In a decision showing just how strongly the state’s workers’ compensation system separates the “arising out of” the employment component of the compensation formula from the “course of employment” component, the Supreme Court of Idaho recently held that a former UPS driver was entitled to workers’ compensation benefits for a severe back injury that occurred when the driver tied his work boots one morning at work [Vawter v. United Parcel Service, Inc., 2014 Ida. LEXIS 21 (Feb. 7, 2014)]. The high court held in relevant part that the Industrial Commission was correct when it determined that the driver’s injuries arose out of and in the course of his employment; it held the Commission did commit error in failing to award the driver all his medical expenses, which included the costs of two rounds of surgery for his slipped disc.
Vawter began working for UPS as a delivery driver in 1983. Each day, he drove his private vehicle to a Cascade airport facility, where he loaded his truck for the daily deliveries. One day in December 2009, when it was bitterly cold, he reported to work, started his truck to let it warm up, and then went inside the building. He clocked in, sat down, and bent over to tie his boot lace. He felt a pop and pain in his low back. Vawter was diagnosed with a herniated disc and early cauda equina symptoms. Two surgeries were performed on his back. UPS denied the workers’ compensation claim, admitting that the injury occurred “in the course of” Vawter’s employment, but contending in relevant part that the injury was not the result of an accident “arising out of” that employment.
After an exhaustive examination and discussion, the Commission determined that the injury indeed arose out of the employment and awarded permanent total disability benefits to Vawter. As mentioned above, regarding a tangential issue not germane to the discussion herein, the Commission failed to award all medical expenses, however. Vawter appealed that part of the decision; UPS appealed the award of benefits altogether.
Bifurcation of the “AOE” and the “COE” Portions of the Basic Coverage Formula
As I pointed out in an earlier blog post, in spite of the obvious differences between and among the states as to the level of benefits paid for workers’ compensation disability benefits, scheduled injuries, and the like, there is general agreement as to the basic coverage formula to be utilized. Indeed, more than four-fifths of the states, as well as the Longshore and Harbor Workers’ Compensation Act, have adopted the entire British Compensation Act formula: injury “arising out of and in the course of employment” [see Larson’s Workers’ Compensation Law, § 3.01]. As noted by Dr. Larson, “[f]ew groups of statutory words in the history of law have had to bear the weight of such a mountain of interpretation as has been heaped upon this slender foundation.”
To ease the task, many courts break the phrase in half, with the “arising out of” portion construed to refer to causal origin, and the “course of employment” portion to the time, place, and circumstances of the accident in relation to the employment. For the most part, this bifurcation does no harm; but it should never be forgotten that the basic concept of compensation coverage is unitary, not dual, and is best expressed in the term “work connection.” In spite of such cautionary words by Dr. Larson, a number of states insist on two separate tests: (a) the “arising out of” portion and (b) the “course of employment” portion. Idaho is one such state.
Idaho’s Presumption Related to “On Premises” Injuries
A number of states, including Idaho, employ a special presumption for injuries sustained on the employer’s premises. The Idaho high court stated:
When an injury occurs on an employer’s premises, a presumption arises that the injury arose out of the claimant’s employment [see Foust v. Birds Eye Div. of Gen. Foods Corp., 91 Idaho 418, 419, 422 P.2d 616, 617 (1967)]. Once a claimant establishes that he suffered an injury on his employer’s premises, the employer then bears “the burden of producing evidence” to show that the claimant’s “injury did not arise out of or in the course of his employment.” Kessler v. Payette County, 129 Idaho 855, 859, 934 P.2d 28, 32 (1997). If the employer meets its burden, the employee, “without the benefit of the statutory presumption . . . , has the burden of proving, by a preponderance of the evidence, all the facts essential to recovery.” Evans v. Hara’s Inc., 123 Idaho 473, 479, 849 P.2d 934, 940 (1993).
