Unexplained Injuries and the “Arising Out Of” Condition of Liability Under the Wisconsin Worker’s Compensation Act
Section 102.03 of the Wisconsin Statutes sets forth the basic requirements for a compensable injury under the Wisconsin Worker’s Compensation Act. The statute provides that liability shall exist only where five requirements "concur." Those five requirements are as follows:
- The employee must sustain an injury;
- At the time of the injury, both the employer and the employee must be “subject to the provisions of this chapter”;
- At the time the injury occurs, the employee must be “performing service growing out of and incidental to his or her employment”;
- The injury must not be intentionally self-inflicted; and
- The accident or disease causing injury must be one which “arises out of the employee’s employment.”
While all five conditions of liability must be present, for purposes of determining whether or not a particular injury is “work related” under the Act, two of these conditions are particularly important. First, the employee must be performing service growing out of and incidental to the employment at the time the injury occurs. In other words, the employee must be within the “scope of the employment” at the time the injury occurs. Second, the injury must “arise out of” the employment. The focus of this Article is on this second, "arising out of" requirement.
II. The "Arising Out Of" Requirement
The "arising out of" requirement refers to the causal origin of an injury, but it is not synonymous with "caused by the employment." The Wisconsin Supreme Court has stated that "an accident arises out of the employment when by reason of the employment the employee is present at a place where he is injured through the agency of a third person, an outside force or the conditions of the location constituting a zone of special danger."
It is important to recognize that in a worker’s compensation case in Wisconsin, the employee has the burden of proving all the elements necessary to establish a compensable injury. Consequently, it is necessary for the employee to establish that the injury arises out of the employment. Even when an employee is performing services growing out of and incidental to employment at the time of an injury, the employee is still also required to prove that the injury arose out of the employment.
In order to show that an injury arose out of the employment, the employee must introduce "evidence of a cause related to the employment." In evaluating liability in a worker’s compensation case, it is essential that this consideration not be overlooked. If an injury is “idiopathic”—that is, one which arises from a condition solely personal to the employee—it is not compensable.
Given the fact that the burden of proof falls upon the employee to show that the injury arises out of the employment, if the employee cannot identify a cause, the injury is considered "idiopathic" and unexplained and is therefore not compensable under the Worker’s Compensation Act. The absence of a work-related explanation for an injury makes it just as likely that the injury arises out of the employment as that it does not.
III. Wisconsin Generally Does Not Recognize a Presumption That Injuries Taking Place During Employment "Arise Out Of" that Employment.
The Wisconsin Supreme Court has declined to recognize a presumption that an injury which occurs within the scope of the employment, but which otherwise is unexplained, arises out of the employment. In Nielsen v. Industrial Commission, the supreme court stated: “Human experience does not attest all accidents or a sufficient share of them, occurring on an employer’s premises, arise out of the employment as that term has been defined by this court.”
However, although a broad “arising out of” presumption has been rejected by the appellate courts in Wisconsin, such a presumption does exist in certain circumstances. Wisconsin recognizes the “positional risk doctrine.” When an employee is required to work in a hazardous situation, an injury sustained by the employee is presumed to arise out of the employment. In Cutler-Hammer, Inc. v. Industrial Commission, the supreme court, applying the “positional risk doctrine,” recognized that a concrete stairway created a zone of special danger and an employee’s fall down those steps was an accident which arose out of the employment.
IV. Recent Cases Involving the "Arising Out Of" Requirement
In 2011, 2012, and into 2013, the author of this article had a string of very interesting cases involving the “arising out of” requirement and unexplained injuries: Balaeva v. Aurora Health Care, Pattengale v. West Allis Memorial Hospital, and Korrison v. Aurora Medical Center. All three cases were litigated and went to decision before both the Department of Workforce Development and the Labor and Industry Review Commission.
A. Balaeva v. Aurora Health Care
In Balaeva, the employee was attending an instructional meeting at work. She was not feeling well and excused herself from the meeting to use the restroom. Shortly after she left the room, the other meeting attendees heard a crash. The employee was found on the floor near a short flight of stairs and near the reception desk in the area of the hospital where the meeting was being conducted. She had fallen and had sustained a very significant head injury. She claimed that she was permanently and totally disabled as a result of the claimed injury.
The employee had no recollection of the fall. The last thing she remembered was that she was in a hallway going toward the classroom. The employee claimed that she was on the stairs when she fell and consequently that she was in a zone of special danger at the time the injury occurred. However, there was no evidence that the employee was on the stairs when she fell.
