VACUUM DEPOSITING, INC. (), ET AL. VS. COMPENSATION DEVER (TAMATHA)Annotate this Case
RENDERED: OCTOBER 3, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
VACUUM DEPOSITING, INC.
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-07-96080
HON. A. THOMAS DAVIS,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
** ** ** ** **
BEFORE: KELLER AND TAYLOR, JUDGES; GUIDUGLI,1 SENIOR JUDGE.
KELLER, JUDGE: On January 3, 2007, Tamatha Dever (Dever) fell while in the
break room at Vacuum Depositing, Inc. (VDI). As a result of her fall, Dever
suffered a fractured right wrist and alleged injuries to her right hip and low back.
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky constitution and KRS 21.580.
The Administrative Law Judge (ALJ) dismissed Dever’s claim, ostensibly because
he believed the fall was idiopathic rather than unexplained. The Workers’
Compensation Board (the Board) reversed the ALJ, finding that there was not
sufficient evidence to rebut the presumption that Dever’s fall was unexplained and
thus compensable. On appeal, VDI argues that it put forth sufficient evidence to
establish that Dever suffered her injuries as the result of an idiopathic fall and that
the Board impermissibly substituted its findings of fact for those of the ALJ. After
a thorough review of the record, we affirm.
The issue VDI raises in this appeal is fact intensive; therefore, we will
summarize in some detail the evidence as it relates to Dever’s fall. Because the
ALJ dismissed Dever’s claim, neither party has raised any issue regarding the
extent of her injuries; therefore, we will only address the medical evidence filed by
the parties as necessary for this appeal. After undertaking our independent review
of the facts, we will summarize those portions of the opinions of the ALJ and the
Board that are relevant to this appeal.
Dever testified that, on January 3, 2007, she went from her office to
the break room. She “was standing in front of the snack vending machine. There’s
like a Coke vending machine, a snack vending machine and then another Coke
vending machine and I was standing there walking towards it and I slipped and
fell.” Dever did not recall if there was anything on the floor; however, she stated
that “[t]here’s always paper on the floor in there,” and that “the garbage cans were
always overflowing. . . . [i]t was always very dirty.” When asked if she knew why
she fell, Dever stated that she did not; she just “slipped and fell.” Immediately
after falling, Dever experienced pain and swelling in her right wrist. There was no
one else in the break room at the time.
After she gathered her bearings, Dever went to Myra Dempsey’s
(Dempsey) office to report her injury. Dever went to BaptistWorx for evaluation
and was referred to a hand surgeon, Dr. Moreno, for treatment of a fractured wrist.
Dever testified that her fracture has healed, but she continues to experience pain
and a “popping” sensation. In addition to her wrist injury, Dever testified that she
began to experience hip and back pain approximately a week after she fell. Dever
stated that she had suffered from back pain before this injury; however, she could
not remember when she had last treated for those prior complaints. She denied any
memory of a CT scan in 2004.
Myra Dempsey (Dempsey), controller for VDI, testified that Dever
was wearing black high heels when she fell. When she came to report the fall,
Dever told Dempsey that she fell because “she was clumsy and she just turned
around and fell and had no idea how. She said she was the only person she knew
that could fall while standing still.” Following the injury, Dever worked a full day
on January 5th, part of the day on January 9th and January 11th, and part of the day
on March 5th, when she resigned. Finally, Dempsey testified that VDI has a
business casual dress code for its employees, but it is not unusual for female
employees to wear high heels to work.
Michael Krafka (Krafka), first shift supervisor at VDI, testified that he
inspected the break room following Dever’s fall. Following his inspection, Krafka
prepared a statement indicating that he found “no liquid or debris around the area
where the fall occurred that could have contributed to the accident.” Additionally,
Krafka noted that “Tamatha Dever has concurred by stating the following ‘I just
turned around and fell and have no idea how it happened.’”
At the hearing, Dever testified that the dress code called for
professional attire and that she wore slacks or skirts. All of the women who
worked in the offices wore high heels “at different times.” She was wearing boots
with approximately two inch heels when she fell and did not feel dizzy or any pain
before she fell.
