Sheldon v. U.S. Bank (In re Comp. of Sheldon)
| Decision Date | 12 October 2016 |
| Docket Number | A156285 |
| Citation | 381 P.3d 1006,281 Or.App. 560 |
| Parties | In the Matter of the Compensation of Catherine A. Sheldon, Claimant. Catherine A. Sheldon, Petitioner, v. US Bank, Respondent. |
| Court | Oregon Court of Appeals |
Spencer D. Kelly, Portland, argued the cause for petitioner. With him on the briefs was Welch, Bruun & Green.
Jerald P. Keene, Portland, argued the cause for respondent. With him on the brief was Oregon Workers' Compensation Institute, LLC.
Before Lagesen, Presiding Judge, and Hadlock, Chief Judge, and Garrett, Judge.*
, J.
Claimant seeks review of an order of the Workers' Compensation Board upholding employer's denial of her injury claim. At the time of the injury, claimant worked at premises leased by employer. While walking through the building's lobby on her way to work, claimant fell and sustained a fractured shoulder
. She filed a claim, which employer denied. An administrative law judge (ALJ) upheld the denial on the ground that the lobby was not under the employer's control, and that claimant's injury therefore had not occurred within the course of her employment.
The board affirmed on a different ground, concluding that claimant had failed to establish that her injury “arose” from her employment because she did not persuasively eliminate idiopathic1 reasons for her fall. On judicial review, claimant raises two assignments of error. We address only the second assignment, in which claimant argues that the board erred in concluding that she failed to persuasively eliminate idiopathic reasons for her fall. Reviewing the board's order for substantial evidence, substantial reason, and legal error, Luton v. Willamette Valley Rehabilitation Center , 272 Or.App. 487, 490, 356 P.3d 150 (2015)
, we conclude that the board applied an incorrect legal standard and, accordingly, we vacate and remand.
The relevant facts are undisputed. Claimant arrived in the morning for work and was walking through the lobby of the building where employer leases office space, on her way to the elevator. She slipped or tripped and fell forward, sustaining an injury to her left shoulder that required transport by ambulance to the emergency room. Claimant's accounts of how she fell varied. She told the responding paramedics that she was “walking and then her foot got caught and she tripped and fell.” According to an emergency room nurse, claimant said that “her foot rolled and she tripped and fell.” Claimant later told employer's investigator that she fell when “her foot caught someplace on the tile floor.”
She separately told an examining physician that she was walking into work “when she slipped and fell somehow.”
Employer denied claimant's workers' compensation claim; claimant appealed. Employer posited that the fall was caused by idiopathic factors associated with claimant's obesity
. Claimant's medical records were reviewed by Dr. Bell on behalf of employer. In a letter opinion, Bell noted that claimant suffers from diabetes and “severe obesity ” and opined that “it is 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.” Bell explained that diabetes is known to cause peripheral neuropathy, which affects sensation and reflexes in the lower extremities. Bell also opined that claimant's “documented proportions most likely affected her balance and mobility” and that her “performance in activities of daily living, including walking across a lobby, were diminished in some manner by her obesity.”
In a different letter opinion, claimant's own physician since 2002, Dr. Kelly, noted that claimant has no history of peripheral neuropathy
and opined that claimant's diabetes played “absolutely no role” in her fall. Kelly agreed that obesity can, in some people, cause problems with balance and mobility but stated that claimant has no history of falling or experiencing such problems because of her weight.
At a hearing before an ALJ, claimant testified that, although she had never been diagnosed with peripheral neuropathy
, she had experienced “some tingling” in her feet in the past. Claimant denied, however, that that tingling had ever caused her to fall. Claimant also testified that she broke her ankle when she was 18 years old2 and that she occasionally experiences some resultant ankle weakness. Nevertheless, claimant testified that she had scored in the “high 90[th] percent range” in post-injury balance testing and was determined not to be at risk for falling. At a deposition, Kelly testified that, although claimant's reported tingling sensation “could be” consistent with peripheral neuropathy, numerous other medical explanations exist for tingling in the feet of a diabetic. Kelly also acknowledged that several additional factors—claimant's obesity
, ankle weakness, and antihypertensive medication—had the “potential” to have contributed to claimant's fall. Kelly emphasized, however, that he had “no way of knowing” whether any of those factors actually contributed to claimant's fall, or whether it was “equally possible” that claimant's fall was caused by personal risks as work-related factors.
The ALJ concluded that the idiopathic factors cited by employer were “speculative”:
“Claimant has provided more [than] one explanation for her fall. She either slipped, tripped or turned her ankle. Mostly, she has described catching her foot on the 1/16th inch lip of floor tile. The employer contends that there are a number of personal/idiopathic risk factors which explain Claimant's fall as well as Claimant's theory does. However, Dr. Bell only suggested that it was ‘possible’ for personal factors to have contributed to Claimant's fall. Dr. Kelly recognizes that peripheral neuropathy
, obesity, ankle weakness and [antihypertensive] medications are potential causes for falls but he has no information from which to conclude that in Claimant's case these are more than potential causes. Since the alleged personal/idiopathic risks offered are speculative, they are less than equally likely to have caused the fall as Claimant's explanation of a tripping incident. I find therefore that Claimant has eliminated idiopathic causes for her fall.”
The ALJ next concluded, however, that claimant had failed to show that the injury occurred in the “course of” employment. The basis for that conclusion was the finding that claimant fell in an area of the building, the lobby, that was not within employer's control.
, morbid obesity, ankle weakness and antihypertensive medications) caused, or contributed to, claimant's fall. We acknowledge that, while he was claimant's primary care physician, Dr. Kelly found no evidence of peripheral neuropathy, loss of balance due to obesity, ankle weakness, or lightheadedness due to antihypertensive medications. However, despite the lack of specific findings, Dr. Kelly unequivocally concluded that those idiopathic factors could not be excluded as a possible cause of claimant's fall. Specifically, he confirmed that those four personal risk factors ‘have the potential to have contributed to [claimant's] fall.’
“Under such circumstances, we find that claimant did not persuasively eliminate the possible idiopathic reasons for her fall, as described by Drs. Bell and Kelly.”
(Internal citations omitted.) The board concluded that claimant's fall was not “truly unexplained” and affirmed the denial of the claim. On appeal, claimant assigns error to the board's conclusion that claimant failed to persuasively eliminate idiopathic factors as possible causes for her fall.3
(Quoting SAIF v. Uptegrove , 226 Or.App. 45, 48, 202 P.3d 264 (2009)
(emphases in Uptegrove ).). A claimant has the burden of proving compensability by a preponderance of the evidence. ORS 656.266 ; Blank , 252 Or.App. at 557, 287 P.3d 1272.
An injury that is unexplained and occurs in the course of employment is presumed, as a matter of law, to arise out of the employment. Uptegrove , 226 Or.App. at 49, 202 P.3d 264
(citing Phil A. Livesley Co. v. Russ , 296 Or. 25, 30, 672 P.2d 337 (1983) (Livesley )). Whether an...
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Sheldon v. U.S. Bank (In re Comp. of Sheldon)
...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 ......