In the course of employment (i. e. , time, place and circumstances); and
Arising out of employment (Causal link between the injury and the employment)
Employment related risks = universally compensable
Personal risks == universally noncompensable
Neutral risk == may or may not be compensable, depending on the situation
See, Phil A. Livesley, 296 Or 25, 29-30 (1983).
Where the fun begins!
Unexplained falls
Where the cause of the fall is unknown, it is a “neutral” risk that is considered to arise out of employment as a matter of law so long as it occurs in the course of employment. Phil A. Livesley, Co. v. Russ, 296 Or 25, 29-30 (1983).
A fall will be deemed “truly unexplained” only if the claimant “persuasively eliminates all idiopathic factors of causation”. Blank v. US. Bank of Oregon, 252 OR App 553, 557~558 (2012).
Judith L. Simmons, DCD, 61 Van Natta 1430 (2009): idiopathic factors = peculiar to the individual not “arising from an unknown cause”. Livesley, 296 Or at 27.
Blank, claimant had been diagnosed with a pre-existing condition that had caused her to fall in the past and it was equally possible that her pre-existing condition and the cause of the fall.
Where it is “equally possible” that idiopathic factors or work-related factors (which are unidentified) caused a fall, the fall cannot be said to be “truly unexplained” and the claim is not compensable. Blank, 252 Or App at 558 (citing Russ, 296 Or at 30, and Mackay v. SAIF, 60 Or App 536 (1982), rev den, 296 OR 120 (1983)).
Therefore, in order for a fall to be considered “truly unexplained”, a claimant must adequately eliminate all possible idiopathic causes for the fall. Blank, 252 Or App at 560.
In addition, if there is an explanation for the fall, which was an employment or neutral risk, then the fall is not truly unexplained, even if there is uncertainty regarding precisely how the worker fell. Arthur E. Fredrickson, 52 Van Natta 897 (2000) (fall caused when the claimant “hooked” his toes on “something” in or near a parking lot was not an “unexplained” fall, although the claimant could not identify what specific hazard or impediment “hooked” his toes).
“[W]here idiopathic causes for an unexplained fall have been eliminated, the inference arises that the fall was traceable to some ordinary risk, albeit unidentified, to which the employment premises exposed the employee.” Russ, 296 Or at 32 (emphasis added)
Sheldon -— Court of Appeals decision
Board decision: Catherine A. Sheldon, 66 Van Natta 275 (2014) = record did not establish that the claimant’s fall was truly unexplained. Claimant did not rule out the possibilities that her idiopathic factors caused, or contributed to, ‘claimant’s fall.
The Board relies upon an opinion letter from a non-treating doctor who provided speculation to support her position
The report, from Dr. Lynne Bell, indicated that claimant was obese, and obese people have balance issues, and therefore her obesity was potentially causative of her fall.
In addition, claimant had been diagnosed with diabetes, people with diabetes can have diabetic neuropathy, which can cause balance issues, and therefore her diabetes was potentially causative of her fall.
The ALJ dismissed Dr. Bell’s Opinion as merely speculation
Court of Appeals reversed the Board’s decision and remanded the case
The majority held that the claimant has to show that it was less than equally likely that idiopathic factors caused her to fall, not that there was no possibility that such idiopathic factors could have contributed to the fall.
The legal question is whether claimant has adequately explained why idiopathic factors were not the cause of the injury, not whether claimant has disproved all possible explanations for an unexplained fall. McTaggart v. Time Warner Cable, 170 Or App 491, 503 (2000), rev den, 331 Or 633 (2001)
In a concurring opinion, Judge Lagesen, opined that the Board did not address that claimant had said all along that she tripped/slipped on the tile while entering into the lobby of her workplace.
Judge Lagesen indicated that on remand the Board would not be limited to addressing only the unexplained fall arguments and could address the fact that the fall was actually explained.
Waiting on the Supreme Court for a decision
Claimant arguing that the idiopathic factors must be equally likely to have caused the fall
Employer arguing that unexplained falls should go back to the Livesley standard and apply ORS 656.266(l)
ORS 656.2660): The worker cannot carry the burden of proving that an injury or occupational disease is compensable merely by disproving other possible explanations of how the injury or disease occurred.