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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Stairway to Hell: How the Supreme Court is upsetting the equilibrium in Minnesota’s workers’ comp system

Minnesota’s workers’ compensation system has been around for over 100 years. The essence of the “grand bargain” that underpins our system is found in the introductory provision to our workers’ compensation act:

The workers’ compensation system in Minnesota is based on a mutual renunciation of common law rights and defenses by employers and employees alike. Employees’ rights to sue for damages over and above medical and health care benefits and wage loss benefits are to a certain degree limited by the provisions of this chapter, and employers’ rights to raise common law defenses such as lack of negligence, contributory negligence on the part of the employee… are curtailed as well.1

A brief history of workers’ compensation in Minnesota

Like most states, Minnesota enjoyed a relatively stable workers’ compensation system during its first 60 years. That’s not to say it was fair, but injured workers received a fixed schedule of benefits, employers were generally satisfied with the cost, and insurers made a predictable profit.

That all changed in the 1970s. The passage of the Occupational Safety and Health Act in 1970 not only created the Occupational Safety and Health Administration (OSHA) but also authorized a National Commission on State Workmen’s Compensation Laws to study the adequacy of state programs to protect workers and distribute benefits.2 In 1972 the commission issued its report, citing glaring weaknesses in state systems and making over 80 recommendations for improvements, nineteen of which were deemed “essential.”3 

Fearing federalization of the workers’ comp system, many states expanded benefits. Beginning in 1975, Minnesota passed a series of laws increasing benefits and adopting many of the commission’s recommendations. Minnesota’s insurance rates were among the highest in the nation, and workers’ compensation became a highly contentious issue at the Legislature.4 

Between 1979 and 1983, the state Legislature tried to remedy this situation by enacting some structural reforms. These included creation of both the Workers’ Compensation Reinsurance Association, a nonprofit, exclusive provider of reinsurance (protection against catastrophic losses) and the Workers’ Compensation Court of Appeals (WCCA), an independent agency of the executive branch with exclusive authority to hear appeals of cases decided by compensation judges.5

These changes improved the system but did little to stem the escalation of loss costs and heated battles at the Legislature. In 1992 and 1995 Minnesota’s elected officials, a Republican governor (Arne Carlson) and DFL-controlled Legislature, did something unheard of today—they worked together to pass reforms that, among other things, repealed the costly second injury fund and supplementary benefit programs, capped the duration of wage-loss benefits, and created a framework for medical fee schedules and treatment guidelines.6

Perhaps the most important of all of the reforms was the creation of the Workers’ Compensation Advisory Council (WCAC) in 1992.7 The WCAC consists of 12 members (six representing organized labor and six representing Minnesota businesses), with the commissioner of the Minnesota Department of Labor and Industry (DLI) serving as the nonvoting chair. The WCAC submits recommendations for proposed changes to the workers’ comp law to the appropriate legislative committee. Any recommendation must be supported by a majority of both business and labor members. Since the late 1990s this vetting mechanism has worked extraordinarily well to reduce acrimony and to ensure that any proposed legislation that becomes law is fair, balanced, and improves the system. 

According to the latest Workers’ Compensation System Report published by DLI, there has been a sustained downward trend in the number of claims and in overall system costs since 1997.8 Moreover, both the 2016 Premium Rate Ranking Summary and the Workers’ Compensation Research Institute’s Compscope™ Benchmarks, 18th Edition, place Minnesota in the middle of states in terms of premium rates and benefit costs per claim—just where we want to be.9 WCRI studies also show that Minnesota ranks high relative to peer states in both worker satisfaction and shortest duration of disability.10

The bottom line: Minnesota’s workers’ compensation system isn’t perfect but it’s made great strides since the dark days of the 1970s and ‘80s. Unfortunately, in recent years our highest court has contributed friction to the system—friction that has created more heat than light. 

After the major reforms of the 1990s, the Minnesota Supreme Court didn’t show much interest in hearing workers’ compensation cases, summarily affirming (without opinion) the vast majority of appeals from the WCCA. That’s certainly not a bad thing—the WCCA has special expertise in deciding cases under Chapter 176. Moreover, the Supreme Court did issue opinions on several important issues, including the constitutionality of statutory limits on attorney fees and the right of undocumented workers to receive benefits.11

The Dykhoff case and Supreme Court activism

Nevertheless, the high court was hearing only one or two cases a year until December 2013, when a 4-3 decision in the case of Dykhoff v. Xcel Energy changed everything.12 

In the avalanche of litigation that has followed Dykhoff, employers, insurers, attorneys, and judges have wrestled with the meaning of the following excerpted language from Minn. Stat. 176.021, subd. 1:

