CLAIM NO. E914507
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 14, 2003
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE FREDERICK S. “RICK” SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondent represented by HONORABLE S. HUBERT MAYES, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
The claimant appeals to the Full Commission an Administrative Law Judge’s opinion filed February 21, 2002. The Administrative Law Judge denied and dismissed the claimant’s claim, and found, in relevant part:
That the Claimant has failed to prove by a preponderance of the credible evidence that she sustained a compensable specific incident injury to her right knee on November 23, 1999; specifically, Claimant has failed to prove that she was engaged in employment services at the time of sustaining her right knee injury; and Claimant has further failed to prove that she sustained any injury to her knee that was caused by a specific incident, and is identified by time and place of occurrence, that arose out of her employment.
After reviewing the entire record de novo, we find that the claimant was performing employment services at the time of her fall on the date in question. However, a preponderance of the evidence establishes that the claimant sustained an idiopathic fall for reasons unrelated to her employment. Therefore, for the reasons set forth herein, we affirm the Administrative Law Judge’s denial of the claimant’s claim.
With regard to the employment services issue, as recently explained by the Arkansas Court of Appeals in Privett v. Excel Specialty Products, 76 Ark. App. 527, 69 S.W.3d 445(2002):
Arkansas Code Annotated section 11-9-102(4)(A) (Supp. 2001) defines “compensable injury” as “an accidental injury causing internal or external physical harm . . . arising out of and in the course of employment.” Employment services are performed when the employee does something that is generally required by his or her employer. Collins v. Excel Spec. Prod., 347 Ark. 811, 69 S.W.3d 14 (2002); Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002). We use the same test to determine whether an employee was performing “employment services” as we do when determining whether an employee was acting within “the course of employment.” Collins, supra; Pifer, supra. The test is whether the injury occurred “within the time and space boundaries of employment, when the employee [was] carrying out the employer’s purpose or advancing the employer’s interests directly or indirectly.” Collins, supra; Pifer, supra. This test has also been previous [sic] stated as whether the employee is “engaged in the primary function that he was hired to perform or in incidental activities that are inherently necessary for the performance of the primary activity.” Olsten Kimberly Quality Care v. Pettey, 55 Ark. App. 343, 934 S.W.2d 956 (1996), Aff’d, 328 Ark. 381, 944 S.W.2d 524 (1997).
In the present claim, contradictory evidence was presented which indicated that the claimant was either on her way to retrieve a barrel or on her way to the restroom when she fell. Based upon the holdings inPifer, supra, and Collins, supra, under either circumstance, the claimant was performing employment services at the time of her fall. Therefore, the Administrative Law Judge’s finding that the claimant was not performing employment services at the time of her injury is incorrect.
However, the Administrative Law Judge found alternatively that the claimant failed to prove a causal connection between her injury and her employment; i.e. whether her fall was idiopathic and non-compensable, or unexplained and compensable.
In Skelton v. Washington Regional Medical Center,
Full Commission Opinion Filed March 7, 2002, Claim No. F011984, we found that although claimant Skelton was performing employment services at the time her injury occurred, the evidence established that she sustained a non-compensable idiopathic injury. Claimant Skelton had arrived early at work, went to the mail room to retrieve mail prior to clocking in, and then went to the cafeteria for some juice. After leaving the cafeteria, claimant Skelton walked down the stairs to the Radiology Department, and as she was walking down the stairs, her knee went out from under her, causing her to fall. Claimant Skelton indicated that she was essentially awake and alert at the time her knee buckled, and that there was nothing on the stairs which caused or contributed to her fall. The Commission found that while she was performing employment services when she fell, claimant Skelton had sustained a non-compensable, idiopathic fall.