Dever’s testimony at the hearing differed somewhat from her
deposition testimony. In describing her fall, Dever stated that she “was walking
towards the vending machine and standing there and [she] turned around and [she]
slipped and fell.” Furthermore, Dever testified that “there was some trash by the
vending machine. There’s always stuff on the floor in the break room.”
At the hearing, Dever also testified that she took photographs with the
camera on her cell phone when she returned to work on January 5, 2007. Dever
could not remember why she took the photographs other than that VDI was “being
ugly” to her. Finally, Dever testified that Krafka lied when he testified that she
spoke with him and that Dempsey lied when she testified that Dever said that she
could fall while standing still.
THE ALJ’S OPINION
After summarizing the testimony of Dever, Dempsey, and Krafka, the
ALJ stated that he did not find Dever to be particularly credible. In so stating, the
ALJ noted Dever’s inability to remember matters that would normally be subject to
recall, such as her pre-injury treatment for back pain and a pre-injury CT scan. He
also noted what he characterized as Dever’s changing testimony about whether
there was debris on the floor when she fell. Furthermore, the ALJ noted that Dever
had filed a previous lawsuit for a slip and fall accident and that she took cell phone
photographs two days after her fall at VDI. Taking this testimony from Dever into
account, along with that of Dempsey and Krafka, the ALJ stated that he questioned
Dever’s “testimony as to the reason she fell.”
The ALJ went on to find that:
this case presents a classic example of an idiopathic fall
case that Kentucky, and other jurisdictions, have deemed
are not compensable through workers’ compensation
since, though they occurred during the course of
employment, they do not “arise out of” the claimant’s
employment . . . Tamatha Dever went to the break room
to get something out of the vending machine, and while
turning around, she fell onto the level floor striking no
objects on the way down. The “positional risk doctrine”
therefore does not apply to this case . . . .
Though Ms. Dever testified that both Mike Krafka
and Myra Dempsey lied under oath about their
conversations with her after the fall occurred, the
believable testimony from Ms. Dempsey and Mr. Krafka
establishes that “Ms. Dever stated that she was clumsy,
and she turned around and fell and had no idea how. She
said she was the only person she knew that could fall
while standing still.” Moreover, Ms. Dever was wearing
high heels on the date of a [sic] accident, and she testified
herself that her fall occurred when she was turning
around from the vending machine.
The ALJ then cited to Workman v. Wesley Manor Methodist Home,
462 S.W.2d 898, 900 (Ky. 1971), for the proposition that, although an unexplained
fall creates a presumption of work relatedness, that presumption can be rebutted by
evidence that “work was not a contributing cause.” If an employer can produce
evidence to “cast enough doubt on the validity of the initial presumption in the
case . . . to justify a reasonable man in disregarding it”, then the presumption “is
reduced to a permissible inference and” the ALJ is free to find for either party. Id.
The ALJ, applying Workman to Dever’s claim, stated that:
[i]n this case there is no testimony from any source
tending to prove that Ms. Dever slipped on a wet floor,
tripped on any debris in [sic] the floor, or on any
obstruction while obtaining her food out of the vending
machine. The best interpretation is that she merely
turned around and fell down, and her work, in no way,
contributed to the cause of her fall. The Plaintiff told Ms.
Dempsey that she is “clumsy”, and the additional
evidence that Ms. Dever was wearing high heels at the
time, constitutes sufficient evidence for the ALJ to
reduce the rebuttable presumption of the fall arising out
of the work situation to simply a permissible inference.
Once the rebuttable presumption is reduced to a
permissible inference the ALJ may determine to either
find, or decline to find that the fall arose out of the
Plaintiff’s employment. It is the ALJ’s opinion that the
weight of the reliable evidence in this case indicates that
the injuries did not arise from Ms. Dever’s employment.
After discussing Jefferson County Public Schools/Jefferson County
Board of Education v. Stephens, 208 S.W.3d 862 (Ky. 2006), the ALJ found that:
[i]n the discernible facts of this case there is nothing
about the circumstances of the Plaintiff’s fall that
suggests her work contributed to the cause of the fall.
