Dykhoff v. Xcel Energy

Dykhoff v. Xcel Energy, Minn. Sup. Ct, Case Number A12-2324

In Dykhoff, the Minnesota Supreme Court declared that “increased risk test” determines whether an injury arises out of employment. This case brings needed clarity to the confusing case law surrounding the issue by rejecting the less demanding “positional risk test” and the balancing test used in Bohlin v. St. Louis Cnty. Nopeming Nursing Home, (WCCA 2000).

Facts of the Case:

Ms. Dykhoff was attending a required training session when she slipped and dislocated her patella. There was no clear explanation of what occasioned the injury. She did not trip. She was simply walking over a shiny, dry floor on the employer’s premises. Dykhoff described the floor as “slippery,” “hard shiny linoleum” with a “highly polished surface.” However, Xcel disputed that the floor was slippery. Also of note, Ms. Dykhoff was instructed to wear “dress clothes” and choose to wear two-inch wooden heels.

The only issue at hearing was “whether her left knee injury [was] a compensable work injury.”

The Compensation Judge rejected Dykhoff’s slippery floor theory and denied her claim. The Judge’s order explained that Dykhoff failed to pass the increased risk test. Specifically, Dykhoff failed to establish “a risk related to her work activity… that heightened the likelihood of an injury beyond the level of risk experienced by the general public.”

The Workers Compensation Court of Appeals reversed, reasoning that the proper test to apply was derived from Bohlin v. St. Louis Cnty. This work connection analysis balances the “arising out of” element and the “in the course of” element. In this scenario it was clear that an injury occurred on the employer’s premises during work hours, making the “in the course of” element is very strong. The WCCA reasoned that this element’s strength makes up for any deficiencies in the “arising out of” element. Therefore, the WCCA found the claim compensable.

The Supreme Court then reversed the WCCA. The Court emphasized that employees bear the burden of proving two distinct elements to establish causation. The “in the course of” element requires an injury within the time and space of employment. The “arising out of” element requires a causal connection between employment and the injury. This causal connection is proven by identifying some increased risk or special hazard associated with the employment. Any test that does not require separate showings of both elements “fails to give effect to all parts of Minn. Stat. § 176.021.”

The Court went on to affirm the Compensation Judge’s finding that Dykhoff’s employment presented no “special hazard” which subjected her to a greater risk than her everyday affairs. Therefore, Dykhoff failed to prove that her injury “arose out of” her employment.

Impact: Employees must establish that employment created an increased risk of injury. Injuries that are simply unexplained will not pass this test.