COLEEN J DENAMUR, Applicant

LARRYS MARKETS INC, Employer

WAUSAU BUSINESS INS 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, except that it makes the following modification:

Delete the first and sixth paragraphs on the third page of the ALJ's decision.

The decision of the administrative law judge is affirmed as modified above. The department reserves jurisdiction for further claims.

Dated and mailed
July 30, 2012
denamco : 150 : 9 ND6 3.35

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

Respondent petitioned the ALJ's decision arguing that the applicant's injuries did not arise out of the employment within the meaning of Wis. Stat. § 102.03(1)(e).

In terms of analyzing this issue, the most logical first step is to determine whether the fall was idiopathic? 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).

The respondent argued that the applicant's choice of footwear was the reason for the fall and supported its claim alleging that the applicant initially explained that she tripped over her own feet. The applicant denied this, explaining that her foot stuck and that she may have lost her balance as she was turning toward the time clock and attempting to avoid the bag rack area at the end of her checkout. With respect to her footwear choice, there is no evidence that her choice was contrary to the employer's policies and there is also no evidence that the shoes were a problem in the past for the applicant. In addition, there is no evidence of solely personal medical issues which could have resulted in the fall. Finally, the proximity of the fall to the bag rack supports the applicant's testimony. Like the ALJ, the commission credits the applicant and finds that her fall was not solely idiopathic. See Maglio v. Transportation Insurance, WC Claim No. 2001-053666 (LIRC March 24, 2005)(fall found to arise out of the employment where the applicant consistently described the fall as having been caused by her shoe sticking to the carpeting and causing her to lose her balance; her shoes had a low, rubber heal that given the right angle and force, the commission inferred (the shoe) would grab and hold in the carpet).

Next, as a follow-up to support its dismissal claim, the respondent argued that the fall was "unexplained." 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).

Similar to Briggs & Stratton, the applicant was unable to identify what her foot stuck on. However the applicant consistently indicated that her "foot stuck" and she fell. Again, the location of the fall in relation to the "bag rack" supports the applicant's version of the events. Sticking while maneuvering around an obstacle could easily be explained both as a trip and a loss of balance - especially given the forward force and speed with which she fell (she suffered a complete rotator tear). Thus, the applicant has met her burden to explain her injury and establish that it arose from the employment. See Desiree Harris v. ASHA Family Services, WC Claim No. 2002-045614 (LIRC Jan. 26, 2005)(applicant established her fall at work was not idiopathic, and was not an unexplained fall; while she could not identify the specific reason for the floor being slippery, she knew how she fell, where she fell, and that she fell because the floor was slippery).

The ALJ's decision is affirmed as modified.

cc: Attorney Daniel D. Whetter
Attorney Peter M. Farb

Appealed to Circuit Court.

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