Lindsey Kanable v. Service Master of Rochester, and SECURA Ins. Cos., WCCA, Jan. 21, 2013;
No. WC12-5466.
This case involves a very interesting fact patter in which the Employee was working in a typical
office setting near the frontage road along Trunk Highway 52, when a runaway tractor-trailer
semi went off of Highway 52 at 50 to 60 miles per hour, traveled between the highway and
the building, and struck the Employee’s building and went through the entire building, and
then crashed into some forest and rocks, where the truck caught fire and the truck driver dies.
The Employee, Ms. Kanable, was injured when she was trapped from collapsing debris of the
building and having to be extricated from that debris. She sustained multiple injuries, as well
as had ongoing headaches, dizziness, problems with concentration, and post-traumatic stress
disorder.
The Employer and Insurer denied pursuant to § 176.021, subd. 1, indicating that the Employee’s
injury did not arise out of and in the course and scope of employment, because the Employee
was not at an “increased risk” then the general public. Generally, the increased risk test
addresses “arising out of” cases and this requires a causal connection between the employment
activities and the employee’s source of injury.
The compensation judge held that the employee was at an “increased risk” because she worked
in an office building that was precariously situated to the frontage road of Highway 52, there was
no natural or artificial barriers between that fast moving highway and the employer’s buildings,
and there was an unimpeded slope and a fairly shallow angle between that highway area and the
building.
The employer and insurer believed that the situation of the building was nothing more than
typical of many office buildings that are close to highways, and therefore, there is no increased
risk. The compensation judge instead found that this building was situated in a spot in which the
employee was placed at a greater risk of injury, than the public in general.
The employer and insurer argued that this was simply a freak accident, similar to a lightning
strike, or being struck by a straight bullet.
The Court of Appeals upheld the compensation judge on the substantial evidence standard,
and indicated that this risk, no matter what the characteristic of it, did make the employee
substantially greater at risk due to her employment. The WCCA found that the employer and the
compensation judge did do a sufficient job of lying out the reasons why this building placed the
employee at an increased risk, by indicating that there were no natural barriers, shallow angle to
the highway, and that the precarious path did make this risk substantially greater to injury.
Further, the WCCA rejected the other reasons for denying the compensability of the injury,
including one under public policy and other tests that have been set forth in prior case law
because the employer and insurer did agree that the increased risk test was the appropriate test
for this case.