Josephine M. Hohlt v. University of Minnesota, Self-Insured, No. WC15-5821 (February 3, 2016)
The Employee sustained an injury to her right femur necessitating a total arthroplasty to the right hip. The injury was a result of the Employee walking to her vehicle on the campus of the University of Minnesota moments after punching out for the day. The ramp her vehicle was parked in was owned and operated by the University of Minnesota. As she got to the ramp, on the sidewalk outside of the ramp, which was maintained by the University of Minnesota, she slipped on ice falling and breaking her femur.
The primary liability for the injury was denied under Dykhoff indicating that the injury did not arise out of her employment, and, further, that there was no increased risk beyond that to the general public which would have given rise to a work related injury.
A Compensation Judge found in favor of the Self-Insured Employer and indicated that while the injury did not arise out of her employment it did occur in the scope of her employment, but the injury was denied.
The Employee appealed the determination of the arising out of aspect and the Self-Insured Employer cross-appealed the in the course of determination.
The Workers’ Compensation Court of Appeals analyzed this case under Dykhoff as well as Foley and indicated that the Compensation Judge used an incorrect analysis of the arising out of aspect. The WCCA found that the Compensation Judge was using to the “special risk” test and indicated that such a special risk is an inappropriate determining factor of the arising out of standard. If one were to argue that it is only a special risk that applies as a result of the employment relationship, then this would effectively prohibit most if not all workers’ compensation cases in Minnesota. The Court basically indicated that the risk to the Employee arose out of her employment because were it not for her job she would not have had to traverse that sidewalk. Even if the sidewalk presents a risk to the public, the Employee’s presence on that sidewalk on that day was due to her employment and therefore it arose out of her employment.
With regard to the cross-appealed issue of occurring in the course of the employment, the Court indicated that the Employee had not delayed her return to her vehicle after punching out and as such was given a reasonable period of time beyond working hours performing activities reasonably incidental to her employment and therefore it clearly occurred in the course of her employment.
Interestingly, Judge Milun wrote a concurring opinion which provides an alternative analysis for the finding of the WCCA. Essentially Judge Milun indicates that, due to exclusive remedy provisions, situations like this are appropriately determined to be work injuries as otherwise the employer could be liable in tort in a situation like this if it is not determined to be a work injury. The general public has a remedy in tort and therefore in order for the employee to have recourse it make sense that it would be a work injury.
This case further muddies the waters of Dykhoff and the determination of what factors will be used or considered when determining whether an injury arose out of the work relationship.