In Moore v. Darling Store Fixtures, 22 Ark. App. 21, 732 S.W.2d 496
(1987), the Arkansas Court of Appeals stated:
When one suffers an injury at work, the cause is, obviously, either known or unknown. Larson’s treatise on workers’ compensation law states that the most common example of a situation in which the cause of the harm is unknown is the unexplained fall in the course of employment and that most courts confronted with that situation have seen fit to award compensation. 1 Larson, The Law of Workmen’s Compensation, § 10.31, at 3-87 (1985). However, injuries from idiopathic falls do not arise out of the employment unless the employment contributes to the risk or aggravates the injury by, for example, placing the employee in a position which increases the dangerous effect of the fall, such as on a height, near machinery or sharp corners, or in a moving vehicle. Larson § 12.11.
The word “idiopathic” is defined in Webster’s Third New International Dictionary, Unabridged (1976), as (1) peculiar to the individual, (2) arising spontaneously or from an obscure or unknown cause. Although the two concepts are frequently confused, Larson says “unexplained-fall cases begin with a completely neutral origin of the mishap, while idiopathic-fall cases begin with an origin which is admittedly personal and which therefore requires some affirmative employment contribution to offset the prima facie showing of personal origin.” Larson § 12.11, at 3-314.
In Crawford v. Area Agency on Aging, Full Commission Opinion filed November 18, 1998, Claim No. E612996, it was found that the evidence failed to establish that an injured worker experienced an “unexplained” injury where the evidence showed that: (1) claimant Crawford was conscious and lucid at the time of the fall on a level floor, (2) there was nothing on the floor, the floor was not wet, and claimant Crawford did not slip or trip at the time she fell, and (3) that claimant Crawford’s knee simply gave out when she fell. In finding that claimant Crawford’s injury under these circumstances was idiopathic rather than unknown, a majority of the Full Commission concluded:
While the claimant does not know, and probably never can know, exactly what biomechanical mechanism caused her legs to give way at the precise moment that she fell, we find that the emergency room report, the testimony of Ms. King, and the claimant’s own August 26, 1996, testimony, establish a prima facie showing that the claimant’s fall was caused by a purely personal origin (the claimant’s legs simply giving way). Furthermore, since we do not find credible the claimant’s testimony that her fall occurred on a wet floor or after a back pinch, we also find that there is no credible evidence in the record of any affirmative employment contribution to the claimant’s fall. Consequently, we find that the greater weight of the credible evidence establishes that the claimant’s fall was idiopathic. Finally, we note that the claimant’s fall occurred on a level surface, and there is simply no evidence to conclude that there was present any stairs, etc., which might have increased the risk of the claimant’s sustaining a fall, or which would have placed the claimant in a position which might have increased the dangerous effect of the fall. Therefore, on this record, we are constrained to find that the claimant in the present case sustained a non-compensable idiopathic fall.
In the present case, the claimant testified that her left leg came out from behind her as she stepped off of a platform. She further stated that she noticed powdery sawdust on the floor of that platform before she fell. After this occurrence, according to the claimant’s testimony, she “jumped back up” and went into the bathroom to collect herself. She testified that since she was in the restroom, she went ahead and used the toilet, but that when she attempted to stand afterward she could not straighten her leg. She stated that she was able to get out of the bathroom by supporting herself with the sink and the wall, and that once outside the bathroom she grabbed a large box to support herself and asked a co-worker to go get help.
The claimant’s version of events is not corroborated by the documentary evidence or by the testimony of any other witness. Dr. Varela’s November 29, 1999, office note states that while the claimant was at work, she fell three feet, heard a pop, and was not able to bear her weight. However, no cuts or bruises other than the injury to her knee were noted as having been observed by Dr. Varela which would corroborate a three foot fall; further, this version of events contradicts the claimant’s testimony that she “jumped up” after the fall and went into the bathroom. The Form AR-C prepared by the claimant on March 2, 2000, recites the injury occurring after a trip, not after a fall down a step. Plant Supervisor Danny Vickers testified that at the time of the occurrence, the claimant told him that her knee had given way and that she did not “slip on anything, or stumble or fall.” The employer’s Accident Report Form does indicate that the claimant fell down a step. But it states that the claimant fell after losing her balance, and does not indicate the presence of any sawdust. Finally, the Supervisor’s Accident Investigation report states that the claimant described the injury as occurring while she was walking and her knee collapsed from under her causing her to drop to the floor; it adds that the claimant specifically stated that she did not trip over any step or hazard.