The fall could just have easily occurred when the
claimant was on any other level surface anywhere. It is
the ALJ’s perception that it is very likely that an element
of clumsiness and instability of high heels is involved. If
the Plaintiff is entitled to a rebuttable presumption of a
work-related fall, clearly this rebuttal [sic] presumption is
reduced to a permissible inference by the evidence in the
record of this case, leaving the ALJ free to decline to find
the fall and resulting wrist and alleged back injury workrelated and compensable. Given the evidence in the
record the ALJ believes this to be the appropriate action.
The Plaintiff’s claim for workers’ compensation is to be
THE BOARD’S OPINION
The Board reviewed the testimony of Dever, Dempsey, and Krafka
regarding the circumstances of Dever’s fall. In doing so, the Board, as did the
ALJ, noted the apparent inconsistencies in some of Dever’s testimony and the
differences between the testimony of Dever and that of Dempsey and Krafka. The
Board then reviewed the ALJ’s opinion, noting his reliance on Workman and his
finding that VDI had presented evidence sufficient to overcome the presumption
favoring Dever. The Board defined the issues presented as “whether Dever
sustained an unexplained or idiopathic fall and if the fall was, in fact, idiopathic
did the ALJ fail in not analyzing the matter under the positional risk doctrine.”
In analyzing the issues raised by Dever, the Board cited primarily to
Workman and Jefferson County Public Schools, and relied heavily on the latter.
As to whether Dever’s fall was idiopathic, the Board noted that
[t]his case has none of the usual physical factors personal
to the claimant that renders the fall idiopathic such as
dizziness, a heart attack or some orthopedic instability.
The ALJ applied the rule of law in Workman that the
rebuttable presumption of work relatedness for an
unexplained fall becomes a permissible inference when
the employer submits countervailing evidence against the
neutrality of the unexplained fall. Here, though the ALJ
mentioned clumsiness and high heels, his ultimate
decision seems to be hinged on the fact the employer was
able to show there was nothing connected to work that
would have caused Dever to fall.
After having carefully considered the facts, the law
and arguments of counsel, we agree with Dever that the
ALJ erroneously determined her fall to be idiopathic and
therefore not work related. VDI put forth no evidence
that something personal to Dever caused her fall. It
submitted no evidence Dever had some physical or
medical condition that caused her to fall. VDI may have
persuaded the ALJ that nothing it did caused the fall.
That alone, however, does not shift the inference from
the rebuttable presumption of work relatedness to the
permissible inference. As the Supreme Court pointed out
in Jefferson County Public Schools, supra:
It was the employer’s burden to go
forward with substantial evidence of a nonwork-related cause for the claimant’s fall in
order to rebut the Workman presumption.
Id [.] at p 867.
Accordingly, we do not believe VDI met the above
described burden. In this case either the fall remained
“unexplained” or it was as intimated by the ALJ an
“explained fall” caused by Dever wearing high heels and
being clumsy. The high heels were part of the required
business attire of VDI office personnel rendering the fall
work related. The Court of Appeals (now Supreme
Court) phrased it best in Workman:
In blunt terms this means that without such
rebutting evidence the Board [now ALJ]
cannot find against him on the issue of
whether the accident arose out of the
Id [.] at p 900.
Thus, the ALJ erred in his conclusion Dever sustained an
idiopathic fall and this matter must be remanded to the
ALJ for a determination of work relatedness and an
award for the injuries sustained by Dever as a result of
STANDARD OF REVIEW
When reviewing the Board's decision, this Court will only reverse the
Board when it has overlooked or misconstrued controlling law or so flagrantly
erred in evaluating the evidence that it has caused gross injustice. Western Baptist
Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). In order to review the
Board's decision, we must review the ALJ's decision, because the ALJ as fact
finder has the sole authority to judge the weight, credibility, substance, and
inferences to be drawn from the evidence. Paramount Foods, Inc. v. Burkhardt,
695 S.W.2d 418, 419 (Ky. 1985). In reaching his decision, the ALJ is free to
choose to believe or disbelieve parts of the evidence from the total proof, no matter
which party offered it. Brockway v. Rockwell International, 907 S.W.2d 166, 169
(Ky. App. 1995). However, when there are mixed questions of fact and law, as is
the case herein, we have greater latitude in determining if the underlying decision
is supported by probative evidence. Purchase Transportation Services v. Estate of
Wilson, 39 S.W.3d 816, 817-18 (Ky. 2001); Uninsured Employers' Fund v.