The evidence produced at the hearing demonstrated that the employee did not necessarily have to use the stairs in order to reach the restroom. The department dismissed the application for hearing on the basis that the employee failed to meet her burden of proof, stating that it was “left as hypothetical conjecture that her injury was caused by her hitting her head on a desk or falling down the steps.” The department concluded that the employee’s fall “remain[ed] unexplained,” and dismissed the application for hearing on that basis.
The case was appealed to the Labor and Industry Review Commission. The commission affirmed the findings of fact and order of the department. In its decision, the commission discussed the concept of a zone of special danger. The commission stated that if a worker is present at a place where he or she is injured through the conditions of a location constituting a zone of special danger, the positional risk doctrine applies, and the injury is compensable. Quoting Cutler-Hammer, Inc., the commission stated:
The core of the idea is that an accident arises out of the employment when the connection between the employment and the accident is such that the obligation or circumstances of the employment places the employee in the particular place at the particular time when he is injured by a force which is not solely personal to him.
The commission pointed out that the Cutler-Hammer, Inc. case had involved a fall down a flight of three steps. However, in Cutler-Hammer, Inc., the record was clear that the worker had actually fallen on the steps. In Balaeva, the commission concluded that the record was “nowhere near as certain.” The commission observed that one inference that might have been drawn from the evidence was that the employee tripped or fell while coming down the stairs to return to the conference room. However, the commission noted that the evidence established that the employee had complained of gastric distress earlier in the day and that it was just as reasonable to infer that the employee did not use the stairs at all to go to the bathroom just prior to her fall.
Accordingly, the commission concluded that the record was insufficient to support a conclusion that the employee fell or tripped as a result of the stairs themselves which would have placed her in a zone of special danger when the injury occurred. The commission also stated that there was insufficient evidence to conclude that the employee hit her head on the reception desk when she fell, thereby aggravating the effects of the fall. On this point, the commission cited Larson’s treatise on worker’s compensation law:
[T]he basic rule, on which there is now general agreement, is that the effects of such a fall are compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle.
The commission stated that the situation described by the Larson treatise was distinguishable from a person falling from a standing height to the bare floor or level ground, “which in Wisconsin would not be compensable under the idiopathic fall doctrine.”
B. Pattengale v. West Allis Memorial Hospital
In Pattengale, the employee was an 85-year-old certified nursing assistant. She sustained a fall while exiting an elevator at work. The fall was unwitnessed. The employee described a mechanism of injury in which her “shoes stuck to the floor” and she then “pitched forward” as she was getting off of the elevator. There was also a suggestion in some of the treatment records that the employee tripped or slipped as she was getting out of the elevator.
At the hearing, the employee testified that she tripped on something and believed it was the lip of the elevator. Although she denied her shoes caused her to fall, there was evidence that she may have attributed her fall to the shoes she was wearing at the time the fall occurred. She was wearing open-heeled shoes with rubber soles, and there was disputed evidence that the employee’s daughter “threw out” those shoes after the fall occurred. In any event, the employee admitted that she never wore those shoes again because she was afraid that she would fall.
The employee’s testimony regarding the fall was summarized as follows:
[T]he applicant was uncertain if it was her right or left foot that got caught, speculating that it was her right. She testified that she was on the elevator, she was close to the door and tripped when she started out of the elevator. There was nothing sticking up from the floor and there was nothing about the flooring surface either inside or outside that she thought contributed to the fall. She did not know of anything sticky on the floor. In terms of the fall, she conceded, in cross, that all she remembered was “pitching forward.”
The employee was also “uncertain how high the lip was and, ultimately was not sure if she tripped on the lip or if her foot got stuck.”
Following the hearing, an administrative law judge (ALJ) of the Department of Workforce Development denied the claim. In the decision, the ALJ stated: “[T]he problem with this claim is that the applicant really does not know how or why she fell. She has provided various explanations at different times and readily conceded at hearing that she really does not know what caused her to fall.” Interestingly, the ALJ observed: “It may well have been the applicant’s shoes that caused her to fall which is a condition personal to her.” The ALJ concluded that the employee failed to establish by sufficient credible evidence that her fall arose from the employment, and the application for hearing was dismissed.
The employee appealed the decision to the Labor and Industry Review Commission. The commission reversed the findings and order of the department and determined the employee had established a work-related cause for her fall. The commission remanded the case to the Worker’s Compensation Division for a determination regarding the extent of the benefits due the employee, and the case was subsequently settled on the basis of a full and final compromise. In its decision, the commission stated:
An idiopathic fall—one that is due to a personal condition not caused or aggravated by employment—is not compensable. Peterson v. Industrial Commission, 269 Wis. 44, 49 (1955). Similarly, a truly “unexplained fall”—one attributable to neither an idiopathic/personal cause nor a cause related to employment—is not compensable even if it occurs while a worker is performing services for an employer. Briggs and Stratton v. LIHR Department, 43 Wis. 2d 398, 404 (1969). In order to establish that she was not injured by a force solely personal to her, the applicant must prove that her fall was not solely idiopathic or unexplained in nature. Kraynik v. Industrial Comm’n, 34 Wis. 2d 107, 111, 148 N.W.2d 668, 670 (1967).