Every employer is… liable to pay compensation in every case of personal injury or death of an employee arising out of and in the course of employment without regard to the question of negligence. (Emphasis added)

Toni Dykhoff was a 47-year old electrician who usually wore jeans to work at Xcel Energy’s Maple Grove Service Center. However, her supervisor had advised her to wear “dress clothes” when attending meetings at Xcel’s main office in downtown Minneapolis. On the day of the incident, she arrived at a training session in Minneapolis wearing a dress shirt, dress pants, and shoes with two-inch wooden heels. While walking in a corridor toward a conference room at a “normal pace,” she slipped, fell and hurt her left knee, dislocating the patella. 

Ms. Dykhoff admitted that she didn’t trip over anything and that the floor was dry, though she did say she thought it appeared slippery because it was “shiny.” She filed a claim for workers’ compensation benefits, which Xcel denied. The only issue at the hearing before a compensation judge was whether her left knee injury “arose out of” her work activity.

Xcel offered detailed evidence about the condition of the floor, including documentation of post-accident testing performed by a third party which showed that the floor’s “coefficient of friction” (its slipperiness) met OSHA specifications. 

The compensation judge denied Dykhoff’s claim. She acknowledged that the claimant’s two-inch heels may have been a factor, but because the decision to wear them was “personal” and because the floor was clean and dry, she found that Dykhoff failed to prove her injury was caused by an increased risk, a risk related to her work activity or environment that heightened the likelihood of an injury beyond the level of risk experienced by the general public. 

I stress this phrase because in Dykhoff and in subsequent cases applying the increased risk test, the “test”—that is, comparing the risk of a work activity to risks encountered by the employee in her everyday life or by the general public—is often more confusing than illuminating, especially in cases where the source or root cause of the injury is neither unequivocally personal (sometimes called idiopathic) nor clearly work-related. Professor Larson considers these unexplained risks to be “neutral” and recommends application of the “positional risk” test (as opposed to the increased risk test) in such cases. Under this test, an injury is compensable if the job put the employee in a position to be injured even if the same incident may have occurred in the employee’s everyday life.13 

The WCCA reversed Dykhoff on appeal, citing extensively from its decision in Bohlin v. St. Louis County/Nopeming Nursing Home, a case that was summarily affirmed by the Supreme Court in 2001.14 

Ms. Bohlin twisted her back while getting out of her car in the employer’s parking lot. The WCCA analyzed the facts under both the increased risk and positional risk tests and then devised a new test, the “work-connection” test, under which the court balances both the “arising out of” and “in the course of” elements to decide whether there is a sufficient causal connection between the injury and the job to award benefits.

In deciding Dykhoff, the WCCA concluded the strength of the “in the course of” element (the employee was attending a training session at the home office) outweighed any deficiencies in the “arising out of” element (her fall was “unexplained” on a clean, dry floor) and, therefore, ruled Dykhoff’s injury was compensable. 

During the 12 years between the Bohlin summary affirmance and the Supreme Court’s Dykhoff decision, the high court never repudiated this balancing test. But in the Court’s majority opinion reversing the WCCA, Chief Justice Gildea emphatically rejected it, stressing that the employee has the burden of proving both the “arising out of” and the “in the course of” elements and that the balancing test renders one of those elements “superfluous.”15

The Supreme Court agreed with the compensation judge that Ms. Dykhoff failed to prove Xcel exposed her to a condition that placed her in an increased risk of injury “beyond what she would experience in her non-work life.”

Justices Page and Lillehaug each issued dissenting opinions, joined by Justice Stras.

Justice’s Page’s dissent is compelling. He cites several prior cases where the Court had awarded benefits to an employee without any proof that the job exposed the employee to an increased risk of injury.16 

How can we, on the one hand, award benefits to employees who are injured off of the work premises or during a work break without regard to an increased risk of injury and, on the other hand, deny benefits to Dykhoff—an employee who was injured within her employer’s general office during work hours while engaged in work duties she had been specifically instructed to perform? I see no justification for placing an additional burden of proof on employees when they are injured in circumstances most connected to their employment.17

Both Justice Page and Justice Lillehaug advocate for adoption of the positional risk test, for awarding benefits if the employee can show the injury would not have occurred but for the “conditions and obligations” of the job. 

Justice Page predicted the Court’s decision would “upset the apple cart that is our delicately balanced workers’ compensation system” and overturn nearly 96 years of precedent in a way that would burden employees, employers, and the workers’ compensation system as a whole.18 His impassioned dissent may turn out to be prophetic.

