ARISING OUT OF AND IN THE COURSE OF— Kubis v. Community Memorial Hospital Association (W.C.C.A. 02/05/16)

Employee was a registered nurse.  At the time of the injury, the employee was in report giving the oncoming shift nurse’s information regarding patients.

There was a code called which the employee rushed to.  It turned out to be a “mock code,” which required the employee’s response as if in an emergency situation. 

After the code was over, the employee chose to take the stairs to her work station, rather than the elevator.  She “rushed up” the stairs to return to the nursing station as soon as possible to complete report when she fell injuring her shoulder.

There is no evidence that there was debris or moisture on the steps.  The lighting was adequate. Primary liability was denied based upon a lack of increased risk per Dykhoff. 

At Hearing, the compensation judge found the employee was not a credible witness when she stated she felt pressured to rush up the stairs because of hospital policy regarding overtime.  The judge found that that there was no arising out of and denied the claim.

The W.C.C.A. reversed the findings of the compensation judge and found the injury compensable.

The W.C.C.A. noted that there was no contention of defective stairs.  The issue was whether the employee’s employment increased her risk of injury.  There was a finding that the employee was “rushing up the stairs” because she felt pressure to do so because of hospital policy discouraging overtime.  The W.C.C.A. professed to defer to the compensation judge’s credibility determination.  However, they noted the employee claimed that she was fatigued due to her work schedule and had heavy legs and secondly that she felt she was rushed to complete her job and was injured as a result.

The court noted that when fatigue arises from the employee’s work activities resulting in injury, fatigue meets the criteria of increased risk to satisfy the arising out of standard.  Likewise, hurrying or rushing on the job is found to be “arising out of” if it results in injury to the employee. The evidence was uncontroverted that the employee was suffering from fatigue and hurrying.

This case has been appealed to the Minnesota Supreme Court.