STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BETTY A WALTERS, Applicant

UTECHT BAKERIES LLC, Employer

HARTFORD UNDERWRITERS INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2006-016654


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed May 13, 2008
waltebe . wsd : 175 : 8 ND § 3.34

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

The applicant asserts in her petition for commission review the administrative law judge erred in determining the injuries she suffered at work on May 25, 2004, did not arise out of her employment so as to make it a worker's compensation liability upon the employer. The applicant asserts in her petition for commission review that although she understandably did not identify what caused her foot to stick to the floor, the reasonable inference in a bakery would be that a substance caused her foot to stick. The applicant points to the case of Briggs & Stratton Corp. v. DILHR, 43 Wis. 2d 398 (1969) where the applicant testified that she fell because her foot stopped. The applicant in the Briggs & Stratton case could not identify the specific object which caused her to fall. The Wisconsin Supreme Court noted in the Briggs & Stratton case that it is long settled in Wisconsin that a truly unexplained fall is not compensable. The court held that the fall must be explained by evidence of a cause related to the employment. Briggs & Stratton v. DILHR, 43 Wis. 2d 406. The court found in Briggs and Stratton the employee knew how she fell, where she fell, and she knew what caused her fall, although she was not able to identify the precise object that stopped her foot. The court noted in Briggs & Stratton the surface where the applicant fell contained chips of aluminum, which could stick in the hard surface and cause a foot to stop. The Wisconsin Supreme Court held in Briggs & Stratton the evidence was sufficient to establish the applicant's burden of proof that the fall was not idiopathic, and there was evidence of a separate work-related cause.

The current case involves a situation of an unexplained fall. The evidence did not establish the applicant fell due to her altered gait due to her previous disabilities. There is nothing in the record to indicate that the applicant had a history of seizures or fainting, and the evidence did not indicate the applicant's altered gait caused her to fall. In our current case, the applicant fell while walking on a clean, flat, dry floor with no foreign substances visible. The applicant admitted in her testimony that she looked at the floor and it was clear of any foreign substances and clean. There was no evidence presented that the floor had recently been waxed or was wet. The commission does not find any evidence in the record to establish a work-related cause for the applicant's fall as required under Briggs & Stratton v. DILHR.

Our current case is very similar to Durkee v. Marathon County (Comm. Dec. April 16, 1992.). In Durkee, the worker fell in the employer's courthouse while walking down the hallway. The applicant testified she fell because the floor was slippery in the spot where she was injured. Durkee v. Marathon County, In Durkee, the evidence indicated the floor was clean, flat and dry at the spot where she fell. The commission noted there was no evidence of any special condition or circumstance which made the floor slippery, and the floor was not littered with any material, and was not wet. The commission found the worker did not establish a work-related cause for her fall and dismissed the claim in the Durkee case.

Unlike the Briggs & Stratton case, there was no evidence of any material on the floor, which would have caused the applicant's foot to stick leading to her fall on May 25, 2004. The administrative law judge appropriately noted that in the case of a fall it must be connected to some hazard or zone of danger. Given the fact that the applicant fell while walking on a clean, flat, dry floor at work with no visible evidence of a work-related cause for the fall, the administrative law judge appropriately determined that the applicant sustained significant injuries while at work on May 25, 2004, and the accident causing those injuries do not arise out of the employment so as to make it a worker's compensation liability upon the employer. Therefore, the applicant's application for benefits was appropriately dismissed.

cc: Attorney James P. Lonsdorf
Attorney Gary S. Stanislawski


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