Phil A. Livesley Co. v. Russ

• Decision Date: 15 November 1983
• Docket Number: No. WCB,WCB
• Citation: 672 P.2d 337,296 Or. 25
• Parties: In the Matter of the Compensation of Peter J. Russ, Claimant. PHIL A. LIVESLEY CO. and United Pacific Insurance Company, Petitioners on Review, v. Peter J. RUSS, Respondent on Review. 80-03289; CA A22795; SC 29140.
• Court: Oregon Supreme Court

Page 337

672 P.2d 337

296 Or. 25

In the Matter of the Compensation of Peter J. Russ, Claimant PHIL A. LIVESLEY CO. and United Pacific Insurance Company Petitioners on Review, v. Peter J. RUSS, Respondent on Review.

No. WCB 80-03289; CA A22795; SC 29140.

Supreme Court of Oregon.

Argued and Submitted March 7, 1983.

Decided Nov. 15, 1983.

Patric J. Doherty, Portland, argued the cause for petitioners on review. With him on the petition and brief were Dennis R. VavRosky and Rankin, McMurry, VavRosky & Doherty, Portland. Also on the brief in the Court of Appeals was Ronald W. Atwood, Portland.

Michael J. Hansen, Salem, argued the cause for respondent on review. Also on the brief was Thorbeck & Hansen, Salem.

Before LENT, C.J. ^* , and PETERSON ^**, CAMPBELL, ROBERTS, CARSON and JONES, Justices.

CARSON, Justice.

This workers' compensation case presents the question of whether an employee is entitled to benefits for injuries sustained in an unexplained on-the-job fall. We conclude that he is, provided he establishes that the fall occurred during the course of his employment and that it was not caused by idiopathic factors. ¹

The relevant historical facts are uncontested. Claimant was working at his employer's food-processing plant on February 5, 1980, when he sustained his injury. He had just completed a full eight-hour shift sorting onions on a production line. He was walking down a crowded aisle from his work station to the time-clock to punch out, when he unaccountably fell and broke his right hip. He underwent surgery and was ultimately released to return to regular work in September, 1980.

Although the cause remains unknown, the circumstances of claimant's fall are not in dispute. The area where the fall occurred was crowded but it was free from debris or any substance which could account for a slip or trip. Claimant testified that he did not get dizzy, experience vertigo, or lose consciousness prior to the fall. He was unable himself to offer a cause for the fall, however, and admitted that all he could remember of the incident was simply falling. His doctor discounted any pre-existing condition or weakness that could have caused claimant to fall ² and employer has conceded that the fall was not idiopathic in nature. Employer and its insurer have denied liability, contending that an unexplained fall is noncompensable. ³

Whenever compensability of an accidental injury is at issue, one question of fact to be resolved is whether the injury was one "arising out of and in the course of [the claimant's] employment." ORS 656.005(8)(a). The worker has the burden of proving that the injury arose out of and in the course of employment. Ballou v. Industrial Accident Com., 214 Or. 123, 328 P.2d 137 (1958). Although this statutory definition seems to contemplate a bifurcated test, in Rogers v. SAIF, 289 Or. 633, 639-644, 616 P.2d 485 (1980), we adopted a unitary "work-connection" approach: "is the relationship between the injury and the employment sufficient that the injury should be compensable?" 289 Or. at 642, 616 P.2d 485. We noted that this unitary test was not intended to "substantially change" existing law:

" * * * If the injury has sufficient work relationship, then it arises out of and in the course of employment and the statute is satisfied. Existing law regarding proximity, causation, risk, economic benefit, and all other concepts which are useful in determining work relationship remain applicable." 289 Or at 643, 616 P.2d 485.

In Rogers, we quoted from Professor Larson as follows:

"In practice, the 'course of employment' and 'arising out of employment' tests are not, and should not be, applied entirely independently; they are both parts of a single test of work-connection, and therefore deficiencies in the strength of one factor are sometimes allowed to be made up by strength in the other. Id, § 29.00 at 5-354." 289 Or at 643, n. 3, 616 P.2d 485.