Garland, 805 S.W.2d 116, 117 (Ky. 1991).
VDI does not dispute that Dever fell while in the break room.
Therefore, once all the chaff is separated from the wheat, the only question before
us is, why did Dever fall? There are three types of falls that can occur within the
work place: (1) a fall that is the result of something peculiar to the work place,
such as oil on the floor of a machine shop; (2) a fall that is the result of something
peculiar to the employee (an idiopathic fall); and (3) a fall that has no explanation
(an unexplained fall). There is no evidence that Dever tripped, slipped, or fell as a
result of any substances or peculiarities with the floor at VDI. Therefore, we need
not address scenario number one.
As to scenario number two, VDI argued, and the ALJ found, that
Dever’s case represented a “classic example of an idiopathic fall.” As noted by
both the ALJ and the Board, an idiopathic fall is one that results from something
personal to the claimant and, absent factors not present here, is not compensable.
In support of its argument that Dever’s fall was idiopathic, VDI points to
Dempsey’s testimony that Dever stated that she was clumsy and the testimony of
both Dempsey and Dever that Dever was wearing high heels when she fell. The
ALJ stated that he found it was “very likely that an element of clumsiness and
instability of high heels [was] involved” in Dever’s fall. There is no evidence that
Dever suffered from any non-work related physical or mental condition that caused
her to fall. Therefore, we must determine whether clumsiness and the wearing of
high heels constitute factors sufficient to support VDI’s argument and the ALJ’s
opinion that Dever’s fall was idiopathic. We hold that they do not.
In Jefferson County Public Schools/Jefferson County Board of
Education v. Stephens, 208 S.W.3d 862, 864 (Ky. 2006), the Supreme Court of
Kentucky defined idiopathic “as caused by something personal to the claimant
rather than the employment.” Webster’s New Twentieth Century Dictionary
Unabridged (2d ed. 1979), defines idiopathic as “relating to or having the nature of
idiopathy.” Idiopathy is defined as “an independent disease, neither induced by
nor related to another disease; a spontaneous or primary disease.” Id. Professor
Larson gives the following as examples of idiopathic conditions: “a disease,
internal weakness, personal behavior, or personal mortal enemy that would have
resulted in harm regardless of the employment.” Jefferson County Public
Schools/Jefferson County Bd. of Educ,. 208 S.W.3d at 866, citing Larson's
Workers' Compensation Law, § 4 (2006). Other cases in Kentucky that address
idiopathic falls, involve a heart attack, Indian Leasing Co. v. Turbyfill, 577 S.W.2d
24 (Ky. App. 1978), an epileptic seizure, Stasel v. American Radiator & Standard
Sanitary Corp., 278 S.W.2d 721 (Ky. 1955), and a back condition, Workman v.
Wesley Manor Methodist Home, 462 S.W.2d 898 (Ky. 1971). Based on the
preceding, we hold that footwear and clumsiness do not fall within the definition of
idiopathic; therefore, we hold that Dever’s fall was not idiopathic.
Having eliminated the first two scenarios, we must address scenario
three, the unexplained fall. As noted by the ALJ and the Board, an unexplained
fall is presumed to be work-related. Workman, 462 S.W.2d at 899. Based on the
preceding definition of idiopathic, we can find no evidence in the record that
would be sufficient to rebut that presumption. Therefore, we hold that Dever’s fall
was unexplained and compensable.
Finally, we note VDI’s argument that the Board incorrectly
characterized its dress code as requiring Dever to wear high heels. As noted by
VDI, the only dress requirement was “business casual.” While the Board may
have overstated that high heels were required business attire, the evidence
established that high heels were commonly worn by the female employees of VDI.
Thus, high heels were acceptable as business casual attire and the Board’s
statement, if error, was harmless.
For the foregoing reasons, we affirm the decision of the Workers’
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Brian T. Gannon
Bradley D. Harville
Dana Taylor Skaggs