RENDERED : JUNE 25, 2009 TO BE PUBLISHED
6;VUYrrMr Courf of ` ~fir 2008-SC-000853-WC
'(ill oq ~C.lal . a~e. . VACUUM DEPOSITING, INC. APPELLANT
ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2008-CA-000797-WC WORKERS' COMPENSATION BOARD NO. 07-96080
TAMATHA DEVER; HONORABLE A. THOMAS DAVIS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) dismissed the claimant's application
for benefits, having found that evidence she was "clumsy" and wearing high
heels at the time of a workplace fall rebutted the presumption it was work
related and that the weight of reliable evidence showed it did not arise from her
employment. The Workers' Compensation Board (Board) reversed and
remanded on the ground that the ALJ misapplied the law. The Court of
Appeals affirmed.
Appealing, the employer argues that substantial evidence of a non-work-
related cause for the fall reduced the rebuttable presumption of causation to a
permissible inference and that the Board erred by substituting its judgment for the ALJ's regarding the weight and credibility of evidence. We affirm because
the ALJ misapplied the law. The employer failed to meet its burden to rebut
the Workman presumption' because the claimant's testimony that she
considered herself to be clumsy and that she was wearing shoes with two-inch
heels was not substantial evidence to prove a non-work-related cause.
The claimant was born in 1968 and is a college graduate and licensed
real estate appraiser. She worked for the defendant-employer as an account
manager. Her application for benefits alleged that she fractured her right wrist
and injured her right hip and low back in a workplace fall that occurred on
January 3, 2007.
The claimant testified that she slipped while walking towards a vending
machine in the break room and fell in a seated position with both arms behind
her, palms down. No one else was in the break room at the time and she did
not recall if anything was on the floor at the time . She stated, however, that
there was always paper on the floor and that the garbage cans were always
overflowing . She did not know why she fell.
The claimant testified that she experienced pain and swelling in her wrist
immediately after the fall . She reported the injury to Myra Dempsey and went
to BaptistWorx where she was referred to a hand surgeon for treatment of a
fractured wrist . She began to experience hip and back pain about a week later.
Although she stated that she had experienced back pain previously, she did
' See Workman v. Wesley Manor Methodist Home, 462 S.W.2d 898, 900 (Ky. 1971) . 2 not remember when she was last treated for the condition . Nor did she recall
having a CT scan in 2004 .
Myra Dempsey, company controller, testified that the claimant was
wearing high heels when she fell. Dempsey stated that, when reporting the fall,
the claimant explained that she was clumsy; that she "just turned around and
fell and had no idea how;" and that she was "the only person she knew that
could fall while standing still." Dempsey stated that it was neither unusual nor
inappropriate for female employees to wear high heels to work.
Michael Krafka, first shift supervisor, testified that he inspected the
break room after the fall. He reported that he found "no liquid or debris
around the area where the fall occurred that could have contributed to the
accident." He noted that the claimant concurred by stating, "I just turned
around and fell and have no idea how it happened ."
The claimant testified at the hearing that all of the women in the
company's offices wore high heels at times and that she was wearing boots with
about two inch heels when she fell. She denied being dizzy or feeling any pain
at the time. Describing the fall, she stated that she walked towards the
vending machine, stood there, and turned around and slipped and fell. She
testified that there was some trash by the machine and that there was "always
stuff on the floor in the break room." She denied telling Dempsey that she
could fall while standing still and denied speaking with Krafka about the fall . The employer asserted that the fall was idiopathic . It maintained that
evidence the claimant was clumsy and wearing shoes with high heels rebutted
the Workman presumption . It also maintained that her hearing testimony
regarding trash on the floor of the break room was not credible.
