Sheldon v. U.S. Bank (In re Comp. of Sheldon)

• Decision Date: 23 May 2019
• Docket Number: SC S064478
• Citation: 364 Or. 831,441 P.3d 210
• Parties: In the MATTER OF the COMPENSATION OF Catherine A. SHELDON, Claimant. Catherine A. Sheldon, Respondent on Review, v. US Bank, Petitioner on Review.
• Court: Oregon Supreme Court

364 Or. 831

441 P.3d 210

In the MATTER OF the COMPENSATION OF Catherine A. SHELDON, Claimant.Catherine A. Sheldon, Respondent on Review,

v.US Bank, Petitioner on Review.

SC S064478

Supreme Court of Oregon.

Argued and submitted September 21, 2017.

May 23, 2019

Jerald P. Keene, Oregon Workers' Compensation Institute, LLC, Oceanside, argued the cause and filed the briefs for petitioner on review.

Spencer D. Kelly, Welch Bruun & Green, Portland, argued the cause and filed the brief for respondent on review.

Jodie Phillips Polich, Milwaukie, filed the brief for amicus curiae Oregon Trial Lawyers Association.

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices.^**

DUNCAN, J.

In this workers' compensation case, claimant injured her shoulder after falling in the lobby of the office building where she worked. Claimant contends that she suffered a compensable injury that arose out of employment because her fall was unexplained and occurred at work. Employer, US Bank, contends that the injury was not unexplained because claimant failed to eliminate idiopathic factors related to her personal medical conditions that might have caused her fall.¹

The Workers' Compensation Board (the board) concluded that claimant failed to establish that her fall was unexplained. The Court of Appeals held that the board applied the wrong standard, vacated the board's decision, and remanded the case to the board to apply the standard in the manner directed by that court. Sheldon v. US Bank , 281 Or. App. 560, 571, 381 P.3d 1006 (2016). Although we disagree with the standard expressed by the Court of Appeals, we nevertheless reach the same result for the reasons explained below. We therefore affirm the decision of the Court of Appeals, vacate the board's decision, and remand the case to the board.

Some legal background is useful before describing the facts and procedural history in this case. A claimant bears the burden of proving that his or her injury is compensable. ORS 656.266(1). "A ‘compensable injury’ is an accidental injury *** arising out of and in the course of employment requiring medical services or resulting in disability or death." ORS 656.005(7)(a). "The phrases ‘arise out of’ and ‘in the course of’ are two elements of a single inquiry into whether an injury is work-related. This is called the ‘work-connection’ test." Redman Industries, Inc. v. Lang , 326 Or. 32, 35, 943 P.2d 208 (1997) (quoting Fred Meyer, Inc. v. Hayes , 325 Or. 592, 596, 943 P.2d 197 (1997) ). "The ‘in the course of’ employment prong requires that the time, place, and circumstances of the injury justify connecting the injury to the employment."

Robinson v. Nabisco, Inc. , 331 Or. 178, 186, 11 P.3d 1286 (2000). The "arising out of" employment prong "requires that ‘some causal link exist’ between the worker's injury and his or her employment." Id. (quoting Krushwitz v. McDonald's Restaurants , 323 Or. 520, 526, 919 P.2d 465 (1996) ).

Under the unitary test for work-connectedness, a claimant cannot establish a compensable injury unless both the "arising out of" employment prong and the "in the course of" employment prong are satisfied to at least "some degree." Redman Industries , 326 Or. at 35, 943 P.2d 208. The board in this case concluded that claimant failed to prove, even to some degree, that her injury arose out of employment and, as a result, never reached the question of whether claimant established that her injury occurred in the course of employment. Thus, the dispute before us centers on the "arising out of" employment prong.

To establish that an injury arose out of employment, a claimant must establish that the injury "had its origin in a risk connected with the employment or rationally and naturally incidental thereto." Phil A. Livesley Co. v. Russ , 296 Or. 25, 32, 672 P.2d 337 (1983). There are three types of risks: employment risks, personal risks, and neutral risks. Id. at 29-30, 672 P.2d 337. Employment risks are those risks that are "distinctly associated with the employment." Id. (internal quotation marks omitted). Personal risks are "risks personal to the claimant." Id. (internal quotation marks omitted). And neutral risks are risks that are neither employment risks nor personal risks. Id. at 30, 672 P.2d 337.

