NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
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A more or less advanced decay and feebleness of the intellectual faculties; that weakness of mind which, without depriving the person entirely of the use of his reason, leaves only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to physical wants and habits.
Legal Update by Attorney Alison Stewart and Law Clerk Morgan Todd Borron
When a worker falls at work, and the fall cannot be
attributed to an acute event caused by the work (e.g., tripping over an object,
slipping on ice or water, losing balance while carrying an object, etc.), the
fall will likely fall into one of two categories: idiopathic or unexplained.
These types of falls require additional analysis into compensability. An idiopathic
fall is one that originates from a purely personal condition to the
claimant. See Koehler Elec. v. Wills, 608 N.W.2d 1, 4 (Iowa 2000)
(citing Arthur Larson, Workmen’s Compensation Law, sec. 12.11, at 3-356
(1994)); Bluml v. Dee Jay’s, Inc., 920 N.W.2d 82, 84 (Iowa 2018). An unexplained
fall is where a claimant trips, slips, or falls for no specifically
identifiable reason. Bartle v. Sidney Care, Inc., 672 N.W.2d 333, 2003
WL 22346956 at *2. (Iowa Ct. App. Oct. 15, 2003).
There are different standards that apply to these different
types of falls. In Bluml, the worker sustained an idiopathic fall.
The Iowa Supreme Court determined that “the claimant should have both the
burden and the opportunity to meet the increased-risk test[,]” and “may recover
if he or she proves that ‘a condition of his [or her] employment increased the
risk of injury.’” Bluml, 920 N.W.2d at 91 (quoting Koehler Elec.,
608 N.W.2d at 5). The Court noted that for unexplained falls, the
actual-risk rule is the appropriate standard. Bluml, 920 N.W.2d at fn.1.
Under the actual-risk doctrine, an injury is compensable “as long as the employment subjected [the] claimant to the actual risk that caused the injury.” Lakeside Casino v. Blue, 743 N.W.2d 169, 176 (Iowa 2007) (quoting Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law, sec. 3.04, at 3-5 (2007)). “[U]nder the actual-risk doctrine, the injury must result from a condition, risk, or hazard of employment.” Murray as Conservator of Meyers v. Lazer Spot, Inc., No. 21004833.01, 2022 WL 16826433 at *11 (Iowa Workers’ Comp. Comm’n Arb. Dec. July 28, 2022) (citing Lakeside Casino, 743 N.W.2d at 178; Hanson v. Reichelt, 452 N.W.2d 164, 168 (Iowa 1990)).
In Lakeside Casino, the worker was injured after she
stumbled while walking down stairs at work. The Iowa Supreme Court stated, “it
is a matter of common knowledge that stairs pose an actual risk of stumbling or
falling when traversing them, similar to the risk posed by going up and down
ladders. Although Blue did not stumble due to any particular defect in or
condition of the stairs, it is not necessary under Iowa case law that that the
stairs in Blue’s workplace be more dangerous than a typical set of steps. In
addition, it matters not that she stumbled through her own inattention. Blue’s
misstep was causally related to the fact that she was walking on stairs, and
therefore, the Commissioner rationally concluded her injury arose out of her
employment.” 743 N.W.2d at 177. The Court found that “Blue stumbled on the
stairs, the Commissioner finding that ‘the injury occurred from the
hazard of traversing stairs.’ It is this causal relationship between a
condition of Blue’s employment—the stairs—and her injury that distinguishes the
present case from those in which we have determined the employee’s injury was
not compensable” (referring to earlier discussion distinguishing McIlravy,
where EE injured knee walking across level floor; Gilbert, where EE
arguably injured neck straightening up from signing a document; Miedema,
where EE injured back turning to flush toilet; and Musselman, where EE
injured back leaning against wall for balance). Lakeside Casino, 743
N.W.2d at 177-178.
