North Dakota Supreme Court Refuses to Adopt Positional Risk Doctrine in Unexplained Fall Cases

There’s nothing like an employee’s unexplained fall while walking on a level, unobstructed floor to test one’s position on the positional risk doctrine in workers’ compensation claims. As was noted in my post on March 16, 2012 related to Byrom v. Randstad N. Am., L.P., 2012 Tenn. LEXIS 152 (Mar. 8, 2012), if an employee falls while walking across a level floor on the employer’s premises for no discoverable reason, there is no way in which an award can be justified except upon a positional risk theory–that the particular injury would not have happened if the employee had not been engaged upon an employment errand at the time [see Larson’s Workers’ Compensation Law, § 4.01 et seq.]. While some courts have been happy to apply the positional risk rule in these “neutral” risk cases, most have not.

In Fetzer v. North Dakota Workforce Safety and Ins., 2012 ND 73, 2012 N.D. LEXIS 70 (Apr. 10, 2012), the Supreme Court of North Dakota was recently called upon to determine the compensability of such an unexplained, level fall sort of case. In well-reasoned fashion, the majority and dissenting opinions both carefully articulated the issues. The majority of the court concluded that the “but-for” reasoning of the positional risk doctrine is incompatible with the North Dakota Workforce Safety and Insurance Act. Moreover, because the positional risk doctrine requires a claimant only to show that an injury was sustained while at work, the majority indicated the doctrine directly contravened both the language of N.D.C.C. § 65-01-02(10) and the Legislature’s stated intent in adding the “arising out of” element in a 1977 amendment. 

Background

The essential facts were undisputed. While walking down a hallway on her employer’s premises and during work hours, Fetzer thought she heard someone call her name. Turning in response, she caught her foot and fell, fracturing her left hip and wrist. No cause of the fall was apparent. Workplace Safety and Insurance (“WSI”) denied her claim, determining Fetzer’s injury “occurred in the course of, but did not arise out of” her employment. In its decision, WSI added, “Mere walking, without more, is not an activity that is sufficiently linked to Claimant’s employment so that the injury can be deemed to have arisen from employment.”

An administrative law judge agreed, indicating that accepting Fetzer’s argument that the positional risk doctrine should be applied in unexplained fall cases would negate North Dakota’s requirement that claimants prove their work injuries arose out of the employment. Fetzer appealed to the district court, which affirmed the decision of the ALJ.

Fetzer’s Contentions

Fetzer relied heavily upon the discussion of neutral risk found in Larson [§3.05], wherein Dr. Larson observed that with regard to neutral risk situations–that is, risks not personal to the claimant–a growing number of jurisdictions have begun to accept the positional risk doctrine. Fetzer claimed that the adoption of the doctrine by North Dakota would be compatible with the overall philosophy of the states’s workers’ compensation laws and that a majority of American jurisdictions had adopted the doctrine [a cursory check of the notes I keep in connection with my Larson writing indicates Fetzer’s claim is not accurate, that the positional risk doctrine has been taken up by only a minority of jurisdictions].

The Majority’s Discussion

Initially, the majority noted that it had not previously been called upon to discuss the “arising out of” element within the context of unexplained falls, that in 1977, the Legislature added the “arising out of” language to the definition of a compensable injury [1977 N.D. Sess. Laws. ch. 579, § 2], and that the legislative history supported the notion that by adding the “arising out of” language, the Legislature intended for claimants to prove more than that they merely suffered an injury on work premises and during work hours to receive compensation for the injury.

The majority observed that Nevada’s statute [Nev. Rev. Stat. § 616A.010(4)] contained similar wording to that in North Dakota, that accordingly, Nevada claimants were required to prove their injury “arose out of and in the course of” employment, that the Nevada Supreme Court had considered an unexplained fall case involving a claimant who urged the adoption of the positional risk doctrine [Mitchell v. Clark Cnty. Sch. Dist., 111 P.3d 1104, 1106 (Nev. 2005)] and that the Nevada court had declined to adopt the doctrine.

The majority continued, indicating that in as much as the positional risk doctrine required a claimant only to show that an injury was sustained while at work, the doctrine directly contravened both the language of N.D.C.C. § 65-01-02(10) and the Legislature’s stated intent in adding the “arising out of” element. If merely being at work was sufficient to show causation, the legislature need not have required the ‘arising out of’ test.”

Dissenting Opinion

Justice Maring dissented, observing that in Mitchell v. Sanborn, 536 N.W.2d 678, 686 (N.D. 1995), a horseplay case, heavily relied upon by Fetzer, the court said, “For purposes of receiving benefits, an employee’s injury arises out of and in the course of employment if it ‘occurs within the period of employment at a place where the employee may reasonably be and while he was engaged in performing the duties of his contract or is engaged in something incident thereto and contemplated thereby.’”

Justice Maring pointed out that in other decisions, the court had clearly stated that while sometimes the employment would be found to directly cause the injury, more often the injury arises out of conditions incident to the employment. The justice stressed that the overall purpose of the Workforce Safety and Insurance Act was to provide sure and certain relief for workers injured in their employment. Quoting Larson [§ 4.01, et seq.], the justice identified the three basic types of risks associated with the workplace: (a) those that were “distinctly associated” with the employment, which were “universally compensable;” (b) those that could be attributed to “personal or idiopathic” characteristics of individual employees, which were “universally noncompensable;” and (c) those that were “neutral” in cause, that is to say, they were neither distinctly employment nor distinctly personal in character.

Continuing with Larson’s discussion, Justice Maring observed that since neutral risks were not associated with the employment, the employer understandably contended it should not have to bear the expense. “The alternative, of course, is to place the burden on the employee.” Larson, § 7.02[4]]. Justice Maring concluded:

Professor Larson points out that “[e]ither the employer or the employee must bear the loss; to show connection with the employment, there is at least the fact that the injury occurred while the employee was working; to show connection with the employee personally there is nothing; therefore, although the work connection is slender, it is at least stronger than any connection with the claimant’s personal life.” Larson, supra, § 4.03 [page omitted]. I agree.

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