An injury arising out of employment is not confined to injuries that result from employment risks. Instead, an injury arises out of employment if either (1) the injury results from an employment risk or (2) the injury results from a neutral risk where " ‘the conditions of employment put [a] claimant in a position to be injured.’ " Panpat v. Owens-Brockway Glass Container, Inc. , 334 Or. 342, 350, 49 P.3d 773 (2002) (quoting Livesley , 296 Or. at 29-30, 672 P.2d 337 ). An injury that results solely from a personal risk, however, does not arise out of employment and is therefore not compensable. Id.²

As relevant to this case, neutral risks where the conditions of employment put a claimant in a position to be injured include unexplained falls that occurred on the job. Id. at 350, 49 P.3d 773 ("Unexplained accidents are a classic example of neutral risks[.]" (Internal quotation marks omitted.)).³ Thus, a claimant may prove that an injury arose out of employment if the injury resulted from an unexplained fall that occurred on the job. See Livesley , 296 Or. at 32, 672 P.2d 337 (compensating injuries resulting from an unexplained fall that occurred on the job).⁴

Personal risks include a claimant's personal medical conditions, such as conditions that can lead to an idiopathic fall. See, e.g. , Hamilton v. SAIF , 256 Or. App. 256, 259, 302 P.3d 1184 (2013), rev. den. , 354 Or. 148, 311 P.3d 525 (2013) ("[T]he parties agree that the fall was idiopathic in nature and that the risk of the fall that led to claimant's injuries was personal to claimant[.]"); see also 1 Larson's Workers' Compensation Law § 4.02 at 4-2 (describing medical conditions as personal risks). A claimant cannot prove that an injury arose out of employment if the injury resulted solely from an idiopathic fall.

The distinction between an unexplained fall and an idiopathic fall frames the parties' dispute in this case. Claimant fell on her way to work while walking through the lobby of an office building where employer leased office space. As a result of the fall, claimant fractured a bone in her shoulder. Paramedics responded, and claimant told them that she had been "walking and then her foot got caught and she tripped and fell." Claimant was transported by ambulance to a hospital, and she told an emergency room nurse that "her foot rolled and she tripped and fell."

Claimant filed a workers' compensation claim, which employer denied. Claimant then requested a hearing before an administrative law judge (ALJ). At the hearing, claimant testified that she fell because she tripped over something. Claimant did not know what caused her to trip, but she suspected that her foot got caught on the lip of a floor tile because she was unable to identify any other hazards in the lobby that could have caused her fall. Claimant admitted that the tile lip was not "real big." Employer's investigator determined that the tile had "the slightest of a lip," probably around 1/16th of an inch, a measurement that sounded correct to claimant.

Employer contended that claimant's injuries were not compensable because her fall could have been caused by idiopathic factors, specifically, claimant's diabetes

and obesity. In support of its contention, employer submitted a letter opinion by a physician, Dr. Bell. Bell had reviewed claimant's medical records but had never examined claimant personally. Based on her review of claimant's records, Bell opined that claimant's diabetes was a "potential contributing cause" in her fall because diabetes"is known to cause peripheral neuropathy" and "[p]eripheral neuropathy in the lower extremities *** affects sensation and reflexes." Bell also opined that claimant's obesity was "a potential contributing factor" in her fall because it "most likely affected her balance and mobility." Bell concluded that "symptomatic manifestations of diabetes and obesity could have caused [claimant] to fall." She further concluded that it was "at least equally possible [claimant's] fall *** was caused by idiopathic problems associated with diabetes and/or obesity as it was due to risks associated with employment."⁵

Claimant testified that she had never been diagnosed with peripheral neuropathy

. She admitted that she had experienced "some tingling" in her feet in the past, but she denied that that tingling had ever caused her to fall. Claimant testified that she had never experienced balance or mobility problems because of her obesity

. In addition, she reported that she had scored in the "high 90 percent range" in post-injury balance testing and was determined not to be at risk of falling. In her testimony, claimant also mentioned an additional medical condition; she reported that she had broken her ankle decades earlier and had experienced some intermittent weakness and swelling in that ankle.

Claimant submitted a letter opinion and testimony from her primary care physician, Dr. Kelly. Kelly had been claimant's primary care physician for 10 years before her fall. He stated that claimant had no history of problems with balance or mobility and that he had observed her walking without any impaired balance or mobility on numerous occasions. Kelly also stated that, although claimant was taking medication for hypertension that can cause lightheadedness, she had never reported that the medication had caused her to feel lightheaded. Kelly acknowledged that claimant's diabetes, obesity, ankle weakness, and medication had the "potential" to have contributed to her fall. But he emphasized that he had "no way of knowing" either whether they actually contributed to the fall or whether it was "equally possible" that the fall was caused by personal risks as risks...