The ALJ found the claimant not to be credible and questioned the
veracity of her testimony about the fall, noting her inability to remember the CT
scan and treatment for back pain ; her changing testimony about whether there
was debris on the floor when she fell ; her previous lawsuit for a slip and fall
accident; and the fact that she took cell phone photographs two days after the
fall presently at issue . The ALJ viewed the claim as being "a classic . .
idiopathic fall case," and found the positional risk doctrine to be inapplicable
because the claimant struck nothing as she fell . The ALJ found that the
claimant admitted she had no idea how she fell, was clumsy, and was wearing
high heels at the time of the accident. Analyzing the evidence to rebut the
presumption of work-relatedness, the ALJ stated:
The best interpretation is that she merely turned around and fell down, and her work, in no way, contributed to the cause of her fall. The Plaintiff told Ms. Dempsey that she is "clumsy," and the additional evidence that Ms. Dever was wearing high heels at the time, constitutes sufficient evidence for the ALJ to reduce the rebuttable presumption of the fall arising out of the work situation to simply a permissible inference . . . . [T]here is nothing about the circumstances of the Plaintiffs fall that suggests her work contributed to the cause of the fall. The fall could just have as easily occurred when the claimant was on any other level surface anywhere . It is the ALJ's perception that it is very likely that an element of clumsiness and instability of high heels is involved.
The ALJ concluded that the evidence rebutted the Workman presumption,
reducing it to a permissible inference, and that the weight of reliable evidence
showed the fall did not arise from the claimant's employment .
KRS 342 .0011(1) required the claimant to prove that her injury arose
both out of and in the course of her employment. In common parlance, the
term "idiopathic" means "arising spontaneously or from an obscure or
unknown cause ."2 The term is used differently in the workers' compensation
arena. Professor Larson explains that an analysis of whether a workplace
injury arises out of the employment begins by considering the three categories
of risk: 1 .) risks distinctly associated with employment; 2 .) risks that are
idiopathic or personal to the worker; and 3.) risks that are neutral. 3 Larson
notes that "unexplained fall cases begin with a completely neutral origin of the
mishap, while idiopathic fall cases begin with an origin which is admittedly
personal . "4 The latter group involves an idiopathic or personal factor that
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED : JUNE 25, 2009 TO BE PUBLISHED
6;VUYrrMr Courf of ` ~fir 2008-SC-000853-WC
'(ill oq ~C.lal . a~e. . VACUUM DEPOSITING, INC. APPELLANT
ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2008-CA-000797-WC WORKERS' COMPENSATION BOARD NO. 07-96080
TAMATHA DEVER; HONORABLE A. THOMAS DAVIS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) dismissed the claimant's application
for benefits, having found that evidence she was "clumsy" and wearing high
heels at the time of a workplace fall rebutted the presumption it was work
related and that the weight of reliable evidence showed it did not arise from her
employment. The Workers' Compensation Board (Board) reversed and
remanded on the ground that the ALJ misapplied the law. The Court of
Appeals affirmed.
Appealing, the employer argues that substantial evidence of a non-work-
related cause for the fall reduced the rebuttable presumption of causation to a
permissible inference and that the Board erred by substituting its judgment for the ALJ's regarding the weight and credibility of evidence. We affirm because
the ALJ misapplied the law. The employer failed to meet its burden to rebut
the Workman presumption' because the claimant's testimony that she
considered herself to be clumsy and that she was wearing shoes with two-inch
heels was not substantial evidence to prove a non-work-related cause.
The claimant was born in 1968 and is a college graduate and licensed
real estate appraiser. She worked for the defendant-employer as an account
manager. Her application for benefits alleged that she fractured her right wrist
and injured her right hip and low back in a workplace fall that occurred on
January 3, 2007.
The claimant testified that she slipped while walking towards a vending
machine in the break room and fell in a seated position with both arms behind
her, palms down. No one else was in the break room at the time and she did
not recall if anything was on the floor at the time . She stated, however, that
there was always paper on the floor and that the garbage cans were always
overflowing . She did not know why she fell.
The claimant testified that she experienced pain and swelling in her wrist
immediately after the fall . She reported the injury to Myra Dempsey and went
to BaptistWorx where she was referred to a hand surgeon for treatment of a
fractured wrist . She began to experience hip and back pain about a week later.