The Commission found that UPS overcame the Foust presumption because it demonstrated the “risk of injury” to which Vawter was “exposed is arguably a common risk, with no particular association” to his employment with UPS. The Commission, however, also decided that Vawter had presented sufficient facts to demonstrate that the accident was one arising out of and in the course of employment, that the injury bore a causal connection to the work he had been hired to perform. The Commission explained that Vawter “demonstrated, and no rational person would disagree, that anyone whose job includes the requirement of carrying boxes all day … would do well to keep his shoes tied.”
Positional Risk Doctrine Where Origin of Accident was “Neutral
On appeal, UPS again argued that Vawter’s accident did not arise out of his employment because Vawter’s employment did not expose him to any greater risk of injury than he was exposed to outside of his employment and because the risk of injury to Vawter from tying his shoelaces was personal to him. Specifically, UPS contended that the “pop” precipitating Vawter’s current disability occurred when he was tying his shoes–an activity UPS did not require him to engage in.
The court indicated that UPS’ argument failed because the Court had specifically overruled the necessity of proving that a claimant’s employment exposed him to a greater risk of injury. The court acknowledged that originally, to recover for worker’s compensation, a claimant had to prove that his or her employment subjected the claimant to a greater risk of injury than that to which the claimant would otherwise have been subjected. The court added, however, that as worker’s compensation case law developed, the Court began to apply the positional risk doctrine for injuries resulting from accidents that were of neutral origin in the sense that their origin was neither occupational nor personal. The court reasoned that it should apply the rule because “when the cause of the injury can be attributed to neither an occupational nor personal origin, and is thus neutral, there is no more reason to assign the resulting loss to the employee than to the employer” [quoting Mayo. v. Safeway Stores, 93 Idaho 161, 457 P.2d 400 (1969) which, in turn, quoted Larson’s Workers’ Compensation Law, current § 4.03].
Decision Did Not Require Use of Positional Risk Doctrine
The court indicated still further, however, that it need not rely upon the positional risk doctrine. That is to say, the court need not say that the risk of injury to Vawter was “neutral.” Rather, Vawter “was actually required to have his shoes tied or at least secured.” The court said:
As explained by UPS’ counsel in oral argument, UPS has a “no loose or dangling parts” shoe policy, which prohibited employees like Vawter from leaving shoelaces unsecured. Thus, as stated by the Commission, Vawter “needed to have his shoes tied to perform his work, and the injury that he suffered as a result of performing this task is assuredly connected to his employment.” Vawter tied his shoes for UPS’ benefit and the accident causing his injury therefore arose out of his employment. We therefore affirm the Commission’s holding that Vawter’s injury arose out of his employment.
My Two Cents–Beware Those Errant Comments at Oral Argument
I don’t have a particular beef with the decision. The court’s discussion is quite good and while the decision is not binding beyond Idaho, of course, practitioners from other states would do well to read it. The issues arise in plenty of other locales. As did my mentor, Arthur Larson, I strongly agree that where the risk is neutral and the burden of the loss has to fall on one side or the other, it makes the best social policy to have it fall upon the employer who, after all, can insure against the loss. I don’t know that I agree altogether that tying one’s shoe is a neutral risk.
I was intrigued by the “fall back” position taken by the Idaho Supreme Court regarding UPS’ so-called “no loose or dangling parts” shoe policy. It seems as if the court was uncomfortable basing its decision on the use of the positional risk doctrine, when applied to neutral risks. Recognizing that the court may merely have been happy to jump on a statement by UPS counsel that bolstered Vawter’s argument that tying his shoes produced some sort of benefit for UPS–a position with which the court apparently agreed–nevertheless, there did not appear to be any testimony in the record indicating UPS required its workers’ shoes to be tied. Vawter apparently did not introduce any UPS employment manual or other written policy related to shoes. Yet the court indicated that “UPS employees were ”Vawter was actually required to have his shoes tied or at least secured.” Who says so? The UPS counsel, that’s who.
Was counsel backed into a corner at oral argument? Possibly so. And, of course, counsel can’t be blamed if UPS actually did have such a “shoes tied” policy. What is apparent is that a court intent upon a particular holding can point to the record, or even “evidence” offered by opposing counsel at argument, to make its point.