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Kubis v. Community Memorial Hospital Association

Supreme Court of Minnesota

June 28, 2017

Kristel Kubis, Respondent,
Community Memorial Hospital Association, and Greater Minnesota Self-Insurance Fund, with claims administered by Meadowbrook Insurance Group, Relators, and Essentia Health Systems and St. Luke's Clinics, Intervenors.

         Workers' Compensation Court of Appeals Office of Appellate Courts

          Gina M. Uhrbom, Brown & Carlson P.A., for relators.

          James B. Peterson, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, for respondent.

          Mark A. Kleinschmidt, Cousineau McGuire Chartered, Minneapolis, Minnesota, for amicus curiae Defense Lawyers Association.

          Anderson, J. Dissenting, Lillehaug, Chutich, and McKeig, JJ.


         The 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.



          ANDERSON, Justice.

         At the 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.


         Kubis, a 54-year-old registered nurse, began working at CMH in 2006.[1] 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.

         On June 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.[2] Kubis received permission from her direct supervisor that evening to respond to the code.

         After 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.

         Before 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."

         Also 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.

         Kubis 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.

         Kubis 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.[3] The only issue contested at the hearing was whether Kubis's right shoulder condition was a compensable work injury arising out of her employment.

         Kubis 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.

         Following 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.

         The 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 *5.

         The 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 employment." Id.


         On 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' Compensation Act).

         The 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.[4]

         Our 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 ...

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