HAROLD GRUETZMACHER, Applicant

PACON CORPORATION, Employer

VIKING INSURANCE COMPANY OF WISCONSIN, Insurer

Pursuant to the timely petition for review filed on behalf of the applicant in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Administrative Law Judge's findings and order are supported thereby. The Commission therefore adopts the findings and order of the Administrative Law Judge as its own.

NOW, THEREFORE, the Labor and Industry Review Commission does

That the findings and order of the Administrative Law Judge are hereby affirmed.

Dated and mailed March 20, 1991
110 : CD6112  ND § 3.34

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

This case involves injuries suffered as the result of a purely idiopathic fall by an employe from an elevated platform on which his job required him to work. The height of the platform (considering the evidence most favorably to the employe) was ten inches above the floor on which the employe landed when he fell. The employe argues that the accident causing the injuries arose out of his employment, contending that the case cannot be distinguished in a principled way from Cutler-Hammer, Inc. v. Industrial Comm., 5 Wis. 2d 247 (1958). In that case, the employe sustained injuries when he fell while proceeding down a staircase consisting of three steps, the staircase having a total height of 20 inches above the floor to which it descended.

The Administrative Law Judge distinguished Cutler-Hammer by reference to the fact that the ten inch height in this case was only 50 percent of the 20 inch height in Cutler-Hammer, and by reference to the fact that the fall in that case occurred while the employe was proceeding down the steps. Only this latter distinction approaches the crux of the matter. In fact, the distinguishing feature between this case and Cutler-Hammer is simply that Cutler-Hammer did not involve an idiopathic fall. The cause of the fall in Cutler-Hammer was not found to have been a force solely personal to the employe. Rather, as the court subsequently explained in Nielsen v. Ind. Comm., 14 Wis. 2d 112, 115 (1960), the Commission had concluded in Cutler-Hammer that the employe slipped while proceeding down the steps in the course of his employment.

A more appropriate comparison is between the facts of this case and the facts of Milwaukee Electric Railway & Light Co. v. Industrial Comm., 212 Wis. 227 (1933), which involved a purely idiopathic fall (arising out of a heart attack) by an employe from a height of no more than 22 inches, and Peterson v. Industrial Comm., 269 Wis. 44 (1955), which involved a purely idiopathic fall (also arising out of a heart attack) in which an employe, immediately after ascending and then descending two or three steps, fell to the level surface on which she was then standing. In Milwaukee Electric, the resultant injury was considered to arise out of the employment because of the height from which the employe fell; in Peterson, injury caused by the fall was not considered to have arisen out of the employment because the fall was from a level surface. The question presented is how a fall from a ten inch height in this case can be distinguished from the fall from a height of 22 inches in Milwaukee Electric, or, put another way, where between a height of 22 inches and a level floor should the line be drawn, to separate cases in which injuries resulting from an idiopathic fall will be deemed to have arisen from a zone of special danger created by the height, from cases in which no zone of special danger is deemed to exist.

Arbitrarily designating a certain number of inches as the point of demarcation between these two types of cases is not a satisfactory solution. The answer, provided by the court in Milwaukee Electric and alluded to by the Administrative Law Judge in this case, is that in Milwaukee Electric there was medical evidence that the injury resulting from the fall (a skull fracture) was more severe because of the distance through which the employe fell than it would have been had the employe simply fallen to a level floor while standing on it. Milwaukee Electric, 212 Wis. at 229. Thus, it is not a matter of a particular number of inches above a level floor suddenly constituting a "special zone of danger." Rather, the question to be answered is whether the injuries sustained in an idiopathic fall from a height were more severe because of the distance through which the employe fell than they would have been had the fall occurred from a standing position on a level floor.

In certain cases, it may not be necessary to resort to expert medical opinion in order to justify a conclusion that the distance of a fall caused the injury sustained thereby to be greater than it would have been had the fall been from a standing position on a level floor. To suggest an obvious example, if an employe is required by his employment to stand upon a platform at a height of ten feet above the floor, and the employe loses consciousness for idiopathic reasons and falls to the floor below, sustaining injuries, common knowledge will be adequate to inform the decision-maker that the injuries resulting from the fall were more severe than they would have been had the employe fallen to the same floor for idiopathic reasons while standing upon it in the first place. It is not necessary for the Commission to indicate, in this case, where or even whether a distinct dividing line must be drawn between cases in which common knowledge will be adequate to inform the decision-maker that the height of the fall contributed to the severity of the injuries, and cases in which medical evidence will be necessary to establish that. In the case of a fall from a height of only ten inches above the floor, common knowledge is not adequate to inform the decision-maker that injury sustained from such a fall will be more severe than injury sustained in a fall to the same floor from a standing position upon that floor. There is no medical evidence in this record establishing this fact. Without such evidence, or even an indication that such evidence could be provided, the Commission cannot conclude that the injuries incurred by the employe in the fall, such as they were, arose out of his employment.

cc: 
David L. Styer, Attorney
Kasdorf, Lewis & Swietlik, S.C.

Anthony W. Wellhouse, Attorney
Gillick, Murphy, Gillick & Wicht

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