Kansas Hospital Worker Recovers for Two Unexplained Falls
Guided by the recent decision of the Supreme Court of Kansas in Estate of Graber v. Dillon Cos., 2019 Kan. LEXIS 67 (Apr. 12, 2019)[extended discussion of Graber can be found here], the Court of Appeals of Kansas rejected an employer's argument that following the 2011 amendment to Kan. Stat. Ann. § 44-508(f)(3)(A), injuries that arise from all neutral risks are no longer compensable [Johnson v. Stormont Vail Healthcare Inc., 2019 Kan. App. LEXIS 47 (July 12, 2019)]. Acknowledging that the force of the amendment barred recovery for accidents and injuries that arise “out of a neutral risk with no particular employment or personal character,” the court affirmed a decision of the state's Workers' Compensation Board awarding benefits to a housekeeping worker at a Topeka hospital for two separate unexplained falls.
Background
Within a span of a few months, Johnson fell twice at work and was injured. She sought workers’ compensation benefits and the Board ruled that she had proved her injuries arose out of and in the course of her employment even though she could not explain why she fell. The hospital contended that since these were unexplained falls, they arose from neutral risks or idiopathic causes, which were not compensable under the Workers’ Compensation Act.
“Employment Character”
On appeal, the appellate court agreed with the Board that pursuant to § 44-508(f)(3)(A), if the record showed that there was a “personal character” to the incident or injury, there would be no compensation paid to the injured worker. On the other hand, however, the Board stressed—and the appellate court agreed—here there had been an “employment character” to Johnson’s falls. She had fallen while walking, an activity that her employment required her to do. She had testified that while she could not explain the circumstances, in both instances, her foot had stuck on the floor as she walked. She testified that there was nothing on the floor that might have caused her foot. Still, in both instances, her foot had stuck as she walked and she had fallen.
Court Rejects Argument that Neutral Risks Are Now Noncompensable
The court rejected the hospital’s argument that after the 2011 amendment to the statute, all neutral risks were no longer compensable. The court said, to the contrary, the language of the law expressed an exclusion for neutral risks that had no employment character. If the Legislature wanted to eliminate injuries arising from all neutral risks, it could have said so explicitly. But it did not, said the court.
Recent Graber Decision
After reviewing other earlier cases, the court turned back to Graber. Utilizing the logic within that opinion, the court stressed that if a party wanted to claim an exception, there must be proof of that exception. Under Graber, the injured worker need not prove the negative, that is to say, that her injuries were not from an idiopathic condition. Likewise, if a party claims that the injuries are the result of neutral risks with no particular employment or personal character, the court said there must be proof of those circumstances.
Because the Board made a factual finding that these falls had an employment character, that is, Johnson fell while walking, and walking was a major portion of her job, the court held the Board properly awarded Johnson workers compensation benefits. The Act only exempts from compensation injuries from neutral risks such as unexplained falls that have no employment character.