                                                    RENDERED : JUNE 25, 2009
                                                           TO BE PUBLISHED


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                              2008-SC-000853-WC


                                                                     '(ill   oq     ~C.lal   .   a~e. .
 VACUUM DEPOSITING, INC.                                             APPELLANT


                  ON APPEAL FROM COURT OF APPEALS
V.                   CASE NO. 2008-CA-000797-WC
              WORKERS' COMPENSATION BOARD NO. 07-96080


TAMATHA DEVER; HONORABLE A. THOMAS
DAVIS, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD                                      APPELLEES


                           OPINION OF THE COURT

                                  AFFIRMING

      An Administrative Law Judge (ALJ) dismissed the claimant's application

for benefits, having found that evidence she was "clumsy" and wearing high

heels at the time of a workplace fall rebutted the presumption it was work

related and that the weight of reliable evidence showed it did not arise from her

employment. The Workers' Compensation Board (Board) reversed and

remanded on the ground that the ALJ misapplied the law. The Court of

Appeals affirmed.

      Appealing, the employer argues that substantial evidence of a non-work-

related cause for the fall reduced the rebuttable presumption of causation to a

permissible inference and that the Board erred by substituting its judgment for
the ALJ's regarding the weight and credibility of evidence. We affirm because

the ALJ misapplied the law. The employer failed to meet its burden to rebut

the Workman presumption' because the claimant's testimony that she

considered herself to be clumsy and that she was wearing shoes with two-inch

heels was not substantial evidence to prove a non-work-related cause.

      The claimant was born in 1968 and is a college graduate and licensed

real estate appraiser. She worked for the defendant-employer as an account

manager. Her application for benefits alleged that she fractured her right wrist

and injured her right hip and low back in a workplace fall that occurred on

January 3, 2007.

      The claimant testified that she slipped while walking towards a vending

machine in the break room and fell in a seated position with both arms behind

her, palms down. No one else was in the break room at the time and she did

not recall if anything was on the floor at the time . She stated, however, that

there was always paper on the floor and that the garbage cans were always

overflowing . She did not know why she fell.

      The claimant testified that she experienced pain and swelling in her wrist

immediately after the fall . She reported the injury to Myra Dempsey and went

to BaptistWorx where she was referred to a hand surgeon for treatment of a

fractured wrist . She began to experience hip and back pain about a week later.

Although she stated that she had experienced back pain previously, she did


' See Workman v. Wesley Manor Methodist Home, 462 S.W.2d 898, 900 (Ky. 1971) .
                                        2
 not remember when she was last treated for the condition . Nor did she recall

 having a CT scan in 2004 .

       Myra Dempsey, company controller, testified that the claimant was

wearing high heels when she fell. Dempsey stated that, when reporting the fall,

the claimant explained that she was clumsy; that she "just turned around and

fell and had no idea how;" and that she was "the only person she knew that

could fall while standing still." Dempsey stated that it was neither unusual nor

inappropriate for female employees to wear high heels to work.

       Michael Krafka, first shift supervisor, testified that he inspected the

break room after the fall. He reported that he found "no liquid or debris

around the area where the fall occurred that could have contributed to the

accident." He noted that the claimant concurred by stating, "I just turned

around and fell and have no idea how it happened ."

      The claimant testified at the hearing that all of the women in the

company's offices wore high heels at times and that she was wearing boots with

about two inch heels when she fell. She denied being dizzy or feeling any pain

at the time. Describing the fall, she stated that she walked towards the

vending machine, stood there, and turned around and slipped and fell. She

testified that there was some trash by the machine and that there was "always

stuff on the floor in the break room." She denied telling Dempsey that she

could fall while standing still and denied speaking with Krafka about the fall .
      The employer asserted that the fall was idiopathic . It maintained that

evidence the claimant was clumsy and wearing shoes with high heels rebutted

the Workman presumption . It also maintained that her hearing testimony

regarding trash on the floor of the break room was not credible.

      The ALJ found the claimant not to be credible and questioned the

veracity of her testimony about the fall, noting her inability to remember the CT

scan and treatment for back pain ; her changing testimony about whether there

was debris on the floor when she fell ; her previous lawsuit for a slip and fall

accident; and the fact that she took cell phone photographs two days after the

fall presently at issue . The ALJ viewed the claim as being "a classic . .

idiopathic fall case," and found the positional risk doctrine to be inapplicable

because the claimant struck nothing as she fell . The ALJ found that the

claimant admitted she had no idea how she fell, was clumsy, and was wearing

high heels at the time of the accident. Analyzing the evidence to rebut the

presumption of work-relatedness, the ALJ stated:

            The best interpretation is that she merely turned
            around and fell down, and her work, in no way,
            contributed to the cause of her fall. The Plaintiff told
            Ms. Dempsey that she is "clumsy," and the additional
            evidence that Ms. Dever was wearing high heels at the
            time, constitutes sufficient evidence for the ALJ to
            reduce the rebuttable presumption of the fall arising
            out of the work situation to simply a permissible
            inference . . . . [T]here is nothing about the
            circumstances of the Plaintiffs fall that suggests her
            work contributed to the cause of the fall. The fall
            could just have as easily occurred when the claimant
            was on any other level surface anywhere . It is the
                ALJ's perception that it is very likely that an element
                of clumsiness and instability of high heels is involved.

