In yesterday’s post, I pointed out the difficulty courts (and not a few practitioners) have had with a specific form of neutral risk–those in which an employee falls while walking across a level floor on the employer’s premises for no discoverable reason. In that blog post I referred to a statement by my mentor, Dr. Arthur Larson, who wrote that there is no way in which an award on those facts 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.].
These cases are problematic because, out of necessity, either the employer or the employee must bear the loss. In these close cases it seems possible to show some connection with the employment; there is at least the fact that the injury occurred while the employee was working. On the other hand, to show connection with the employee personally, there is nothing. The protective philosophy of most workers’ compensation acts would seem to support a notion, therefore, that while the work connection is slender, it is at least stronger than any connection with the claimant’s personal life [see Larson, § 4.03, as well as the minority opinion in Byrom v. Randstad N. Am., L.P., 2012 Tenn. LEXIS 152 (Mar. 8, 2012), discussed in yesterday’s blog]. In spite of these policy considerations, a majority of jurisdictions have failed to adopt the positional risk doctrine for neutral risk injuries.
Let’s change the facts slightly. What if instead of a level, unimpeded floor, we have a staircase with no obstructions? Should an unexplained fall under such conditions produce a compensable injury? What if the step is from a piece of employment equipment and not a staircase? What if the step is somewhat greater, in terms of distance, than an ordinary step on a staircase? These issues were discussed recently by the Court of Appeals of Virginia, in May v. Town of Bridgewater, 2012 Va. App. LEXIS 106 (Apr. 10, 2012). In that decision, the court affirmed a denial of benefits to a claimant who injured his knee when he stepped from the back of a trash truck. That the distance of the “step” was 22-1/4 inches, higher than a “normal” eight inch step, was insufficient to allow for a recovery in the absence of medical evidence that a condition of employment had caused the claimant’s injury. Observing that the medical evidence in the case did not establish anything more than a speculative link between the injury and the height of the step, the court found that claimant had failed to establish his claim.
The appellate court observed that the facts were essentially undisputed. Claimant, a trash collector, was riding on the back of a trash truck. When the truck came to a full stop, he stepped down backwards off the truck, placing his left foot on the ground while his right foot remained on the step. His left knee gave a loud pop, he felt a severe pain, and he fell to the ground. The step was 22-1/4 inches high, higher than a “normal” eight-inch step. Claimant’s hand was on a grab bar, absorbing some of his body weight. His right foot was still on the step, with the majority of his weight resting on his left foot. The claimant, who is six feet tall and weighs 240 pounds, testified that stepping down was not strenuous or difficult. In stepping down, he did not twist or rotate his left leg or knee. The pavement was not uneven, and there were no rocks or gravel. The surface was “nice and level.”
Claimant’s medical expert, a medical doctor specializing in sports medicine, testified that claimant suffered a torn left knee meniscus. He further noted that it could “make a difference” to the pressure placed on the knee if some of the body weight was borne by the arms rather than the foot. The physician acknowledged that the force and pressure would be reduced by holding on to the grab bar, but he said he did not know by how much. He repeatedly acknowledged that it would be speculative to determine the reduction in pressure that would be attributable to the grab bar. He testified that, when compared to walking, stepping up would place significantly more pressure on the knee than stepping down. The physician also noted that tears of the meniscus could occur while stepping off of an ordinary eight-inch step. The deputy commissioner found in favor of the claimant, finding that the “unusual height” of the step caused claimant to sustain a compensable injury. The employer appealed to the commission, which reversed the award of benefits.
Analysis by the Court of Appeals
The appellate court observed that in Virginia, simple acts of walking, bending, or turning, without any other contributing environmental factors, were not risks of employment [citing Haley v. Springs Global U.S., Inc., 54 Va. App. 607, 613, 681 S.E.2d 62, 65 (2009)]. Moreover, an injury sustained while descending an ordinary flight of stairs does not “arise under” the employment [citing County of Chesterfield v. Johnson, 237 Va. 180, 186, 376 S.E.2d 73, 76 (1989)]. The court noted that claimant had placed heavy reliance on Reserve Life Insurance Co. v. Hosey, 208 Va. 568, 159 S.E.2d 633 (1968), wherein the Supreme Court of Virginia affirmed an award of benefits to a canvasser who injured her knee while ascending a flight of rock stairs composed of steps that were “‘just a little bit higher than usual for a step.’” Id. at 569, 159 S.E.2d at 634. The Court of Appeals indicated, however, that the Supreme Court subsequently made it clear that the facts in no two cases were identical and that to a certain extent each case must stand alone [Richmond Mem. Hosp. v. Crane, 222 Va. 283, 286, 278 S.E.2d 877, 879 (1981)]. The Court of Appeals stressed that Hosey did not stand for a rule of automatic compensation each time a worker fell after stepping onto a stair of unusual height.
The Court of Appeals agreed with the employer that Haley was controlling. In Haley, as in the instant case, the claimant was injured while stepping off a truck. The step in Haley was sixteen inches off the ground, larger than an ordinary step. In Haley, as in the instant case, there was no medical evidence that the injury was the result of the particular condition of the steps used by the claimant at his workplace, as opposed to the normal conditions found outside of the workplace. Finally, in Haley, the claimant testified that going up and down the steps did not require any abnormal exertion. The court here concluded that like the medical evidence in Haley, and unlike the medical evidence offered by the claimant in Hosey, the medical evidence here did not establish anything more than a speculative link between the injury and the height of the step. The Commission’s decision was, therefore, affirmed.