KAREN ROZMARYNOWSKI, Applicant

KELLY SERVICES INC, Employer

TRANSPORTATION INSURANCE COMPANY, 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 October 30, 2002
rozmaka . wsd : 101 : 3   ND § 3.34

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

The applicant was on an assignment at Midwest Express Airlines when she injured her wrists. Her injury occurred when she fell in a break room on the Midwest Airline's premises on March 15, 2001

Specifically, the applicant testified that as she was getting up from a table, her foot slid and she fell forward. She described the fall as the result of a slide, not a stumble, and explained that the floor, while well kept and clean, was very shiny that day. The floor was linoleum or vinyl, and the applicant thought that she slid because of the floor and her shoes (loafers with a half-inch heel and a leather sole). There was no object or substance on the floor under her foot that caused the slip.

The first issue is whether the applicant sustained a compensable injury. The employer and its insurer (collectively, the respondent) argue that the fall in this case is unexplained, and so noncompensable.

An idiopathic fall, or 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," or one attributable to neither an idiopathic/personal cause nor a cause related to employment, is not compensable simply because it 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.

On the other hand,

"it has been said accidents arise out of employment if the conditions or obligations of the employment create a zone of special danger out of which the accident causing the injury arose. Stated another way an accident arises out of employment when by reason of employment the employee is present at a place where he is injured through the agency of a third person, an outside force, or the conditions of the location constituting a zone of special danger."

Cutler-Hammer Inc. v. Industrial Commission, 5 Wis. 2d 247, 254 (1958). Thus, where an employee's work requires him or her to be in a hazardous situation, an injury which he or she sustains may be said to arise out of employment, under what is described as the "positional risk doctrine." Kraynik v. Industrial Comm., 34 Wis. 2d 107, 112 (1967).

Further, 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 court noted in Kraynik, at 34 Wis. 2d 113, 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. On the other hand, a concrete stairway has been held to be a zone of danger so that a fall on such a stairway arises out of employment. Cutler-Hammer Inc. v. Industrial Commission, 5 Wis. 2d 247, 254 (1958).

In this case, the respondent cites Nielsen v. Industrial Commission, 14 Wis. 2d 112 (1960) where a worker fell and hurt her wrist. She could not testify how she fell, or even if she slipped or tripped. She did not know whether the floor was slippery or unbalanced. The worker in Nielsen was regarded as having had a truly unexplained fall, and compensation was denied as the court refused to presume a fall at work is compensable. Id., at 14 Wis. 2d 114-15. In Brickson v. ILHR Department, 40 Wis.2d 694 (1968), a worker fell as she exited a restroom. While the worker in Brickson gave differing accounts of how she fell, there was evidence that she did not know what caused her fall or, again, whether she slipped or tripped. Id., at 40 Wis. 2d 670. In Briggs, by contrast, the worker testified her foot was "stopped" by something on the floor, which then caused her foot to fly out from under her. After the fall, she noted oil on her clothing and shoe, and metal around a machine. Id., at 43 Wis. 2d 401. Her injury was found compensable, as the facts provided an adequate explanation of what caused her fall.

In this case, the applicant knows that she slipped, and indeed told both Dr. Seter and the insurer's adjuster that. The applicant testified, too, that the floor seemed unusually shiny on the day she fell, and that she slid on the floor even after falling. The commission notes the applicant's recounting of a statement made by Tory, a supervisor, that the floor had been recently waxed. (1)

In short, the commission agrees with the ALJ that the fall in this case is not "unexplained." Rather, the applicant fell because she slipped on a slippery floor. The applicant has shown a compensable injury, that is, an injury arising out of her employment with the employer while performing services growing out of or incidental to her employment.

The next question is the extent of the applicant's disability. Like the ALJ, the commission credits Dr. Kuehn's relatively higher ratings because Dr. Brown gives no consideration to the functional effects of the applicant's complaints of pain with various occupational tasks. (2)   Normal palmar flexion is 60 to 70 degrees, so the applicant's losses, coupled with the residual pain, seems to warrant more than the disability rated by Dr. Brown.

cc: 
Attorney Jan M. Schroeder
Attorney Alan L. Derzon

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

(1)( Back ) Because Tory worked for Midwest Airlines, not the employer, the applicant's recounting of Tory's statement might not fit the hearsay exception under Wis. Stat. § 908.01(4)(b). Nonetheless, case law and the department's rules permit the introduction of hearsay testimony with probative value in workers compensation hearings. Wis. Admin Code, § DWD 80.12 (1)(c). While hearsay evidence may not serve as the sole basis for a finding in a contested case, Erickson v. DILHR, 49 Wis. 2d 114, 121-22 (1970), the shiny appearance of the floor and the fact the applicant continued to slide after she fell independently support the finding the floor was slippery.

(2)( Back ) See How to Evaluate Permanent Disability, (Worker's Compensation Division, WKC- 7661-P (R. 04/2000).

uploaded 2002/11/08