Greetings, the most common question I am asked is usually about compensability of idiopathic claims. The claimant was just walking down the hallway and fell, the claimant fainted, etc….
To determine whether the claim is compensable, we have to answer 2 questions :
- Was the accident caused by a pre-existing/non-work related condition?
- This is the E/C’s burden to prove either through prior records, the authorized treater or a subsequent IME. If you can’t prove it was caused by a pre-ex condition, you are stuck with the claim being compensable.
- In the 2022 Silberberg case (attached and summarized below), the clmt’s leg fell asleep and he then fell when he got out of his chair and fractured his leg. The E/C’s IME diagnosed him with venous insufficiency, which caused his leg more likely to fall asleep, which caused the fall. So, there was a pre-ex condition that caused the fall in this case.
- Clumsiness is compensable, it has to be an actual non-work related condition that caused the fall. Tripping over your own feet is a compensable claim unless there is a non-work related reason that caused the claimant to trip, such as a pree-ex knee injury.
- Even if there is a pre-ex condition that caused the accident, did the workplace create any increased hazard?
- In Silberberg, the DCA looked at the chair, the floor, that he was not rushed or an emergency, nor did he have to sit for a prolonged time. They determined there was no increased hazard. Not compensable.
- If there is a pre-ex condition that caused the fall, and the workplace posed no increased hazard, the claim can be denied in its entirety.
In these situations, without an increased hazard, we don’t have to pay for the leg injury or any part of the claim, the entire claim is denied as it does not “arise out of employment”.
However, let’s say there was an increased hazard, an emergency fire drill that he had to leap up out of his chair for example. In that case, we would NOT have to treat the pre-ex venous insufficiency condition, but we would have to arguably treat the broken leg.
We would only have to treat the pre-ex condition if the accident aggravated the condition, and the accident is and remains the major contributing cause of the need for the treatment. Possibly, if the pre-ex condition is a hinderance to recovery, we may have to treat it as well to be able to treat the compensable injuries (for example getting diabetes under control).
See below for my original Tip on Silberberg.
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Greetings, last week the 1st DCA issued a very important decision regarding the meaning of “Arising out of” means and its impact on idiopathic claims. To this day, the number one question I seem to get is is it compensable if a claimant is just walking at work and falls (in fact we have a CEU outline called Is it Idiopathic, the number one question in WC). Below is my somewhat longer than normal write up of the Silberberg v. Palm Beach County School Bd. case, but the DCA really put some nuggets in there for all of us to understand it.
In Silberberg, the claimant was a teacher, and he sat down for 5 minutes at his usual rolling chair at his usual desk (nothing unique about them). When the students lined up for lunch, and with no urgency, he stood up, tried to take a step, but had no feeling in his left leg because it was asleep. His leg gave way, and he fell to the linoleum floor, fracturing his left femur. The claimant did not argue that any of his work conditions or the floor was an increased hazard or unique to work.
The Employer/Carrier’s IME reported the claimant had occasional numbness in his left foot prior to the accident, but it was not related to any specific major medical illness. The doctor felt he may have had some venous insufficiency that could give rise to a compressed nerve when sitting. The claimant’s IME basically came to the same conclusion, it was either compressing of the nerve because of sitting or his vasculature that caused his leg to fall asleep. Both IME’s felt the condition was something that could happen anywhere, whether at work or at home.
The JCC found the claimant was in the course and scope of his employment, but followed the 1st DCA opinion in the Valcourt-Williams case, and denied the claim. The JCC ruled that there was no evidence that the physical surroundings on the job in any way contributed to the risk of an injury more than they would have in nonemployment life. The claimant appealed the decision.
The 1st DCA did a very detailed analysis of the case law on these issues. If a non-work factor contributed to an accident, the employee must demonstrate that the employment itself created the hazard or increased the risk of the accident. An idiopathic condition which results in injury to the worker does not arise out of employment unless the employment in some way contributes to the risk of accident or aggravates the injury.
Worth noting the DCA clearly states idiopathic refers to a physiologic condition, and it does not include clumsiness or carelessness because in Workers’ Comp there is no fault in the causation analysis. An idiopathic condition can take many forms, and need not be “pre-existing” as in previously known, manifested or treated. It could be something that occurred for the first time, it could be dizziness or even the leg brace giving way in the Grimes case. To determine if a claimant is performing work, the court talked about the “any exertion” test from the Caputo case where they state that any exertion in furtherance of work will do. The mundane exertion of walking to get around work is enough to establish a work cause because the “any exertion” test does not look at the quality or quantity of the activity. Even sitting at work qualifies as “any exertion” if an accident or fall occurs and there is no idiopathic condition. A claimant simply walking between offices or stations and tripping over his own feet, with no pre-existing condition or idiopathic manifestation would be compensable.
However if there is an idiopathic condition is added to that example, such as the claimant’s knee giving out, the “any exertion” test no longer applies because there is more than one cause. In that case, the increased hazard analysis is necessary to determine whether work or the idiopathic condition was the Major Contributing Cause. The DCA states the work performed must be the major contributing cause of the accident and injury. However in the absence of any known idiopathic cause there are no competing causes in the mix to assess, and the MCC standard would not be necessary (same logic from the Caputo case).
Then the DCA turns to the greatly discussed Valcourt-Williams case. In that case, a claimant while on a coffee break while working at home, tripped over her dog. The DCA greatly narrowed the impact of Valcourt to apply only to personal comfort breaks. The DCA stated that Valcourt was a very narrow, trip and fall/comfort-break accident. The court stated that an employee injured during a comfort break must demonstrate that the nature of the cause of the comfort-break accident was truly exertion specific for work (and not just a personal comfort-break activity) or a true work condition and not a feature of the claimant’s non-employment life. In regards to the reach of the case, the DCA said “that is it; nothing more, nothing less.”
As to Silberberg, the 1st DCA stated he brought to work his inherently personal physiological tendency that his leg would go numb due to his vasculature. His leg falling asleep could have happened anywhere at any time per the medical evidence and testimony (without the medical opinion I think there is a different outcome). The court noted that “there is no doubt” that the sitting was his exertion for work, that sitting was a work activity. However to establish the sitting was the MCC of his fall as compared to his idiopathic condition, the claimant needed to present evidence that the sitting was an exertion or strain more or different than what he would encounter in his non-work life, and he did not. Examples that could have made this compensable would have been he had to sit for an unusually long time, the chair was unusually hard or prone to make his leg fall asleep, he had to jump up from his chair or there was something unusual about the floor that caused the fall. Therefore, because there was no increased hazard, the DCA concluded his accident did not arise out of employment and was not compensable.
Sincerely,
Morgan Indek | Managing Partner