Morgan’s Tip of the Week-Important “Arising out of” Caselaw

Greetings, last week the 1 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 1 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 1 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 1 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.

Silberberg case HERE

Morgan Indek | Managing Partner