In Lapcheske v. Polk Cty., No. 5055505, 2019 WL 7559785 (Iowa Workers’ Comp. Comm’n App. Dec. Nov. 6, 2019), the worker suffered an unexplained fall on a hard floor (described as concrete, marble, or terrazzo throughout the record) resulting in an arm injury. The treating physician opined that claimant’s landing on a hard surface resulted in a “higher-energy fracture than if she would have fallen on carpet” and “elevated the severity” of the fracture; Dr. Bansal opined similarly. Lapcheske, at *3. The Commissioner stated, “Simply put, claimant’s arm was not fractured until it struck defendant’s floor. This factor distinguishes the injury from one that coincidentally occurs at work.” Id. at *4. The Commissioner held that “the hard floor in this case did present an actual risk of injury; in fact, the hard floor even went so far as to increase the risk of injury. Thus, applying the actual-risk doctrine to this case, I find the hard floor was a condition and ultimately a hazard of claimant’s employment.” Id.
In McClain v. Lennox, No. 1664566.01, 2021 WL 2624684
(Iowa Workers’ Comp. Arb. Dec. Apr. 22, 2021), affirmed 2021 WL 4447174
(Iowa Workers’ Comp. App. Dec. Sept. 22, 2021), the worker tripped and fell
landing on his right side. He thought he caught his toe on an uneven portion of
the cement floor or a corner of a pallet but was not sure. Defendants argued
that claimant’s fall was idiopathic or unexplained. The evidence presented at
hearing showed that claimant had caught his toe on some kind of crack or
obstruction, causing the fall and subsequent injury. McClain, 2021 WL
2624684 at *6. This was affirmed on appeal, with the Commissioner noting “I
therefore affirm the deputy commissioner’s finding that claimant’s fall was
explained, meaning the resulting injury arose out of and in the course of
claimant’s employment.” McClain, 2021 WL 4447174 at *1.
In 2019, there was amendment to Iowa Code section 85.61, adding that “Personal injuries due to idiopathic or unexplained falls from a level surface onto the same level surface do not arise out of or in the course of employment and are not compensable under this chapter.” Iowa Code 85.61(7)(c). In light of the subsequent case law, however, we think application of this amendment is limited to cases where the worker does not hit another object (like a wall, or a desk or shelf) on the way to the ground.
Peddicord Wharton will continue to monitor this evolving area of the law and provide relevant updates.
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SK Management, LLC v. King et al., No. 2021AP490, unpublished judge authored (Wis. Ct. App. Aug. 23, 2022 (White, J.)
The applicant, Donald King, was injured while working on a demolition project at a building owned by SK Management. SK Management was not insured, so the Uninsured Employers Fund (UEF) covered the claim. UEF then sought to recover the payments it made from SK Management. SK Management filed a reverse hearing application, claiming it was not King's employer.
King worked on a crew that was brought to the SK Management jobsite by Brian Schweinert. Background regarding the history of this relationship includes that Tim Olson, SK Management's operations manager, began hiring Schweinert, and his sole proprietorship, Mr. Phixitall, to do work such as demolition, maintenance, snowplowing, and lawn mowing at various properties managed by SK Management in 2015. Schweinert asked Olson if he could bring helpers, and Olson said he did not care. Olson generally relayed what jobs needed to be done through Schweinert, though occasionally Olson would "appear at jobsites and direct the workers himself.”
Although Schweinert brought some of his own tools to the jobsites, SK Management supplied "equipment including dumpsters, garbage bags, painter’s uniforms, dust masks, safety glasses, and gloves.” King himself brought no tools to the jobsite.
Although some early jobs were performed on a bid basis, after 2015, SK Management paid Schweinert and all of the workers procured by Schweinert, on an hourly rate set by Olson. Olson approved any merit hourly wage increases after consultation with Schweinert, and if Olson was dissatisfied with a worker’s performance, he would tell Schweinert not to bring the worker back and Schweinert would comply.
Each week, SK Management issued one check to Schweinert, encompassing all of the hours worked by Schweinert and the other workers. Schweinert cashed the check and distributed the pay appropriately. Schweinert retained $1 per hour from the other workers’ pay to cover supplies and certain tools on the jobsite.
