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

GAIL M BECKWITH, Applicant

DEAN MEDICAL CENTER, Employer

FIREMANS FUND INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96066236

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 by the applicant.

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 14, 1998
beckwga . wsd : 175 : 2  ND § 3.34

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant asserts in her petition for commission review that the administrative law judge erred in determining that the applicant had not met her burden of proof beyond a legitimate doubt that the injury the applicant suffered on October 25, 1996, when she fell at work was actually caused by a particular hazard from the floor of the employer, and thus a work-related injury was not demonstrated. The applicant states that the administrative law judge should have credited her testimony that she was injured when she fell as a result of the fact that her foot was caught by something to cause it to stop moving, and also the fact that she was rushing to perform her job duties and that this was the cause of the fall.

However, the applicant testified that she was returning from her lunch break before she went to her office and she had to go through the reception area and then turn into her office and as she turned into her office she felt her right foot grab. The applicant testified that her left leg went under her and she was on the floor in a lot of pain and that she felt her foot catch before the fall and there was pain immediately. Upon cross-examination the applicant testified that all she knew was that she fell. The applicant admitted that there was little differential in the carpeting in her office and reception area. The applicant testified that she just assumed that her toe was caught but she added that she now knows that her toe was caught. The applicant testified that she was not paying attention to the floor at the time of the injury and that something stopped her foot and it could have been carpeting.

The medical notes dated October 25, 1996, indicate simply that the applicant fell injuring her leg just a little below the knee but the notes do not indicate how the applicant fell. The applicant completed an accident report at the Dean Medical Center dated October 25, 1996, in which she explained that she was returning to work walking into the triage room when she fell. The applicant indicated that she was unsure of what caused the fall and that she immediately had severe pain just below her knee in her left leg. The applicant indicated in her recorded statement dated November 6, 1996, that she was returning to work and walking from the hallway coming into her office and everything happened so quickly, and that all she knew was that she fell. The applicant indicated in her recorded statement that there was a difference in the carpet between the hallway and her office but she admitted that there was little difference in the carpeting and she did not believe that it amounted to anything. The applicant stated that all she could assume is that the toe of her shoe must have caught just right and she just went down.

When asked in her recorded statement whether she really had no idea what caused the fall, the applicant stated that she did not. The applicant concluded her recorded statement by saying that she was just walking back into her office on October 25, 1996, and it was a fall, and she had no idea what caused her to fall and she just went down and she had never gone down like that before.

The Wisconsin Supreme Court has held that a level surface is not an area of special danger. Peterson v. Industrial Comm., 269 Wis. 44 (1955). The Wisconsin Supreme Court noted in Kraynik v. Industrial Comm., 34 Wis. 2d 107, 113 (1967), that it was not prepared to accept the contention that in the absence of a special condition or circumstance, a level floor in a place of employment is a hazard. In order to establish that her injury arose out of her employment the applicant must establish that there was a special condition or circumstance which made the level floor in the employer's premises a zone of special danger.

In this case the applicant testified that she felt her foot catching before she fell. The applicant also noted that there was different carpeting in the hallway or reception area than in her office. However, the evidence did not establish that the applicant tripped over an edge of carpeting in the doorway. The applicant admitted under cross-examination that she assumed that her toe was caught. The applicant then changed her testimony and testified affirmatively that her toe was caught. However, in the applicant's recorded statement she said she did not know what caused her fall. The applicant stated that she had no idea why she fell but that she just went down. There was no evidence that the applicant slipped on a foreign object, or that the carpeting was slippery or that any other hazard was present that would have caused the applicant to fall. The inconsistencies in the applicant's testimony as compared to her recorded statement undercuts the credibility of her assertion that she fell when her foot caught on the carpet.

In a similar case, the commission found in Durkee v. Marathon County, Commission Decision dated April 16, 1992, that an applicant who fell on a clear terrazzo waxed floor did not establish that her fall resulted from her employment. The commission noted that the applicant failed to present evidence that the hard terrazzo floor created a dangerous situation that increased the risk to the applicant by virtue of having to be there in the course of her employment. In the Durkee case there was no evidence of any special condition or circumstance which made the floor slippery or any foreign objects which caused the applicant to fall. In our current case the applicant did not know what caused her to fall and it was not established that there was any hazard or zone of danger on the employer's premises which caused her to fall. As the applicant has failed to establish that there was a special condition or circumstance which made the floor in the employer's premises a zone of special danger, it was not established that the applicant's fall was work related and the applicant's fall must be considered idiopathic. Therefore, the administrative law judge appropriately dismissed the applicant's claim for benefits.

cc: ATTORNEY MICHAEL D STOTLER
BREN PRZYBECK & STOTLER

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