The commission concluded that the employee’s fall was not idiopathic. She was not suffering from a condition solely personal to her that would cause such a fall. The commission disagreed with the suggestion that the employee’s footwear caused the fall, noting the employee had worked for a period of three hours without falling and that the employee had testified that other workers wore such footwear. The commission disagreed with the ALJ’s conclusion that the fall was unexplained, and stated that all of the descriptions of the injury provided by the employee had involved an explanation that her foot stopped in an abrupt fashion and a she quickly pitched forward as she was crossing the elevator threshold.
Two members of the commission joined in the majority opinion reversing the findings and order of the ALJ. Despite the fact that the employee specifically testified there was nothing sticking up from the floor and nothing about the flooring surface either inside or outside the elevator that contributed to the fall, the commission was “persuaded that the applicant’s foot stopped as she was exiting the elevator” and that the fall was “explained by a cause related to the employment, her foot catching on the elevator gap/lip threshold.” It is notable that the commission was “persuaded” in this fashion despite the employee’s admission at the hearing, as noted by the ALJ, that she did not know how the fall had occurred.
The third member of the commission wrote a dissenting opinion stating that she agreed with the department that the fall was unexplained and therefore not compensable. The dissenting commissioner noted that in the initial version of the events provided by the employee she had stated that her shoe stuck to the floor, but that the employee’s explanation “had morphed to the point where she was now saying that she had tripped over the lip of the elevator gap.” The dissenting commissioner noted that the employee had ultimately testified at the hearing that she was not sure if she tripped or her foot got stuck and was not even sure which foot was involved. The dissenting commissioner also pointed out that the evidence did not “establish that the surface between the elevator and main floor was not level or that the flooring and gap was slippery, sticky or that any other impediment existed resulting in the fall.”
C. Korrison v. Aurora Medical Center
Korrison involved a nurse who was walking in a patient’s room and fell to the floor, sustaining injuries to her shoulder, neck, and back. At hearing, the employee testified that, immediately before the fall, her foot stuck to the ground and that this caused her to fall. She testified that she really did not know how she fell, and that the floor was clean, dry, level, and well-maintained. She testified that she did not see or feel any sticky substance on the floor. She testified that her shoes did not stick to the floor as she was walking before she fell, and she did not hear any sound suggesting that her shoes were sticking to the floor as she walked across the floor before she fell. She testified that there were no objects or obstacles on the floor that caused or contributed to her fall.
Following the hearing, the department denied the claim and dismissed the application for hearing. The administrative law judge who decided the case noted that the employee had the burden of proving all the facts necessary to recover worker’s compensation benefits and that a compensable work injury must arise out of the employment.
The case was appealed to the Labor and Industry Review Commission, and the commission affirmed the findings and order of the department. The commission began its analysis by considering whether or not the employee sustained an idiopathic injury. The commission concluded that the fall was not idiopathic, noting there was no evidence that the employee was wearing defective shoes or that she suffered from a disease, physical disability, or personal condition that caused the fall.
The commission then turned to whether the employee had established that the fall arose from the employment, stating, “if the fall is unexplained, then the commission must decide whether there is sufficient evidence in the record to draw an inference of a hazard or zone of special danger.” The commission noted that the employee must produce sufficient evidence for the commission’s decision not to rest on speculation and conjecture.
The commission observed that the employee had not established a definite explanation of how or why she fell. It placed significant emphasis on a recorded statement the employee had provided to the insurance carrier to the effect that she really did not know what caused her to fall. It concluded that the injury was unexplained and that “any attempt to find otherwise would rest upon speculation and conjecture.”
In its decision, the commission distinguished Pattengale and another recent commission decision,Denamur v. Larry’s Markets, Inc., stating that in the case before it, the employee was not even sure if she was ambulating around or over anything at the time the fall occurred. The commission stated: “The applicant, while not incredible, seems to be grasping for an explanation herself,” and noted that its approach was consistent with its prior denials of compensation based on unexplained falls.
The commission also found that there was not sufficient evidence to find that the injury occurred in a zone of special danger, commenting that a level surface is not an area of special danger. The commission took note of the employee’s assertion that she fell because the floor had been waxed but that no evidence had been presented that the wax created a dangerous surface. The commission stated: “Without more, the commission will not find a hazard or zone of special danger based upon the simple fact that the floor was waxed in the past.”