Since Dykhoff, the Supreme Court has issued over 20 opinions in workers’ comp cases, 10 in 2017 alone. More than half of these decisions have reversed the WCCA. Why has the Court taken greater interest in workers’ comp cases? There is no question the Dykhoff edict has something to do with it.

No easy stairway cases

Prior to Dykhoff, my company considered injuries occurring on stairs at work to be compensable, period. In neighboring Wisconsin and Iowa, the case law is pretty clear—injuries resulting from falls on stairways in the workplace are covered without regard to the presence of handrails, the steepness of the stairs, the existence of treads, etc.19

In Kainz, a case decided shortly after Dykhoff, a licensed practical nurse broke her ankle after twisting it on her employer’s staircase. Applying the same balancing test it used in Dykhoff, the WCCA agreed with the compensation judge that Ms. Kainz was entitled to benefits. The Supreme Court stayed the employer’s appeal and then remanded the case to the WCCA for further consideration in light of its Dykhoff holding.

On remand, the WCCA once again affirmed the comp judge’s determination that Kainz’s injury was compensable, citing two reasons—the steps were “kind of steep” and there were no handrails on the part of the stairway where Kainz twisted her ankle. In a peremptory order the Supreme Court reversed, ruling that the WCCA’s decision was “manifestly contrary to the evidence.”20 

The Supreme Court reviewed photographic evidence which it claimed “conclusively” showed that the handrails extended all the way down the stairs. The Court also pointed out that the compensation judge never made a finding with respect to the “steepness” of the stairs. Because the WCCA couldn’t decide the case correctly, the Court remanded it to the compensation judge to give him an opportunity to get it right.

Stairways didn’t get any easier to navigate in the next significant case, Kubis v. Community Memorial Hospital.21 Kristel Kubis, a 54-year-old registered nurse with a history of knee problems, fell and injured her shoulder while rushing up a flight of stairs near the end of her shift. Kubis’s claim for workers’ compensation benefits was denied by her employer, Community Memorial Hospital (CMH). 

In Kubis, similar to Dykhoff, the employer submitted expert testimony and photographs to show there were handrails on both sides of the stairwell and there was nothing “hazardous” about the staircase. Kubis testified she took the stairs (instead of the elevator) to get to the second floor because they were faster. She claimed she was in a hurry because she didn’t want to incur overtime. CMH disagreed with this assertion. 

After hearing testimony, the compensation judge found her explanation for hurrying up the stairs, a fear of overtime, lacked credibility. He determined the workplace did not expose Kubis to an “increased risk” of injury simply because she was climbing stairs and denied her claim for benefits. 

The WCCA reversed. It didn’t disturb the judge’s finding regarding overtime; instead, the WCCA found a different work-related reason to explain Kubis’s need to rush up the stairs, a reason that wasn’t addressed by the comp judge: 

Where an employee who normally avoids the stairs due to prior knee problems, takes them because she feels rushed to report to the next shift, and in the process runs up the stairs and falls, the arising out of element is established.22

The Supreme Court wasn’t impressed. In another 4-3 reversal, the Court didn’t even discuss the increased risk test, holding that the WCCA exceeded its authority (again) by rejecting the findings of the compensation judge, which the Court reinstated.23 

In a dissenting opinion joined by Justices Chutich and McKeig, Justice Lillehaug countered that the majority misapplied the standard of review and didn’t give proper deference to the WCCA. He referred to the Kirchner decision and the cases cited therein for the proposition that an employee with a pre-existing leg condition who is injured while rushing up stairs need not prove that the stairway is especially hazardous.24 He argued there was a sufficient causal connection between Kubis’s employment and her injury without any additional evidence.

Lillehaug acknowledged that Kubis is “another example of the difficulties the workers’ compensation law, compensation judges, the WCCA, and we are having interpreting and applying the ‘increased risk’ test.”25 Noting that the majority of states that have dealt with these issues have applied the positional risk test, Lillehaug concluded: “When the issue is presented squarely and briefed, we should welcome the opportunity to consider whether Minnesota should join the states that have adopted the positional-risk test.”26

The WCCA pushes back

Like Justice Lillehaug, the WCCA clearly disagrees with the Supreme Court’s majority in these stairway cases and its decisions in the Roller-Dick and Lein cases reflect both frustration and a new approach.27 

Laurie Roller-Dick was an account specialist for CentraCare Health System. She worked in CentraCare’s administrative offices on the second floor of one of its buildings. At the end of a workday, she took the stairs from the second floor to the first in order to exit the building and enter an adjacent parking lot. She slipped on a step and fell, fracturing her ankle. The stairway had hand railings on both sides, which the employee didn’t use. Her purse was hanging from her elbow while she carried a plant with both hands. During her fall, the employee dropped the plant and grabbed one of the railings. She claimed she fell when the rubber on the bottom of her shoe stuck to a rubber material covering the stairs.