    The ALJ concluded that the evidence rebutted the Workman presumption,

    reducing it to a permissible inference, and that the weight of reliable evidence

    showed the fall did not arise from the claimant's employment .

          KRS 342 .0011(1) required the claimant to prove that her injury arose

both out of and in the course of her employment. In common parlance, the

term "idiopathic" means "arising spontaneously or from an obscure or

unknown cause ."2 The term is used differently in the workers' compensation

arena. Professor Larson explains that an analysis of whether a workplace

injury arises out of the employment begins by considering the three categories

of risk: 1 .) risks distinctly associated with employment; 2 .) risks that are

idiopathic or personal to the worker; and 3.) risks that are neutral. 3 Larson

notes that "unexplained fall cases begin with a completely neutral origin of the

mishap, while idiopathic fall cases begin with an origin which is admittedly

personal . "4 The latter group involves an idiopathic or personal factor that

would have resulted in harm regardless of the employment, such as a pre-

existing disease or physical weakness, personal behavior, or a personal mortal

enemy. 5 Larson notes also that unsuitable clothing may be considered to be an



2 http://www.merriam-webster .com/dictionary/idiopathic.
3 Arthur Larson and Lex K. Larson, Larson's Workers' Compensation Law, § 4 (2006) .

4 Larson's , § 9.01[l] .
5 Larson's , supra, at §§ 7
                          .04[1][b] and 9 .01-.02 .
                                            5
imported or personal risk.6 Kentucky cases addressing unexplained and

idiopathic falls involve a back condition,? heart attack,$ an epileptic seizure, 9

and an allegation of syncope. 10

       Kentucky has adopted a presumption that an unexplained workplace fall

arises out of the employment unless the employer presents substantial

evidence to show otherwise . ll The employer cannot prevail in such a case

unless it shows affirmatively that the fall was not work-related. The employer

in Workman did so by showing that Ms. Workman's testimony in the workers'

compensation claim conflicted with her testimony in an unrelated civil suit that

her back had been symptomatic and caused her to fall before the incident at

work. The court determined that the employer offered sufficient evidence that

the fall was idiopathic to negate the presumption that it was not.

      The court explained subsequently in Turbyfill that an idiopathic fall may

be compensable if work places the injured worker in a position that increases

its dangerous effects. 12 Turbyfill's employer negated the Workman

presumption by showing that his fall resulted from a non-work-related heart



6 Larson's , supra, at § 9.03[5] .
  Workman, supra.
8 Indian Leasing Company v. Turbyfill, 577 S .W.2d 24 (Ky. App. 1978)_

9 Stasel v. American Radiator & Standard Sanitary Corporation, 278 S.W.2d 721 (Ky.
    1955) .
to Jefferson Count
     208 S .W.3d 862 (Ky. 2006).
11 Workman, 462 S.W.2d at 900-02.

12 577 S .W.2d 24.
attack. The court found the fall to be compensable, however, because the fact

that he was working 12 feet off the ground increased the fall's effects.

      To summarize, a work-related fall occurs if the worker slips, trips, or falls

due to causes such as a substance or obstacle on the floor of the workplace or

an irregularity in the floor. When the cause of a workplace fall is unexplained,

the fall is presumed to be work-related under Workman. Unexplained falls

divide ultimately into two categories: 1 .) those the employer has shown to

result from a personal or idiopathic cause but which may be compensable

under the positional risk doctrine; and 2 .) those that remain unexplained and

entitled to a presumption of work-relatedness.

      The claimant alleged an unexplained fall but, as in Workman, the ALJ

found that the employer rebutted the presumption of work-relatedness and

showed the fall to be personal or idiopathic . The employer asserts that the

Board erred by substituting its judgment for the ALJ's and, thus, that the

Court of Appeals erred by affirming the Board . We disagree.

      The ALJ characterized the claimant as "not an entirely credible witness"

but determined that a workplace fall occurred although its cause was

idiopathic . The fact that the claimant's work did nothing to cause her fall was

immaterial under Workman. The record contained no evidence that she

suffered from a pre-existing disease or physical weakness that caused her to

fall and no evidence that she was engaged in conduct when she fell that would

take the injury outside Chapter 342 . Nor did the record contain evidence that
her footwear was inherently dangerous and inappropriate for work in the

employer's offices . Like the Board and the Court of Appeals, we are convinced

that evidence the claimant was clumsy and wearing high heels was not

sufficient to prove that the cause of her fall was idiopathic. The evidence did

not overcome the presumption that the fall was unexplained and, thus, that it

was work-related .

      The decision of the Court of Appeals is affirmed .

      All sitting. All concur .




COUNSEL FOR APPELLANT,
VACUUM DEPOSITING, INC . :

Brian T. Gannon
Fulton 8v Devlin
2000 Warrington Way
Suite 165
Louisville, KY 40202


COUNSEL FOR APPELLEE,
TAMATHA DEVER:

Dana Taylor Skaggs
One Riverfront Plaza
401 West Main Street
Suite 1706
Louisville, KY 40202
