FALLS:  IDIOPATHIC, UNEXPLAINED AND COMPENSABLE

Jan M. Schroeder
Peterson, Johnson & Murray, S.C.
733 N. Van Buren St.
Milwaukee, WI  53202

June 4, 2004

I.  	The Basic Rules of Compensability

A.	Injured worker has the burden of proving all "conditions of liability."  Conley v. Industrial Comm., 30 Wis. 2d 71, 140 N.W.2d 210 (1966).

B.	Conditions of liability in Wis. Stat. Sec. 102.03(1):

1.	employee sustains injury;

2. 	employer and employee are subject to the Worker's Compensation Act at the time of injury;

3.	employee is at the time of injury performing service growing out of and incidental to his or her employment;

4.  accident or disease causing injury arises out of employment;

5.  injury not intentionally self-inflicted.

C.	If evidence admitted at the hearing before the Department of Industry, Labor and Human Relations raises a legitimate doubt as to the existence to facts essential to compensation, it is the duty of the DILHR to dismiss the application for hearing on the ground that the applicant did not sustain his or her burden of proof.  Beem v. Industrial Comm., 244 Wis. 334, 337, 12 N.W.2d 42 (1943).

D.	In fall cases, the key issues are the cause of the fall and where it occurred.

II.  	Unexplained Falls

A.	General rule:  In Wisconsin, an unexplained fall is not compensable because, without an explanation as to what caused the fall, the worker cannot prove the accident arose out of employment.

B. 	Nielsen v. Industrial Comm., 14 Wis. 2d 112, 109 N.W.2d 483 (1960):  Worker, a 63-year-old chambermaid, fell and injured her left wrist.  She testified the accident happened so fast that she could not tell how she fell.  She did not know if she slipped or tripped.  She could not implicate a slippery or unbalanced surface.  The court affirmed a denial of compensation, holding that the worker was unable to prove that her injury arose out of a hazard connected to her employment.  It rejected the worker's contention that there was a presumption that falls occurring on the employer's premises were compensable.

C.	 Brickson v. ILHR Dept., 40 Wis. 2d 694, 162 N.W.2d 600 (1968):  Olga Brickson fell as she exited a restroom on her employer's premises, breaking her hip bone.  She testified that as she exited the tiled floor of the restroom and stopped on an asphalt floor in an adjacent hallway, her foot "stopped" and she fell.  There was no water or object on the floor.  In a statement given to an insurance adjuster, Brickson admitted, "I really don't know what caused me to fall because I don't recall slipping on anything or tripping over anything."  The adjuster interviewed Brickson a second time, saying his supervisor insisted that he find what caused the fall, to which Brickson replied, "I don't know why I fell."  The court found an unexplained fall and denied Brickson's claim because she failed to meet her burden of proof.  It noted there was no proof that the transition from the tile to asphalt floor was slippery.

D.	Cutler-Hammer, Inc. v. Industrial Comm., 5 Wis. 2d 247, 92 N.W.2d 824 (1958):  Worker slipped while descending a short flight of stairs, injuring his shoulder.  Court held that the positional risk doctrine supported an award of compensation because the stairs -- a hazard of employment -- contributed to the fall.  The worker tripped on the stairs.

E.	Briggs & Stratton Corp. v. ILHR Dept., 43 Wis. 2d 398, 168 N.W.2d 817 (1969):  Sixty-two-year-old worker claimed she fell when something -- she did not know what -- "stopped" her foot as she walked across a wooden factory floor.  After the fall, the worker noticed oil and grease on her arms and shirt.  She also found oil on the bottom of her "tennis shoes."  Near the location of her fall was a machine that spewed metal chips onto the floor.  The court held the fall was compensable because something on the floor --  a hazard of the employment -- contributed to the fall.  It distinguished Nielsen because the worker in this case knew something caused her fall; it was not totally unexplained.  A worker need not identify the precise object causing the fall.

F.	According to Professor Arthur Larson ("Larson's Workmen's Compensation Law," vol. 1, sec. 10.31(a)), Wisconsin is in the "substantial minority" of states disallowing 

	compensation for unexplained falls.  The majority applies a "but-for" test:  "The particular injury would not have happened if the employee had not been engaged upon an employment errand at the time."  Query:  Would not such a test make all idiopathic falls compensable too?