CentraCare denied the employee’s claim for benefits, alleging that her injury did not “arise out of” her work activity. At the hearing, the employer submitted evidence showing the stairs were dry and in compliance with building codes and OSHA standards. The judge denied Ms. Roller-Dick’s claim, agreeing with the employer that the accident did not pass the increased risk test. 

The WCCA did not agree. Judge Stofferahn’s opinion acknowledged that under Dykhoff there must be an “increased risk” of injury as the result of employment, but reframed the inquiry from (i) whether the risk of injury on the employer’s stairs was greater than she would face in everyday life, to (ii) whether she encountered an increased risk of injury because of a hazard which originated on the employer’s premises—namely, the stairs. According to the WCCA, if using stairs were a neutral risk, “stairways would not have handrails.”28

As noted above, comparing the risk of a work activity to the risks encountered “in everyday life” has not proven to be instructive or apposite. In another recent Supreme Court decision invoking the Dykhoff holding, Hohlt v. University of Minnesota,29 a University employee slipped on an icy sidewalk and injured herself while walking between a university building, where she’d been working as a painter, and a university parking ramp where she had parked her car. In this case, another split decision, the Supreme Court upheld the WCCA’s decision to reverse the compensation judge and award benefits. The university had argued that the icy sidewalk did not constitute an “increased risk” because all Minnesotans have to deal with icy sidewalks. The Court didn’t buy that argument. An icy walkway is not a neutral risk and neither is a stairway.

According to the WCCA’s opinion in Roller-Dick, the stairway alone increased the risk of injury, as did the icy sidewalk in Holht, without additional evidence of some flaw or feature of the stairway that “further increased the risk.” Like Justice Lillehaug’s dissent in Kubis, the WCCA’s opinion cites Kirchner, another case where an employee was injured while walking down stairs without using an available handrail.

While it may be argued that the employee [Roller-Dick] should have taken the elevator or should have taken some other action to minimize her risk, it may also be argued that Mr. Kirchner could have waited to descend the stairs until a handrail became available. These arguments, however, amount to contributory negligence and are prohibited by statute.30

The WCCA reversed the comp judge’s decision, ruling the stairs alone increased her risk, and therefore, her injury “arose out of” her employment.

This new approach to stairway cases was determinative in a WCCA appeal a few weeks later. In Lein v. Eventide, the employee was injured when she fell while descending a flight of stairs on the employer’s premises. Both parties hired experts and submitted extensive evidence about the condition of the stairway. The compensation judge found no defect in the stairs and denied benefits. The WCCA reversed. The Supreme Court then remanded the case to the WCCA for reconsideration in light of Kubis. On remand, the WCCA pushed back.

Since the Minnesota Supreme Court decision in Dykhoff was issued in 2013, a number of cases involving stairways have been considered by this court and by the supreme court. In these cases, the focus has been a factual inquiry regarding the condition of the stairs and whether a defect was present, or some other explanation of why the employee fell that could be linked to the circumstances of her employment. This factual inquiry, we conclude, distracts from the ultimate issue. The use of stairs poses an increased risk, regardless of elements such as rushing, the presence of handrails, or slipperiness, as was alleged in the case before us. Prior stairway cases have, on the one hand, cited to the statute’s prohibition of the consideration of negligence, while on the other hand, applied a negligence standard and required the employee to prove wrongdoing on the part of the employer. The approach taken in these prior stairway cases has contributed to the confusion for both employees and employers.31 (Citations omitted)

In other words, the WCCA is concerned with preserving the balance, the “grand bargain” that created and sustains our workers’ comp system.32

Both Roller-Dick and Lein have been appealed and argued before the Minnesota Supreme Court. Will the Court agree with the WCCA’s new definitive approach on stairway cases? Will it adopt a positional risk test for all neutral risk cases? Or will the Court reverse the WCCA and reinstate the denial of benefits and the stairway to hell?

We should know the answers to these questions by the end of this year.

 

BOB LUND  has served as president and chief executive officer of SFM Mutual Insurance Company (the workers’ compensation insurer with the largest market share in Minnesota) since May 2007.  He joined SFM in 1998 and was formerly vice president and general counsel.  He previously held senior executive and general counsel positions at three Twin Cities-based financial services companies and was engaged in private law practice.

