Ellen Forrest v. Children’s Health Care et al.

Ellen Forrest v. Children’s Health Care et al., WC18-6140 (W.C.C.A. August 16, 2018)

The Employee worked as a respiratory therapist for the Employer Children’s Health Care. On the day of the injury, the Employee was working at the St. Paul location, in which the Employee saw patients on the fourth, fifth, and sixth floors with the respiratory department was on the fourth floor. The Employee testified that she normally took the stairs if she was going up or down one or two floors but that she could also use the elevator. The Employee was on the sixth floor and using the stairs to go to the fourth floor to retrieve a medical device. The Employee testified that she was on the landing of the stairwell pivoting to descend the next set of stairs when her left foot did not pivot with her and she felt pain in her left knee.

The Employer and Insurer denied the Employee’s claim, alleging, in part, that the injury did not arise out of her employment. The compensation judge determined that, by the preponderance of the evidence, the Employee sustained an injury to her left knee arising out of and in the course and scope of her work activities. Specifically, the compensation judge found that the Employee was required to use the stairs on a regular basis to access various floor as part of her job and that alone increased the risk of injury.

The Employer and Insurer contended that the compensation judge erred in concluding that the Employee’s use of the stairs increased her risk of injury because the injury occurred on the landing between the stairs, rather than on the stairs themselves, and that unexplained injuries that occur on dry, clean, flat surfaces are not compensable under Dykhoff. The WCCA rejected this, considering the landing as a component of the stairway.

The Employer and Insurer also claimed that the compensation judge erred in concluding that the Employee was required to use the stairs as part of her job, since the Employee could have alternatively use the elevator. The WCCA also rejected this argument as it was also reject in the Roller-Dick case by the Supreme Court.

Lastly, the Employer and Insurer argued that the case was controlled by Kubis v. Cmty. Mem’s Hosp. Assoc., 897 N.W.2d 254, 77 W.C.D. 543 (Minn. 2017) and that Kubis stands for the proposition that use of a stairway at work does not represent an increased risk of injury. The WCCA rejected this argument, holding that Roller-Dick found the central holding in the Kubis case was related to the scope of review in cases involving a factual dispute. The WCCA held that because there was no factual dispute in this case, Kubis did not control.

The WCCA then turned to the question, not addressed in Kubis or Roller-Dick, of whether the use of stairs in the course of employment represents an increased risk of injury absent other circumstances. The Court cited its decision in Lein v. Eventide, in which the WCCA held that unlike the neutral risk in Dykhoff, use of stairs is not a neutral risk but represents an increased risk of injury. It further held that there is no requirement that there must be a hazard or something wrong with the stairs as that would amount to a negligence standard, which is expressly forbidden by the statute. The court recognized under the increased risk analysis a conscientious employer cannot avoid a workers’ compensation claim in the situation presented in this case but that is a result and function of the “grand bargain” between workers and employers that workers’ compensation laws were made to address.

The WCCA held that the stairs on the Employer’s premises constituted an increased risk of injury and that the Employee was in the course of her employment when she was injured on the stairs the claim was compensable and the compensation judge was affirmed.