West Virginia High Court Says Unexplained Fall is Compensable

In a memorandum opinion, the Supreme Court of Appeals of West Virginia affirmed a decision by the state’s Workers’ Compensation Office of Judges, which had been affirmed by the Board of Review, holding that a nurse’s trip and fall injury while walking to lunch through a hospital tunnel was compensable [American Med. Facilities Mgmt. v. Parsons, 2021 W. Va. LEXIS 212 (Apr. 23, 2021)]. While the Court did not specifically indicate that it was employing the “unexplained fall” doctrine (see Larson’s Workers’ Compensation Law § 7.04[1]), the Court’s decision is essentially in line with those from a majority of jurisdictions that award benefits for injuries sustained in an unexplained fall on a level, unobstructed floor , as long as the fall occurs on the employer’s premises. The unexplained fall doctrine employs what amounts to a “but for” the employment factor and, as noted in Larson, comes perilously close to adopting a positional risk doctrine.

Background

Parsons, a nurse, was injured on May 29, 2018, when she fell while walking to lunch. She sought treatment immediately in the hospital’s Emergency Department. She was diagnosed with acute head injury and abrasions to the left knee and left elbow. In the Emergency Department, caregivers noted that Parsons reported that she was not sure how she had fallen. She indicated to the staff that she had not tripped over anything.

The Employees’ and Physicians’ Report of Injury indicated that Parsons fell when her feet “got stuck,” and she fell the the ground. Later the employer completed a report for its insurer in which it was noted that Parsons reported that she was walking to lunch while talking to coworkers when her feet got stuck and she fell. The claims administrator rejected the claim on June 1, 2018, stating that the injury did not occur in the scope of Parsons’ employment.

Office of Judges

The Office of Judges reversed the claims administrator’s rejection of the claim and held the claim compensable for head injury and abrasions of the left knee and left elbow. The office stressed that the injury occurred in the scope of Parsons’ employment because she was on a work-mandated lunch break on company property when her fall occurred. The office added that walking to lunch did not constitute a deliberate excursion from Parson’s employment.

Supreme Court of Appeals Agrees

In cursory fashion, the Supreme Court of Appeals agreed, indicating:

After review, we agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review. Ms. Parsons has shown by a preponderance of the evidence that she sustained an injury in the course of and resulting from her employment. Ms. Parsons was within the scope of her employment when she slipped and fell while walking to an employer owned breakroom for a mandated lunch break. The decision of the Board of Review is therefore affirmed.

Comment

If one reads the Court’s conclusory paragraph just quoted, one sees that while the Court clearly indicated the “course of employment” segment of the causation issue had been supplied by the fact that Parsons was on the employer’s premises and that she was transitioning to a mandated lunch break within an employee-owned break room. Note that there is precious little to supply the other part of causation: that the injuries arose from the employment. That is to say, neither Parsons nor the Office of Judges, nor the Supreme Court of Appeals offered any fact that would show that the injury flowed from a risk that was associated with her employment. Walking down an unobstructed, level floor—generally speaking—is not a risk of employment.

Courts in virtually all jurisdictions strenuously object to the use of the positional risk doctrine in workers’ compensation injury cases. And yet, as pointed out in Larson, notwithstanding the fact that the burden of proof is upon the claimant to show that her fall arose from both the course and scope of the employment, in these unexplained fall (as well as unexplained death) cases, the ordinary burden of proof is typically suspended. Its one of those mysteries that move within the system of providing indemnity and medical benefits to those who are injured “on the job”—a term oft used, yet a term which has no actual place within our system. Disagree? Let me hear from you.