Falls are among the most common workplace injuries, but they are not always compensable through workers compensation, a sticking point highlighted in recent state court decisions involving unexplained or “idiopathic” falls.
Falls can be triggered by work or the condition of premises, but some can be considered idiopathic and often lead to litigation with unpredictable outcomes, legal experts say, adding that the so-called idiopathic fall defense against claims is usually a best practice.
Slips, trips and falls represent 48% of work injuries among workers 65 and older and 33% among workers between 45 and 64, according to data from the National Council on Compensation Insurance. The injuries, after burns and motor vehicle accidents, incur the third-highest average cost — $49,971 — with medical expenses accounting for just over half, according to the NCCI.
In some states, such as Pennsylvania, idiopathic falls can be accepted as workers comp claims, according to Zachary Rubinich, Philadelphia-based partner at Rawle & Henderson LLP. In others, such claims can prompt investigations, he said.
“Attorneys must find out if the employee had a fall or injury with no clear cause and no work-related objects contributing to the injury,” he said. “Attorneys have to investigate if the employee has a personal condition — such as seizures which are unrelated to work — causing or contributing to the accident.”
J. Bradley Young, a shareholder with Chesterfield, Missouri-based Harris Dowell Fisher & Young LC who practices in Illinois and Missouri, said the issue is fraught with “gray areas” and that sometimes pre-existing physical conditions — such as a bad knee that buckles — can bar such claims in some states.
In many states, “the question is always going to be, did the employment place them at greater risk of injury? If the answer is no, the idiopathic injury is not considered to be compensable because the employment did not place them at greater risk of injury,” Mr. Young said.
Burden-of-proof requirements differ among states.
In Grafton Correctional Facility v. BWC, the Ohio Supreme Court on Sept. 23 reversed a trial court ruling in favor of a worker, stating instead that the prison case manager’s unwitnessed fall in a hallway may not be compensable, as the “injured worker bears the burden of eliminating idiopathic causes for the injury,” and, once the claimant has done so, “an inference arises that the fall is traceable to some ordinary risk, albeit unidentified, to which the employee was exposed on the employment premises.”
The Utah Court of Appeals on Aug. 22 ruled in Ackley v. Labor Commission that a Lowe’s Home Improvement store worker can receive benefits for injuries she suffered from an idiopathic fall while she was working if the injuries were made more severe by the working environment.
The appellate court said that potential workplace hazards “must actually contribute to the injuries sustained” for an increased risk to be present. This means idiopathic falls to level ground on a hard floor might be compensable, “but only if the employee can show, as a factual matter, that the hardness of the floor made the resulting injuries worse,” the court said.
Applying an idiopathic defense “is challenging from a practical level, depending on which state you’re in,” said Emily Truitt, a senior attorney in the Atlanta office of Swift, Currie, McGhee & Hiers LLP, which defends employers.
Ms. Truitt said many claims call for investigations and medical records and that the lag time in obtaining information can put the employer at a disadvantage. Also, many states — such as Georgia — have case law that allows for the compensability of idiopathic falls if specific standards are met.
Other factors unrelated to the cause of a fall can push a claim forward, according to John Ruocchio, partner at Raleigh, North Carolina-based Lewis & Roberts PLLC, which also defends employers.
“It’s highly fact-specific,” he said, adding that parts of injuries that occur in conjunction with an idiopathic fall could be compensable. One example he gave is if a worker hits his or her head on a desk because of an idiopathic fall. The head injury would likely be compensable because the desk is related to the work.
Fighting some idiopathic injury claims can backfire for employers
Employers can consider fighting workers comp claims featuring unexplained falls, but rejecting every idiopathic fall claim can hurt them in court, attorneys warn.
“I don’t think we are at the point where we want to say, ‘Hey, we’re just going to fight every time there’s a fall claim that it’s idiopathic. … That’s not the right track to take,” said Michael Nunnari, a Sandusky, Ohio-based attorney with Wisehart Wright Co., which represents injured workers.
Mr. Nunnari, who spent part of his career representing employers and their insurers, said the burden of proof for idiopathic falls can vary depending on the facts and that taking a hard line can put the employer at a disadvantage in the courts.
Not being “reasonable and compassionate” is an issue that can complicate a potential claim, he said, adding that “frivolous defenses” are common when it comes to idiopathic falls. Employers should also note the states where the courts are more sensitive to workers, said Emily Truitt, a senior attorney in the Atlanta office of Swift, Currie, McGhee & Hiers LLP, which defends employers.
“Often there are cases where you say, ‘You know, it’s too big of a risk before this judge in this district,” she said. “And, so, you opt to say, ‘Let’s accept the claim.’ You have to be very careful where you implement (the idiopathic fall defense).”
This article was first published in Business Insurance.