Although she stated that she had experienced back pain previously, she did
' See Workman v. Wesley Manor Methodist Home, 462 S.W.2d 898, 900 (Ky. 1971) . 2 not remember when she was last treated for the condition . Nor did she recall
having a CT scan in 2004 .
Myra Dempsey, company controller, testified that the claimant was
wearing high heels when she fell. Dempsey stated that, when reporting the fall,
the claimant explained that she was clumsy; that she "just turned around and
fell and had no idea how;" and that she was "the only person she knew that
could fall while standing still." Dempsey stated that it was neither unusual nor
inappropriate for female employees to wear high heels to work.
Michael Krafka, first shift supervisor, testified that he inspected the
break room after the fall. He reported that he found "no liquid or debris
around the area where the fall occurred that could have contributed to the
accident." He noted that the claimant concurred by stating, "I just turned
around and fell and have no idea how it happened ."
The claimant testified at the hearing that all of the women in the
company's offices wore high heels at times and that she was wearing boots with
about two inch heels when she fell. She denied being dizzy or feeling any pain
at the time. Describing the fall, she stated that she walked towards the
vending machine, stood there, and turned around and slipped and fell. She
testified that there was some trash by the machine and that there was "always
stuff on the floor in the break room." She denied telling Dempsey that she
could fall while standing still and denied speaking with Krafka about the fall . The employer asserted that the fall was idiopathic . It maintained that
evidence the claimant was clumsy and wearing shoes with high heels rebutted
the Workman presumption . It also maintained that her hearing testimony
regarding trash on the floor of the break room was not credible.
The ALJ found the claimant not to be credible and questioned the
veracity of her testimony about the fall, noting her inability to remember the CT
scan and treatment for back pain ; her changing testimony about whether there
was debris on the floor when she fell ; her previous lawsuit for a slip and fall
accident; and the fact that she took cell phone photographs two days after the
fall presently at issue . The ALJ viewed the claim as being "a classic . .
idiopathic fall case," and found the positional risk doctrine to be inapplicable
because the claimant struck nothing as she fell . The ALJ found that the
claimant admitted she had no idea how she fell, was clumsy, and was wearing
high heels at the time of the accident. Analyzing the evidence to rebut the
presumption of work-relatedness, the ALJ stated:
The best interpretation is that she merely turned around and fell down, and her work, in no way, contributed to the cause of her fall. The Plaintiff told Ms. Dempsey that she is "clumsy," and the additional evidence that Ms. Dever was wearing high heels at the time, constitutes sufficient evidence for the ALJ to reduce the rebuttable presumption of the fall arising out of the work situation to simply a permissible inference . . . . [T]here is nothing about the circumstances of the Plaintiffs fall that suggests her work contributed to the cause of the fall. The fall could just have as easily occurred when the claimant was on any other level surface anywhere . It is the ALJ's perception that it is very likely that an element of clumsiness and instability of high heels is involved.
The ALJ concluded that the evidence rebutted the Workman presumption,
reducing it to a permissible inference, and that the weight of reliable evidence
showed the fall did not arise from the claimant's employment .
KRS 342 .0011(1) required the claimant to prove that her injury arose
both out of and in the course of her employment. In common parlance, the
term "idiopathic" means "arising spontaneously or from an obscure or
unknown cause ."2 The term is used differently in the workers' compensation
arena. Professor Larson explains that an analysis of whether a workplace
injury arises out of the employment begins by considering the three categories
of risk: 1 .) risks distinctly associated with employment; 2 .) risks that are
idiopathic or personal to the worker; and 3.) risks that are neutral. 3 Larson
notes that "unexplained fall cases begin with a completely neutral origin of the
mishap, while idiopathic fall cases begin with an origin which is admittedly
personal . "4 The latter group involves an idiopathic or personal factor that
would have resulted in harm regardless of the employment, such as a pre-
existing disease or physical weakness, personal behavior, or a personal mortal
enemy. 5 Larson notes also that unsuitable clothing may be considered to be an
2 http://www.merriam-webster .com/dictionary/idiopathic. 3 Arthur Larson and Lex K. Larson, Larson's Workers' Compensation Law, § 4 (2006) .