G.	Potential "explanations" for falls:

1.	slippery surfaces caused by spilled liquids;

2. 	footwear required by employer;

3. 	objects either on the floor or in the way of an employee;

4. 	stairs and ladders;

5. 	fumes from work processes causing fainting;

6. 	uneven surfaces;

7. 	fast walking or running required by an emergent situation.

H.  	One often sees the story change in these cases.  First, before the worker hires a lawyer, she does not know what caused her fall.  After seeing counsel, explanations surface. They may be legitimate explanations of which the worker was simply unaware could cause a fall and result in compensation.  Workers should be cautioned against giving statements before consulting counsel.  Medical records often contain an accurate history.

III.	Idiopathic Falls

A.	The word "idiopathic" comes from the words "idio," meaning private or peculiar to, and "pathos," meaning suffering.  Stedman's Medical Dictionary, 24th ed.  In the law, it means "personal cause."  Thus, idiopathic falls are explained -- by a cause personal to the worker.

B.	Injuries arising out of risks or conditions personal to the worker are not injuries arising out of employment, unless the "employment places the employee in a position increasing the dangerous effects of such a fall. . ."  Larson at sec. 12.11.

C.	Peterson v. Industrial Comm., 269 Wis. 44, 68 N.W.2d 538 (1955):  Minnie Freeman, a 69-year-old village clerk with a "heart condition," fell while attempting to alight stairs at the entrance of the employer's premises.  A co-worker testified that Freeman told him before the fall she did not feel well.  He saw her "wavering" just before she fell.  Fall held not compensable because it arose out of a condition personal to the worker, not a hazard of employment.  (Freeman was on level ground when she fell, not the stairs.)

D. 	Kraynick v. Industrial Comm., 34 Wis. 2d 107, 148 N.W.2d 668 (1966):  The worker "blacked out" at the foot of some stairs at work.  He fell, struck his head on the floor and died of his injuries 18 days later.  His widow's claim for death benefits was denied because there was no proof that a work hazard caused the fall; the worker had a history of blackouts.  The court also adopted the reasoning of a South Carolina court on the issue of whether a hard, level floor is a zone of special danger:  "The floor in the instant case did not create a hazard which would not be encountered on a sidewalk or street or in a home where a hard surface of the ground or a hard floor existed."  (Quoting, Bagwell v. Ernest Burwell, Inc., 227 S.C. 444, 454, 88 S.E.2d 611 (1955)).  Query:  Does that mean only surfaces and objects peculiar to an employment setting constitute special hazards?  What about motor vehicles?

F.	Stairs can be a hazard that turns an idiopathic fall into a compensable fall.  In Milwaukee E. R. & L. Co. v. Industrial Comm., 212 Wis. 227, 247 N.W. 841 (1933), Frank Forman showered at the end of his work shift.  While walking up the third or fourth step of a stairway on his employer's premises he had a heart attack, fell and fractured his skull.  He later died and his widow applied for death benefits.  The Industrial Commission (predecessor to the Labor and Industry Review Commission) found that the heart attack was idiopathic, but would not have been fatal.  It was the skull fracture that caused Forman's death.  The IC further found that the skull fracture was caused by the fall from the stairs.  That is, had Forman simply fallen from a level surface, he would not have fractured his skull.  Therefore, the death was due to a hazard connected to the work -- the stairs -- and the injury, while it had an idiopathic trigger, was compensable.

G. 	Other hazards that can render an otherwise idiopathic injury compensable:

1.	 water (Volunteers of America v. Industrial Comm., 30 Wis. 2d 607, 141 N.W.2d 890 (1966):  Epileptic camp counselor experienced a seizure while canoeing, fell into a lake and drowned.  His "employment placed him in a hazardous position over water and his resultant death by drowning arose out of this hazardous position."  Volunteers of America v. Industrial Comm., 30 Wis. 2d at 613.);

2. 	heights (scaffolds, ladders, window washing equipment, etc.);

3. 	machines;

4. 	sharp edges or corners;

5. 	motor vehicles.

H.	The enhanced danger rule could also make an unexplained fall compensable for the exact reason as it makes the idiopathic fall compensable.