Etta Tomah v. Good Samaritan Soc’y and Sentry Ins. Co., et. al.

Etta Tomah v. Good Samaritan Soc’y and Sentry Ins. Co., et. al., No. WC21-6436 (W.C.C.A. March 31, 2022)

Employee, Etta Tomah, appealed compensation judge, Radd Kulseth’s ruling that her right knee injury did not arise out of her employment. The W.C.C.A. affirmed the lower court’s decision.

Background (Medical and Procedural)

On January 7, 2020, Employee was working as a nursing assistant at a care facility ran by Employer, Good Samaritan Society. She injured her right knee after slipping and falling in the bathroom during her shift. She claimed she was simultaneously walking to the sink and pulling up her pants when she slipped and fell in water on the floor. As she fell, her knee also twisted.

Of note, two of Employee’s supervisors testified at the hearing (on behalf of Employer). One supervisor said that she completed an incident report after the slip and fall happened, and that Employee did not mention slipping on water and she also did not see evidence of any water on Employee’s clothes when the incident was reported. The other supervisor said that Employee told her about the incident after the fact and did not mention anything about slipping on water.

Employee was transported via ambulance to Maple Grove Hospital where she said she fell while standing when her knee gave out. Employee underwent an x-ray that revealed a small bony fragment along the lateral aspect of the patella. She then treated at Twin City Orthopedic (TCO) the next day and said she twisted her right knee at work. An MRI taken that day revealed a right lateral patellar dislocation and a small patellar fracture with a displaced fragment. She was then advised to undergo physical therapy.

Employee filed a Claim Petition on January 23, 2020, seeking temporary total disability (TTD) benefits and temporary partial disability (TPD) benefits. Employer and Insurer denied primary liability.

Employee did physical therapy from February 2020 to June 2020. Employee’s condition appeared to improve, although she complained of knee soreness while squatting and using the stairs.

Employee underwent an independent medical examination (IME) with Dr. Mark Thomas on May 28, 2020. He opined that she experienced a right knee patellar dislocation and that six weeks of physical therapy following the incident should have been enough treatment for her condition to resolve. He opined she would be at maximum medical improvement (MMI) after completing physical therapy.

Employee returned to her own providers after the IME. Dr. Kurt Anderson (at TCO) recommended she undergo arthroscopic surgery for the loose body fragment causing her discomfort. Employee continued to treat, and was evaluated by Dr. Jack Bert at her attorney’s request. He opined that she sustained a right lateral patellar dislocation that he attributed to the January 7, 2020 incident.

Dr. Bert advised Employee to undergo reconstruction surgery and avoid squatting, kneeling, and lifting over 25 pounds. He also told her to use a patellar brace until her surgery. She ultimately underwent arthroscopic surgery with Dr. Anderson on April 15, 2021 to remove the bony fragment in her knee and was off of work until April 30, 2021.

Dr. Thomas completed a supplemental report on July 26, 2021 opining that the arthroscopic surgery was reasonable and necessary, but the proposed reconstruction surgery was not. He agreed with Dr. Anderson regarding the work restrictions ending on April 30, 2021, but also opined she had reached MMI by May 19, 2021.

Judge Kulseth issued his Findings and Order on October 1, 2021. He found that her right knee injury did not arise out of her employment, thus it was not compensable. He relied on the other witnesses’ testimony in making his decision and the initial medical records, which showed that there was no hazard in the bathroom, nor did Employee really slip on water. Employee did not meet her burden of proof. Judge Kulseth also said that while a “twisting or turning mechanism” can be an increased risk that could cause a work injury, those circumstances were not present here. Employee appealed this decision.

Decision & Conclusion

Employee attempted to argue that her injuries were compensable because they fell under the “personal comfort” doctrine. In order to be compensable, Employee’s work injuries must have arisen out of and in the course of her employment. Although Employee’s injuries occurred while Employee was in the course of her employment, she was not able to show that they arose out of her employment. In order for her to have done that, she needed to show that there was a hazard increasing her risk of injury or a neutral condition with circumstances originating on the premises as part of the working environment that increased her risk of injury.

Employee tried to compare her case to another in which an employee injured his knee while twisting his body in an operating room (while working with a patient) due to tight quarters (James v. Duluth Clinic, 79 W.C.D. 39 (W.C.C.A. 2018), summarily aff’d (Minn. Jan. 8, 2019)). That Employee was compensated for his injuries because the Court held that the totality of the circumstances increased the risk of injury and that the causal connection (“arising out of an in the course of employment”) was satisfied. In this case, the Court disagreed and found that the circumstances here (getting up from a seated position) did not create an increased risk of injury. Getting up from a seated position with no other extenuating circumstances did not involve an increased risk of a neutral condition that could cause injury.

Substantial evidence supported Judge Kulseth’s decision, leading the Court to affirm the decision.