The ALJ and the Commission both found that King was SK Management's employee, and dismissed SK Management's reverse application. The circuit court affirmed.
On appeal to the Court of Appeals, SK Management did not dispute that it was an "employer" within the meaning of Wis. Stat. § 102.04(1)(b). However, SK Management argued that it was not the employer of Schweinert or King. Instead, SK Management asserted that Schweinert was an independent contractor excluded from the definition of "employee" under Wis. Stat. § 102.07(8)(b). It also asserted that King and SK Management did not have an employer-employee relationship under the Kress Packing test. It argued that Schweinert, not SK Management, was King’s employer.
The Court of Appeals first agreed with the Commission that it was permissible to segregate the demolition work that King performed from other work—lawn mowing, snowplowing, auto repair—that Schweinert did through his independent contractor business. The Court then affirmed the Commission's finding that, with respect to the demolition work, Schweinert met only two of the nine conditions necessary to be an excluded independent contractor rather than an employee under Wis. Stat. 102.07(8)(b).
SK Management argues that even if Schweinert is not an excluded independent contractor, he was still King’s employer under the meaning of Wis. Stat. § 102.04(1)(b). The Court of Appeals rejected that argument, noting:
…because Schweinert is an employee of SK Management—which we established above when we concluded Schweinert worked for SK Management and was not an independent contractor— he cannot be an employer of another person within the performance of those same duties for SK Management. See Whittingham, 305 Wis. 2d 613, ¶¶9-10.
The Court saw the threshold issue as whether King’s employment fell under a contract for hire with SK Management. It noted that there need not be direct communication between prospective employer and prospective employee to establish the employment relationship, adding, however, that some authorization, express or implied, is needed to establish a subsequent contract of hire. The Court went on to concluded that the Commission's analysis that King worked under a contract for hire with SK Management was supported by substantial and credible evidence. It observed:
King was not hired until Olson authorized Schweinert to do so. Olson controlled how much King and Schweinert were paid. Because the record supports that Schweinert was an employee of SK Management, SK Management need not expressly hire King. It is sufficient that SK Management had actual notice of King’s work on the demolition work, as shown by Olson speaking directly to King and directing his work on occasion. Therefore, we conclude that a contract for hire was established.
The Court then turned to the issue of whether there was an employer-employee relationship between SK Management and King. It noted the Kress Packing test is applied to determine whether a person is an employee under Wis. Stat. § 102.07(4)(a).
The Court went on to conclude that King had an employee-employer relationship with SK Management, as the record reflected that SK Management, through Olson, had the right to control the details of King’s work. Olson generally relayed the details of a demolition project through Schweinert, but Olson also appeared at jobsites and directed the workers himself. Olson discussed work to be performed with King directly at some points. Olson had the final say over whether a demolition project was completed satisfactorily and would direct Schweinert and other workers to return to the jobsite as necessary to complete the work. And, SK Management, by Olson, could fire King.
Murff v. LIRC, No. 2021AP1155, unpublished judge authored (Wis. Ct. App. Aug. 23, 2022) (Brash, C.J.)
Murff began working for Aurora in at St. Luke’s Medical Center in June 2008. She worked full time as a third shift housekeeper. Murff asserts that she sustained a work injury on April 9, 2010, in a reaching/lifting incident in she felt a "pop" in her lower back.
Murff advanced three theories for recovery in her worker’s compensation claim: (1) that the work incident in April 2010 was a direct cause of her back problems; (2) that if not a direct cause, it was probable that the work incident precipitated, aggravated, and accelerated a preexisting degenerative condition beyond its normal progression; or (3) that Murff’s job duties while working for Aurora were a material contributory causative factor of her back condition’s onset or progression.
