Oregon Supreme Court Clarifies Standard in Unexplained Fall Cases

Finding that both the Oregon Workers’ Compensation Board and the state’s Court of Appeals had erroneously utilized the appropriate legal standard in their attempts to determine whether a bank employee’s fall was “unexplained” and, therefore, compensable, the Supreme Court of Oregon held that in order to prove that a fall is unexplained, the claimant must prove that there is no nonspeculative explanation for the fall [Sheldon v. US Bank, 364 Or. 831 (2019)]. If facially nonspeculative idiopathic causes for explaining the fall existed, then the claimant was required to offer countering evidence sufficient to convince the board that the proposed idiopathic cause was, in fact, speculative.

Background

Claimant fell on her way to work while walking through the lobby of an office building where her employer leased office space. As a result of the fall, claimant suffered a fractured shoulder. At the time of the incident, claimant told paramedics that her foot “got caught and she tripped and fell.” She told an ER nurse that “her foot rolled and she tripped and fell.” At a hearing on her workers’ compensation claim, claimant testified that she felt as if she had tripped over something, perhaps the “lip” of a floor tile. She further testified that there were no obvious hazards in the lobby that could have caused her to fall.

The employer contended claimant’s injuries were not compensable because her fall could have been caused by idiopathic factors, specifically, claimant’s diabetes and obesity. A medical expert hired by the employer opined that claimant’s call could have been caused by symptomatic manifestations of diabetes and obesity. Claimant countered that she had never been diagnosed with peripheral neuropathy. She admitted some “tingling” in her feet in the past, but denied that the tingling ever caused her to fall.

ALJ’s Decision

The ALJ found that claimant had eliminated idiopathic causes, but concluded that the claim was barred by the going and coming rule. She had been on her way to work and the employer did not maintain control over the lobby area where she fell.

Board’s Decision

The board affirmed the denial of compensability, but on a different ground. The board concluded that in order to establish that a fall was unexplained, the claimant must “persuasively eliminate” all idiopathic factors of causation. The board stressed that an injury could not be said to have arisen from the employment if it was “equally possible” that the fall resulted from an idiopathic cause or some other cause. Applying that standard, the board concluded that the claimant had failed to establish that her fall was unexplained.

Court of Appeals’ Decision

The Court of Appeals vacated the board’s decision, determining that it had applied the wrong legal standard for determining what it means to persuasively eliminate idiopathic factors.

Supreme Court’s Decision

The Supreme Court agreed with the Court of Appeals to the extent that it found the board’s methods erroneous. The high court said the Court of Appeals nevertheless also had it wrong. The difficulty was in the board’s and the lower court’s understanding of the Livesley decision [Livesley Co. v. Russ, 296 Ore. 25, 672 P.2d 337 (1983)].

Earlier Livesley Decision

The high court stressed that although Livesley did not answer the question presented in the instant case, Livesley did play a central role in framing the question presented. The Supreme Court admitted that parts of the Livesley decision were less than totally clear, yet most of that confusion had been resolved by subsequent decisions. The key difference between the issues in the instant case and those in Livesley was that here, the parties disagreed about threshold questions: namely, whether the claimant’s fall was unexplained and whether claimant had eliminated the idiopathic causes of her fall.

Eliminating All Theoretical Causes Cannot Be Required

Agreeing with the Court of Appeals, the Supreme Court said that a claimant need not eliminate all theoretically possible idiopathic causes, noting that in virtually very case, there might be some theoretically possible explanation that could not be disproven. The Court added that the very idea of proving that an event is unexplained is an awkward one, in as much as the usual reason that an event is unexplained is because there is an absence of evidence supporting any explanation.

Speculative Versus Nonspeculative Explanations for the Fall

The Court stressed that determining whether a fall is explained or unexplained is not a matter of determining which explanation is the best explanation or even which explanation is the likeliest explanation. Instead, determining whether a fall is explained or unexplained is a matter of determining whether there are any “nonspeculative explanations.” If there is a nonspeculative explanation, then that explanation prevents the claimant from establishing that the fall is unexplained. If there is no nonspeculative explanation available, then the fall is unexplained. If there are some facially nonspeculative idiopathic causes for explaining a fall, then the claimant must offer countering evidence sufficient to convince the board that the proposed idiopathic cause is, in fact, speculative.

The Court observed that this is exactly what had happened in Livesley. There the claimant suffered from vertigo. To the extent that the claimant’s vertigo established a facially nonspeculative idiopathic explanation for the fall, both the board and the Court of Appeals concluded that the claimant satisfactorily countered that evidence with his own testimony that he did not experience any symptoms of vertigo immediately before his fall and with his physician’s testimony discounting any pre-existing condition or weakness that could have caused the claimant to fall.

Remand Required

The Court concluded that in the instant case, in order to determine that the fall was unexplained, the board must find that there was no nonspeculative explanation for the fall. The board had not done so and the case had to be remanded, therefore, for such an examination and finding.