4 Larson's , § 9.01[l] . 5 Larson's , supra, at §§ 7 .04[1][b] and 9 .01-.02 . 5 imported or personal risk.6 Kentucky cases addressing unexplained and
idiopathic falls involve a back condition,? heart attack,$ an epileptic seizure, 9
and an allegation of syncope. 10
Kentucky has adopted a presumption that an unexplained workplace fall
arises out of the employment unless the employer presents substantial
evidence to show otherwise . ll The employer cannot prevail in such a case
unless it shows affirmatively that the fall was not work-related. The employer
in Workman did so by showing that Ms. Workman's testimony in the workers'
compensation claim conflicted with her testimony in an unrelated civil suit that
her back had been symptomatic and caused her to fall before the incident at
work. The court determined that the employer offered sufficient evidence that
the fall was idiopathic to negate the presumption that it was not.
The court explained subsequently in Turbyfill that an idiopathic fall may
be compensable if work places the injured worker in a position that increases
its dangerous effects. 12 Turbyfill's employer negated the Workman
presumption by showing that his fall resulted from a non-work-related heart
6 Larson's , supra, at § 9.03[5] . Workman, supra. 8 Indian Leasing Company v. Turbyfill, 577 S .W.2d 24 (Ky. App. 1978)_
9 Stasel v. American Radiator & Standard Sanitary Corporation, 278 S.W.2d 721 (Ky. 1955) . to Jefferson Count 208 S .W.3d 862 (Ky. 2006). 11 Workman, 462 S.W.2d at 900-02.
12 577 S .W.2d 24. attack. The court found the fall to be compensable, however, because the fact
that he was working 12 feet off the ground increased the fall's effects.
To summarize, a work-related fall occurs if the worker slips, trips, or falls
due to causes such as a substance or obstacle on the floor of the workplace or
an irregularity in the floor. When the cause of a workplace fall is unexplained,
the fall is presumed to be work-related under Workman. Unexplained falls
divide ultimately into two categories: 1 .) those the employer has shown to
result from a personal or idiopathic cause but which may be compensable
under the positional risk doctrine; and 2 .) those that remain unexplained and
entitled to a presumption of work-relatedness.
The claimant alleged an unexplained fall but, as in Workman, the ALJ
found that the employer rebutted the presumption of work-relatedness and
showed the fall to be personal or idiopathic . The employer asserts that the
Board erred by substituting its judgment for the ALJ's and, thus, that the
Court of Appeals erred by affirming the Board . We disagree.
The ALJ characterized the claimant as "not an entirely credible witness"
but determined that a workplace fall occurred although its cause was
idiopathic . The fact that the claimant's work did nothing to cause her fall was
immaterial under Workman. The record contained no evidence that she
suffered from a pre-existing disease or physical weakness that caused her to
fall and no evidence that she was engaged in conduct when she fell that would
take the injury outside Chapter 342 . Nor did the record contain evidence that her footwear was inherently dangerous and inappropriate for work in the
employer's offices . Like the Board and the Court of Appeals, we are convinced
that evidence the claimant was clumsy and wearing high heels was not
sufficient to prove that the cause of her fall was idiopathic. The evidence did
not overcome the presumption that the fall was unexplained and, thus, that it
was work-related .
The decision of the Court of Appeals is affirmed .
All sitting. All concur .
COUNSEL FOR APPELLANT, VACUUM DEPOSITING, INC . :
Brian T. Gannon Fulton 8v Devlin 2000 Warrington Way Suite 165 Louisville, KY 40202
COUNSEL FOR APPELLEE, TAMATHA DEVER:
Dana Taylor Skaggs One Riverfront Plaza 401 West Main Street Suite 1706 Louisville, KY 40202