NATALIA BALAEVA, Applicant
AURORA HEALTH CARE METRO INC, Employer
SENTRY INSURANCE A MUTUAL CO, Insurer
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.
The findings and order of the administrative law judge are affirmed.
Dated and mailed
February 28, 2012
balaeva . wsd : 101 : 9 ND6 3.35
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The applicant fell at work, sustaining a very serious injury and requiring a craniotomy. She does not recall how or why she fell. This case poses the question of whether the applicant's fall is a noncompensable idiopathic or unexplained fall, or a fall that is payable under the "positional risk" or "zone of danger" analysis.
An idiopathic fall--one that is due to a personal condition not caused or aggravated by employment--is not compensable. Peterson v. Industrial Commission, 269 Wis. 44, 49 (1955). Similarly, a truly "unexplained fall"--one attributable to neither an idiopathic/personal cause nor a cause related to employment--is not compensable even if occurs while a worker is performing services for an employer. Briggs & Stratton v. ILHR Department, 43 Wis. 2d 398, 404 (1969). Rather, in order to show an injury that arises out of employment as is required under Wis. Stat. § 102.03(1)(e), the worker must generally show a fall explained by evidence of a cause related to employment. Id., at 43 Wis. 2d 406.
While acknowledging that courts ordinarily may not presume that unexplained injuries occurring on an employer's premises arise out of employment, the supreme court has observed that those holdings come from cases where the court could not find a zone of special danger, so the positional risk doctrine did not apply. Allied Mfg., Inc., v. ILHR Department, 45 Wis. 2d 563, 566, 568 (1970). If a worker is present at a place where he or she is injured through the conditions of a location constituting a zone of special danger, the positional risk doctrine applies and the injury is compensable. Id., at 45 Wis. 2d 569. The supreme court has held:
The core of the idea is that an accident arises out of the employment when the connection between the employment and the accident is such that the obligation or circumstances of the employment places the employee in the particular place at the particular time when he is injured by a force which is not solely personal to him.
Cutler-Hammer, Inc. v. Industrial Comm., 5 Wis.2d 247, 253, 92 N.W.2d 824 (1958).
Cutler Hammer involved a fall down a flight of three steps, and the court held that the fall occurred in a zone of special danger. However, in that case, the record was clear that the applicant actually fell on the steps. Cutler Hammer, 5 Wis. 2d at 249. Here, the record is nowhere near as certain.
The applicant herself does not exactly remember what happened. She testified that she recalled beginning to return to the conference room, having used a bathroom on a higher level up three steps from the level of the conference room. One inference might be drawn that she fell or tripped while coming down the stairs to return to the conference room.
However, the conference instructor testified that the applicant had complained of gastric distress on the day of the conference and had left the conference at least twice prior to the last time when she fell. The instructor also testified that she stopped instruction whenever the applicant left the room, and a co-attendee at the conference testified that the fall occurred within seconds after the applicant left the conference room the last time. The receptionist who discovered the applicant after the fall testified that she had seen the applicant in the vicinity of a bathroom on the lower floor earlier in the day, which would have required her to walk past the spot where she fell. Based on this testimony--and the videotape exhibit showing that the upper floor bathroom was a considerable distance from the conference room--it is reasonable to infer that the applicant did not use the stairs to go to the upper floor to go to the bathroom just prior to her fall.
Given this record, the commission agrees that the record is insufficient to support the conclusion that the applicant fell or tripped as a result of the stairs themselves and was thus in a zone of danger when the injury happened. For similar reasons, the commission cannot conclude that the effect of her injury was aggravated by striking the corner of a desk in the vicinity of the fall, rather than simply falling to the floor. Professor Larson indicates that
the basic rule, on which there is now general agreement, is that the effects of such a fall are compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle.
1 Larson, Workers' Compensation Law § 9.01 (LexisNexis 2011). The professor distinguishes this situation from the more controversial one where a person falls from standing height to the bare floor or level ground (which in Wisconsin would not be compensable under the idiopathic fall doctrine).
On this point, the commission considered Milwaukee Electric Railway & Light Co. v. Industrial Commission, 247 N.W.2d 841, 843-44 (1933). There, a worker had a heart attack which was not caused by work, and then fell on stairs. The medical evidence established that the heart attack probably would not have killed him, but rather that he died from a skull fracture caused by the increased height from being on the stairs. The court affirmed the commission's finding of a compensable injury.(1)
However, to award compensation on that basis in this case, the commission would have to speculate from the record that the applicant struck her head on the desk, and that the effect of such a fall would have been worse than if she simply had fallen to the carpeted floor. The commission located no medical note that mentions the vicinity of the sharp edge of a desk, or that establishes that the type of the injury the applicant had was more likely to have been caused by hitting a corner of a desk than by landing on the floor.
cc:
Attorney Thomas Domer
Attorney Daniel Zitzer
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