One member of the commission dissented to the majority opinion. The dissenting commissioner indicated that he believed the evidence was sufficient to find that the injury was explained. The commissioner suggested that he would find the injury compensable because the employee was performing services for the employer at the time the injury occurred and because the fall was not idiopathic. Despite the dissenting commissioner’s recognition that the employee “was not able to identify what precisely stopped her foot,” he stated the employee knew where she fell and knew what caused her to fall. He expressed concern that decisions addressing unexplained falls over-emphasize the requirement of a precise explanation of the cause of a fall, and he suggested this was detrimental to the purpose of the Worker’s Compensation Act because it could result in a denial of benefits “based upon honest confusion, limited recollection, or an incomplete investigation.” The dissenting commissioner indicated that if the employee had not been at work, the fall would not have occurred, and that this should be a sufficient explanation.
These three cases demonstrate the importance of the “arising out of” condition of liability in a worker’s compensation case. It is not sufficient that an injury occur during the course of employment in order to establish compensability under the Worker’s Compensation Act. An early, thorough investigation and statement of the employee can be critical in establishing an unexplained injury defense. In evaluating the compensability of a claimed work injury, it is essential to recognize that the employee has the burden of establishing that the injury is attributable to an accident or disease that arises out of the employment. The inability of an employee to establish a work-related factor or zone of special danger represents a failure of the employee's burden of proof and should result in a dismissal of the claim.
 Wis. Stat. § 102.03(1).
 Wis. Stat. § 102.03(1)(a).
 Wis. Stat. § 102.03(1)(b).
 Wis. Stat. § 102.03(1)(c).
 Wis. Stat. § 102.03(1)(d).
 Wis. Stat. § 102.03(1)(e).
 Weiss v. City of Milwaukee, 208 Wis. 2d 95, 107, 559 N.W.2d 588 (1997).
 Id.; Cutler-Hammer, Inc. v. Industrial Commission, 5 Wis. 2d 247, 254, 92 N.W.2d 824 (1958).
 Kraynik v. Industrial Commission, 34 Wis. 2d 107, 110-11, 148 N.W.2d 668 (1967). In contrast, for example, the federal Longshore and Harbor Worker’s Compensation Act provides a presumption in favor of work causation. 33 U.S.C. § 920(a).
 Kraynik, 34 Wis. 2d at 111.
 Briggs & Stratton Corp. v. ILHR Department, 43 Wis. 2d 398, 406, 168 N.W.2d 817 (1969).
 Peterson v. Industrial Commission, 269 Wis. 44, 48, 68 N.W.2d 538 (1955).
 Nielsen, 14 Wis. 2d at 118.
 Kraynik, 134 Wis. 2d at 112.
 Cutler-Hammer, Inc., 5 Wis. 2d at 254.
 Balaeva v. Aurora Health Care, WC Claim No.: 2007-031880 (LIRC, February 28, 2012).
 Pattengale v. West Allis Memorial Hospital, WC Claim No.: 2010-021311 (LIRC, July 26, 2012).
 Korrison v. Aurora Medical Center, WC Claim No.: 2004-040437 (LIRC, June 6, 2013).
 Balaeva, WC Claim No.: 2007-031880, at 2 (citing Cutler-Hammer, Inc., 5 Wis. 2d at 253).
 Id. at 3.
 Id. at 3 (citing 1 Larson Workers’ Compensation Law, § 9.01 (LexisNexis 2011)).
 Id. at 3.
 Pattengale, WC Claim No.: 2010-021311, at 2.
 Id. at 2-3.
 Id. at 3.
 Id. at 4.
 Id. at 5.
 Id. at 7-8 (dissenting opinion).
 Korrison, WC Claim No.: 2004-040437, at 2.
 Id. (citing R.T. Madden, Inc. v. Industrial Commission, 43 Wis. 2d 528, 548, 169 N.W.2d 73 (1969)).
 Id. at 2-3.
 Id. at 3.
 Denamur v. Larry’s Markets, Inc., WC Claim No.: 2010-028002 (LIRC, July 30, 2012), aff’d sub. nom., Larry’s Markets v. Denamur and LIRC, Case No. 12-CV-1198 (Wis. Cir. Ct. Outagamie County March 15, 2013)).
 Korrison, WC Claim No.: 2004-040437, at 3.
 Id. (citing Nielsen, 14 Wis. 2d 112; Brickson v. ILHR Department, 40 Wis. 2d 694, 162 N.W.2d 600 (1968); Durkee v. Marathon County, WC Claim No.: 91-043764 (LIRC, April 16, 1992)).
 Id. at 3-4.
 Id. at 5 (dissenting opinion).