Minnesota Supreme Court Adopts “Increased Risk” Test for Determining Causation in Workers’ Compensation Cases

The Decision: Dykhoff v. Xcel Energy

On December 26, 2013, the Minnesota Supreme Court issued a 4-3 decision in Dykhoff v. Xcel Energy, stating the employee bears the burden that her employment exposed her to an “increased risk” of injury.  To prove her injury “arose out of” her employment, she must prove her job exposed her to a hazard which originated on the premises as part of the working environment or peculiarly exposed her to an external hazard subjecting her to a different and a greater risk than if she had been pursuing her ordinary personal affairs. 

The trial court concluded the employee failed to prove her employment exposed her to a condition that placed her at an increased risk of injury beyond what she would experience in her non-work life.  The Workers’ Compensation Court of Appeals (WCCA) reversed the trial court and considered three tests to determine whether the employee’s injury arose out of her employment: the increased risk test, the positional risk test, and the work-connection balancing test derived from its decision in Bohlin.  The WCCA applied the Bohlin work-connection test and found the injury compensable.  The Supreme Court reversed the WCCA and reinstated the trial court’s decision.

The Impact

By a narrow majority, the Minnesota Supreme Court in Dykhoff signaled a preference for the “increased risk” test when evaluating whether an injury “arose out of” employment.  This test makes it more difficult for employees to prove their injuries “arose out of” their employment. We anticipate that since the labor-friendly DFL party controls the Minnesota legislature and we have a DFL governor, efforts will be made in 2014 to legislatively reverse the Dykhoff decision and to “clarify” Minnesota law on this issue.


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