Is wearing shoes with two inch heels sufficient reason to disqualify an employee from receiving workers’ compensation benefits? According to dissenting justices Page and Stras, that is the only reasonable interpretation for the majority’s recent opinion in Dykhoff v. Xcel Energy.
Toni Dykhoff, an electrician, was required to attend training at Xcel’s office in downtown Minneapolis. Instructed to wear “dress clothes”, she wore shoes with two inch wooden heels. While walking into the training room, she fell and dislocated her knee.
Ms. Dykhoff filed a workers’ compensation claim petition, but the compensation judge denied the claim because she could not show that 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. In fact, the judge found that “an equally plausible explanation” for her fall was her high-heeled shoes.
A majority of the Supreme Court agreed with the compensation judge. Under the workers’ compensation statute, an employer is liable for an employee’s injury “arising out of and in the course of employment without regard to the question of negligence.” The parties stipulated that Dykhoff had met the “in the course of” requirement because her injury occurred “within the time and space boundaries” of her employment. Thus, the only question before the court was whether she also met the “arising out of” element.
The fault line between the four person majority (led by Chief Justice Gildea) and the three dissenters (Page, Stras and Lillehaug) was whether to apply the “increased risk doctrine” or the “positional risk doctrine”. The majority opted for the increased risk doctrine, which requires the employee to show that she was exposed to a hazard that originated on the premises as part of the working environment, or “peculiarly exposes the employee to an external hazard whereby he is subjected to a different and a greater risk than if he had been pursuing his ordinary personal affairs.” Here, the majority ruled, Dykhoff did not prove that her workplace exposed her to a greater risk of injury than what she would face in her everyday life. “Without any proof that something about the floor [outside the training room] increased her risk of injury, we hold that Dykhoff did not meet her burden to prove that her injury arose out of her employment.”
By contrast, Justices Page and Stras argued that the court had previously awarded benefits without regard to any showing that the employment subjected the employee to an increased risk of injury, including cases where the injury occurred while the employee was on break. “The only reasonable explanation I can glean for this contradiction is that the court deems Dykhoff an undeserving plaintiff because she wore shoes with two-inch heels to work the day she was injured. Such considerations have no place in the no-fault workers’ compensation system that Minnesota has adopted.” Instead, Justice Page urged application of the more expansive “personal risk doctrine”, which would award benefits if the “conditions and obligations of employment” placed the employee in the position where she was injured. “The court’s narrow interpretation of the ‘arising out of’ requirement [of the statute] cannot be squared with the underlying purposes of the Act.”
The newest addition to the Supreme Court, Justice Lillehaug, also dissented, but he did not go so far as Page and Stras. Rather than applying the personal risk doctrine, Lillehaug concluded that Dykhoff had met the “arising out of” requirement because “the undisputed facts establish as a matter of law the requisite causal connection between Dykhoff’s employment and her injury.” In his mind, it did not matter whether the fall was caused by the condition of Xcel’s floor, the size of Dykhoff’s heels, or by the interaction between the two; by any measure there was a causal connection between her injury and her employment.
So, what are we to make of this decision? It will certainly preclude some employees from obtaining workers’ compensation benefits where there is no “increased risk” or “special hazard” in the workplace. Will it result in increased tort litigation, as the dissent warns? Will it spur the legislature to adopt the “positional risk doctrine”, as suggested by Justice Lillehaug? And, most importantly, does it sound the death knell for two-inch wooden heels?