were related to her right
shoulder injury, were reasonable and necessary, and were
causally related to Kubis's fall. The parties also
stipulated that Kubis's period of temporary partial
disability began on July 15, 2014, and that her average
weekly wage on the date of the injury was $1,
370.64. The only issue contested at the hearing
was whether Kubis's right shoulder condition was a
compensable work injury arising out of her employment.
was the only witness to testify in support of her claim at
the hearing. Shelly Demers, director of staff education and
infection prevention, and Sarah Motschenbacher, director of
inpatient services, testified on behalf of CMH. Additionally,
CMH submitted an expert report from an architect and
photographs of the lobby and stairwell at CMH. The report and
photographs demonstrate that there was nothing hazardous
about the staircase on which Kubis fell.
the hearing, the compensation judge filed findings of fact
and an order that denied and dismissed Kubis's claim. The
compensation judge acknowledged that, as Kubis testified,
"she sometimes ends up on overtime when she is engaged
in reporting information to members of the oncoming shift, as
she was doing on the night of the injury, " but found
that Kubis "has never received a written warning for
working overtime in those circumstances." The
compensation judge also noted Kubis's assertion that
"her right shoulder injury arose out of her employment
because she was rushing up the stairs to log off as quickly
as possible to comply with management's directive."
Most important to this appeal, the compensation judge found
that her "claim that she was rushing up the stairs
because she felt pressured to do so because of the hospital
policy encouraging employee's [sic] to log out on a
timely basis at the end of their shifts is not
credible." (Emphasis added.) Accordingly, because
Kubis failed to establish by a preponderance of the evidence
that her injury was caused by an increased risk that arose
out of her employment, the compensation judge determined that
her injuries were not compensable.
WCCA reversed. Kubis v. Cmty. Mem'l Hosp.
Ass'n, No. WC15-5842, 2016 WL 845830, at *5 (Minn.
WCCA Feb. 5, 2016). The WCCA explained that the issue on
appeal was "whether the employee's employment
increased her risk of injury" and therefore established
that her injury arose out of her employment. Id. at
*3. The WCCA then identified two reasons from the record that
could support the claim of increased risk: "fatigue and
hurrying." Id. at *4-5. The WCCA concluded that
there was a lack of substantial evidence to support
Kubis's fatigue claim. Id. at *4. As for her
claim of hurrying, the WCCA looked to "two different
motivations, concern over accruing overtime and needing to
promptly report to the oncoming shift." Id. at
WCCA did not disturb the compensation judge's finding
that Kubis's concerns over accruing overtime lacked
credibility. Id. But, the WCCA determined that
Kubis's claimed second motivation, the need to
"promptly report to the oncoming shift, " was
"not addressed by the employer and insurer or the
compensation judge." Id. The WCCA concluded
that Kubis "was rushed to report to the next shift"
and held that, "[w]here an employee who normally avoids
the stairs due to prior knee problems, takes them because she
feels rushed to report to the next shift, and in the process
runs up the stairs and falls, the arising out of element is
established." Id. Accordingly, the WCCA
"reverse[d] the compensation judge's decision and
[found] that the employee's injury arose out of her
appeal, CMH argues that the WCCA erred by failing to adhere
to the appropriate standard of review; that the WCCA erred as
a matter of law in how it applied the increased-risk test set
forth in Dykhoff v. Xcel Energy, 840 N.W.2d 821
(Minn. 2013); and that an injury sustained because of an
employee's "subjective belief" of a need to
rush without an increased risk occasioned by employment, such
as a defect in the staircase, cannot satisfy the
increased-risk test. Because we agree that the WCCA erred by
failing to adhere to the appropriate standard of review, we
need not decide whether the WCCA erred in its application of
the increased-risk test or whether an employee's
subjective belief establishes an increased risk sufficient to
prove that an employee's injury arises out of the
employment. See id. at 826 (holding that an employee
must satisfy both the "arising out of" and the
"in the course of" requirements of the Workers'
Workers' Compensation Act 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 (2016). It is the employee's burden to
demonstrate by a preponderance of the evidence that the
injury arises out of and in the course of employment.
Id., subds. 1-1a (2016); Dykhoff, 840
N.W.2d at 826. Here, there is no dispute that Kubis satisfies
the "in the course of" requirement. Therefore, the
only requirement at issue in this appeal is the "arising
out of" requirement.
review of decisions by the WCCA is limited. Specifically,
when we review a decision by the WCCA, we "will intrude
only if, viewing the facts in the light most favorable to the
findings, it appears that the findings are manifestly
contrary to the evidence or that it is clear reasonable minds
would adopt a contrary conclusion." Hengemuhle v.
Long Prairie Jaycees, 358 N.W.2d 54, 61 (Minn. 1984). We
will reverse the WCCA when we "determine that the [WCCA]
clearly and manifestly erred by rejecting findings supported
by substantial evidence and substituting its own
findings." Dykhoff, 840 N.W.2d at 825 (citing
Gibberd by Gibberd v. Control Data Corp., 424 N.W.2d
776, 779 (Minn. 1988) ("[T]he WCCA is not to substitute
its view of the evidence for that adopted by the compensation