Like the Administrative Law Judge, we do not find the claimant to be a credible witness, and find Danny Vickers’s testimony to be a more credible account of the events surrounding the claimant’s injury. The greater weight of the evidence establishes that the claimant’s knee gave way and she sustained an idiopathic fall for reasons unrelated to her employment.
Based on our de novo review of the entire record, the Full Commission affirms the Administrative Law Judge’s finding that the claimant failed to prove a causal connection between her injury and her employment. The denial and dismissal of the claimant’s claim is therefore affirmed.
IT IS SO ORDERED.
_______________________________ OLAN W. REEVES, Chairman
_______________________________ JOE E. YATES, Commissioner
Commissioner Turner concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
SHELBY W. TURNER, Commissioner
While I concur with the finding that claimant was performing employment services at the time of the accident, I must respectfully dissent from the finding that claimant failed to prove that she sustained a compensable injury.
Claimant sustained a fracture of the patella to her right knee as a result of a fall at work. Claimant testified at the hearing in the following manner:
Q. Now, what happened to you on November 23rd of ’99 around 11 o’clock in the morning, or excuse me, at night, 11 o’clock at night?
A. It was actually approximately five to ten minutes before 11 p.m. I was working a radial arm saw, cutting small blocks. I was having to package them in 55 gallon barrels to send to the shipping department for them to package and ship. Approximately five minutes `til 11 I had filled my last barrel that I had, so I went on a journey to find a new barrel, which was, all of our barrels were out front of the building at that time.
Q. All right.
A. So I shut down my radial arm saw and I proceeded to go out front. And the way that we usually go out front is to go across a small platform which has a step on either side of it. As I walked across the platform, I noticed that there was sawdust, a fine powdery sawdust on the floor. And as I went to step down, I remember my left leg coming out from behind me, and the next thing I knew, I was on the ground.
Q. Okay. And then what did you do?
A. I immediately jumped back up and looked around. I was afraid that somebody had seen me fall.
Q. It was embarrassing?
A. Yes, sir, very embarrassing.
Q. So what did you do then?
A. I then went into the bathroom so I could kinda collect my thoughts over what had just happened to me. I went ahead, since I was in there, I went to the bathroom. Got up, and as I got up, I remember my leg not wanting to cooperate with me. It just stayed in a bent position no matter how hard I tried to straighten it out.
I finally did manage to get up off the commode and proceed to dress myself. And as I went to walk out of the bathroom, I realized my leg would not support my weight. The bathroom in that area was very small, small enough that I could reach from the sink to the wall in a arm’s span. And I proceeded to use the sink and the wall to help me get out of the bathroom.
Q. All right. And did you get out of the bathroom?
A. Yes, sir. It took a few minutes for me to get out of the bathroom. As I exited the door, there was a big box, a cardboard box just outside of the door. I reached and grabbed a hold of the box and got up to the box. And there I saw a fellow co-worker there and I asked him to get our nurse and our supervisor.
Q. And he did?
A. Yes, sir, he did.
Q. And what was your state of mind during this period of time?
A. Total confusion.
Q. Why?
A. I had just been through a traumatic injury.
Q. Were you hurting?
A. Yes, sir. I was in severe pain.
If claimant slipped on some sawdust and fell, the fall was neither idiopathic nor unexplained. The injury would be one arising out of and in the course of her employment. Even if claimant did not slip on sawdust and her knee simply “gave way,” I am not convinced that the cause of the injury was idiopathic rather than unexplained. The mechanism of a fall is not the same as the cause of the fall. See also my dissent in KatrinaSkelton v. Washington Regional Medical Center, Full Commission Opinion filed March 7, 2002 (F011984). Accordingly, I find that claimant has met her burden of proving her entitlement to benefits.
______________________________ SHELBY W. TURNER, Commissioner