Professor Larson further explains the unitary work-connection approach:

"One is almost tempted to formulate a sort of quantum theory of work-connection that a certain minimum quantum of work-connection must be shown, and if the 'course' quantity is very small, but the 'arising' quantity is large, the quantum will add up to the necessary minimum, as it will also when the 'arising' quantity is very small but the 'course' quantity is relatively large. But if both the 'course' and 'arising' quantities are small, the minimum quantum will not be met." 1A A. Larson, Workmen's Compensation Law § 29.10 at 5-355. ⁴

We now turn to the facts of the present case in light of the "course of employment" and "arising out of employment" criteria, which we now recognize as two parts of a single work-connection analysis. We first determine whether the accident occurred "in the course of employment," that is, whether the injury occurred while claimant was at work or engaged in a work-related activity. The time, place and circumstances under which the accident takes place must be considered. Blair v. State Ind. Acc. Com., 133 Or. 450, 454, 288 P. 204 (1930). The accident here happened during working hours, ⁵ on the work premises, while claimant was performing a task that was required by employer for its benefit, namely, walking from his work station to the time-clock to punch out. The "course of employment" test is easily met.

We next consider the "arising out of employment" test. An employer, of course, is not liable for any and all injuries to its employees irrespective of their cause, and the fact that an employee is injured on the premises during working hours does not of itself establish a compensable injury. The employee must show a causal link between the occurrence of the injury and a risk connected with his or her employment. Blair v. State Ind. Acc. Com., supra, 133 Or. at 455, 288 P. 204. In Clark v. U.S. Plywood, 288 Or. 255, 260, 605 P.2d 265 (1980), for example, we noted that an employee who suffers an appendicitis attack on-the-job is not entitled to workers' compensation benefits; neither is a self-inflicted on-the-job injury compensable, pursuant to ORS 656.156(1).

The question then is whether there is a sufficient causal connection between claimant's unexplained fall and his employment, such that the injury "arose" from the employment. This is truly a case of an unexplained fall because the cause of the accident cannot be directly established. Professor Larson states the problem this way:

"All risks causing injury to a claimant can be brought within three categories: risks distinctly associated with the employment, risks personal to the claimant, and 'neutral' risks--i.e., risks having no particular employment or personal character. Harms from the first are universally compensable. Those from the second are universally noncompensable. It is within the third category that most controversy in modern compensation law occurs. The view that the injury should be deemed to arise out of employment if the conditions of employment put claimant in a position to be injured by the neutral risk is gaining increased acceptance." 1 A. Larson, supra, § 7.00 at 3-11. ⁶

In the present case, the Court of Appeals agreed with the findings of the Workers' Compensation Board that the medical reports and lay testimony persuasively eliminated all idiopathic factors of causation. Under the Court of Appeals' neutral risk analysis, a fall due to idiopathic causes is not compensable; neither is one where it is equally possible that its cause was idiopathic or work-related. However, a truly unexplained fall that occurs on the employer's premises, during working hours, while the employee is performing required duties is compensable if the employee can eliminate idiopathic causes. We agree.

This result is not inconsistent with the cases petitioners cite. In Mackay v. SAIF, 60 Or.App. 536, 654 P.2d 1144 (1982), recovery was denied for an unexplained fall at the work place. However, the present case is distinguishable from Mackay because here claimant has eliminated any idiopathic causes for his fall. In Mackay, the court found that the claimant's evidence showed no more than that it was equally possible that the cause of her fall, her buckling knee, was idiopathic as that it was work-connected. That was not enough to satisfy her burden of proof that the cause of her fall was work-connected and, therefore, her fall was not compensable. Mackay v. SAIF, supra, at 539, 654 P.2d 1144.

So, too, in Puckett v. Wagner, 6 Or.App. 269, 487 P.2d 897 (1971), which has been cited as an "unexplained fall" case, there was evidence of idiopathic causation. The claimant in Puckett had been sent home early from work because he had been drinking. While leaving the employer's premises, he fell and was injured. The personal risk of voluntary intoxication removes Puckett from the neutral risk category.

Similarly, the claimant in Raines v. Hines Lbr Co., 36 Or.App. 715, 585 P.2d 721 (1978), died from a heart attack for which there were two equally plausible explanations. Decedent's employer presented medical evidence of his pre-existing arteriosclerotic heart condition and hypertension. His widow offered the explanation that he was subjected to on-the-job stress prior to his heart attack. Because the evidence could support both theories equally, the Court of Appeals held that the decedent's widow had not met her burden to prove work-connection.

Otto v. Moak Chevrolet, 36 Or.App. 149, 583 P.2d 594 (1978) rev. den., 285 Or. 319 (1979), was not an unexplained fall or death case. Nevertheless, petitioner cites it, so we have considered it carefully. The Court of Appeals in Otto, held that a claimant who was...