 

Notes

1 Minn. Stat. §176.001 (2016) 

2 Public Law 91-596 (1970), 29 U.S.C. §651 et seq.

3 The full report can be found at www.workerscompresources.com 

4 For an in-depth discussion of the history of workers’ compensation in Minnesota, see www.mwcia.org/History 

5 See Minn. Stat. §79.34 (WCRA) and Minn. Stat. §175A.01 (WCCA) 

6 The 1992 reforms were enacted under Laws 1992, chapter 510; the 1995 reforms were enacted under Laws 1995, chapter 231.

7 The Council was created under the 1992 reforms and can be found at Minn. Stat. §175A.07.

8 Minnesota Department of Labor and Industry, Minnesota Workers’ Compensation System Report, 2016 is available at www.dli.mn.gov/RS/WcSystemReport.asp.

9 To access the entire 2016 Oregon Workers’ Compensation Premium Ranking Report, go to www.dcbs.oregon.gov/reports. A complete list of WCRI studies is available at, and can be ordered through, the Institute’s website at www.wcrinet.org. 

10 Workers’ Compensation Research Institute, Comparing Outcomes for Injured Workers in Minnesota (May 2016) WC-16-32.

11 Irwin v. Surdyk’s Liquor, 599 N.W.2d 132 (Minn. 1999) (constitutionality of limits on attorney fees) and Correa v. Waymouth Farms, 664 N.W.2d 324 (Minn. 2003) (rights of undocumented workers to receive workers’ comp benefits).

12 Dykhoff v. Xcel Energy, 840 N.W.2d 821 (Minn. 2013).

13 See 1 A. Larson & Lex K. Larson, Larson’s Workers’ Compensation Law §3.05 and §7.01 et seq. (Matthew Bender Edition 2015).

14 61 W.C.D. 69 (W.C.C.A. 2000), summarily aff’d (Minn. 2001)

15 Dykhoff, 840 N.W.2d at 830-831.

16 See, e.g., Bookman v. Lyle Culvert & Road Equipment, 153 Minn. 479, 190 N.W. 984 (1922); Locke v. County of Steele, 223 Minn. 464, 27 N.W.2d 285 (1947); and Sweet v. Kolosky, 259 Minn. 253, 106 N.W. 2d 908 (1960).

17 Dykhoff, 840 N.W.2d at 833. 

18 Id. at 834.

19 Cutler-Hammer, Inc. v. Industrial Commission, 5 Wis.2d 247, 92 N.W.2d 824 (1958); Lakeside Casino v. Blue, 743 N.W.2d 169 (Iowa 2007). 

20 Arrowhead Senior Living v. Kainz, 860 N.W.2d 379 (Minn. 2015).

21 897 N.W.2d 254 (Minn. 2017)

22 Kubis v. Community Memorial Hosp. Ass’n, No. WC15-5842, 2016 WL 845830, at 5 (W.C.C.A. Feb. 5, 2016) 

23 Kubis, 897 N.W.2d at 263.

24 Id. at 265-266. In Kirchner v. County of Anoka, 339 N.W.2d 908 (MInn. 1983), a county employee fell on some steps at work when the public use of the only handrail kept him from using it. The Court held there was a sufficient causal connection between employment and the injury to meet the “arising out of” element. It is noteworthy that one of the cases the Court cites in support of its decision is Miller v. Goodhue-Rice-Wabasha Citizens Action Council, Inc., 293 Minn. 454, 197 N.W.2d 424 (1972), where a physically handicapped employee fell when her leg “locked” as she was climbing stairs at her workplace and the Court ruled that her injury “arose out of” her employment even though there was no other evidence of a “hazardous” condition. 

25 Id. at 266.

26 Id. at 267. 

27 Roller-Dick v. CentraCare Health Syst., No. WC17-6051 (W.C.C.A. October 19, 2017); Lein v. Eventide, No. WC17-6101 (W.C.C.A. December 29, 2017). 

28 Roller-Dick, No. WC17-6051 at 4.

29 897 N.W.2d 777 (Minn. 2017)

30 Roller-Dick, No. WC17-6051 at 4.

31 Lein, No. WC17-6101 at 

32 Whether state workers’ compensation systems are failing to sustain the worker side of the “grand bargain” has been the subject of several recent articles, including the United States Department of Labor’s 2016 report: Does the Workers’ Compensation System Fulfill its Obligations to Injured Workers? www.dol.gov/asp/WorkersCompensationSystem; see also, Berkes, Howard, NPR News Investigations and Grabell, Michael, Pro Publica, Special Series, Insult to Injury: America’s Vanishing Worker Protections, www.npr.org/series/394891172/insult-to-injury-americas-vanishing-worker-protections. 

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