The Commission denied compensation. It had found credibility issues with the opinions of the treating physicians—none of whom testified—who related Murff’s back problems to the work incident. For example, one doctor inaccurately described the work injury. Another doctor's report contained no information relating to Murff’s job duties, nor any information relating to how those duties could have resulted in an occupational work injury. The Commission also noted problems with the IME’s opinion. However, the Commission ultimately determined that Murff had not met her burden of proving her claim.
Murff argued that her doctors had made a prima facie case of a compensable injury, which the Respondent failed to rebut because the Commission did not credit the IME's opinion either. Murff's argument relied in part on Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 136, 682 N.W.2d 29, with its burden shifting analysis in odd lot cases. However, as the court noted, Murff was not asserting an odd lot claim. Instead, Murff's case simply involved a matter of the Commission "choosing what to believe and what not to believe, and it did not believe the treating doctors."
On this point, the Court noted the "legitimate doubt" standard under which it is "‘an elementary principle’ that the claimant has the burden of proving beyond a legitimate doubt all the facts essential to the recovery of compensation." Leist v. LIRC, 183 Wis. 2d 450, 457, 515 N.W.2d 268 (1994). Still, however, the Commission "cannot reject a medical opinion unless there is something in the record to support its rejection." While it may not rely solely on its "cultivated intuition," it is not "require[d] … to provide countervailing medical expert opinions to support a legitimate doubt." Leist, 183 Wis. 2d at 460-62.
The Court went on to note that "[a] legitimate doubt comprises ‘some inherent inconsistency ... or conflict in the testimony,’" citing Kowalchuk, 234 Wis. 2d 203, ¶8. That is, there just needs to be "something in the record" to support its rejection of a medical opinion. Leist, 183 Wis. 2d at 460. In this case, the Commission explained what caused it to doubt the veracity of the opinions of the doctors who had indicated the work incident was a cause of Murff’s back problems. Indeed, the Court concluded, these findings were "simply a matter of credibility," citing E.F. Brewer, 82 Wis. 2d at 639.
Take-away Point: The Commission may deny a claim if the Commission identifies inconsistencies in the Applicant's expert medical opinions sufficient to establish legitimate doubt, regardless of the Respondent’s defenses to the claim.
Gregory Mallet v. LIRC, No. 21AP1263, unpublished per curiam (Wis. Ct. App. June 28, 2022)
Pro se applicant, Gregory Mallet, claimed injuries to his spine that involved four appeals through the Court of Appeals on three different dates of injury: an accidental injury of April 1981, occupational exposure to December 1983, and more occupational exposure from January to April 1984. This case involved the last periods of work exposure. The Commission denied the claim, crediting the IME doctor, Richard Karr, M.D., who opined that Mallett's ongoing complaints of midback and low back pain were partly due to the normal progression of non-work-related spondylosis and partly due to behavioral factors. The Commission also noted the treating doctors' notes focused largely on the earlier dates of injury and only mentioned the last period of work exposure in pre-printed response to letters sent to them by the Applicant in 2015.
The Court of Appeals affirmed the Commission decision, noting the following:
The Court noted that that Mallett cites to Miron Construction Co. v. Kampfer, 215 Wis. 2d 323, 572 N.W.2d 902 (Ct. App. 1997)4, for the proposition that an IME doctor must make a definitive diagnosis in order to be deemed credible by LIRC. The Mallett court first noted that the Miron Construction case was a per curiam opinion, so it has no precedential value and may not be cited for its persuasive value. Further, the Court noted that the Miron Construction's holding in that case does not stand for the premise advanced by Mallett.
In an actual reported case, Molinaro v. Industrial Comm., 273 Wis. 129, 133 (1956). In that case, Court stated if a medical report offered by a respondent raises a credible legitimate doubt as to whether work caused disability, it is not necessary for the respondent to go further and prove that the disability is instead caused by an off-duty accident or exposure.
Take-away Point: Prior unpublished per curiam decision in Miron Construction should not have been cited and did not support proposition that an IME doctor must make a definitive diagnosis in order to be deemed credible by LIRC.