In the Matter of the Compensation of Catherine A. Sheldon, Claimant.
US BANK, Petitioner on Review. Catherine A. SHELDON, Respondent on Review,
and submitted September 21, 2017.
review from the Court of Appeals (WCB 12-04027) (CA A156285).
P. Keene, Oregon Workers' Compensation Institute, LLC,
Oceanside, argued the cause and filed the briefs for
petitioner on review.
Spencer D. Kelly, Welch Bruun & Green, Portland, argued
the cause and filed the brief for respondent on review.
Phillips Polich, Milwaukie, filed the brief for amicus curiae
Oregon Trial Lawyers Association.
Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan,
and Nelson, Justices. [**]
Or. 832] Case Summary: Claimant fell on her way to work while
walking through the lobby of an office building where
employer leased office space. As a result of the fall,
claimant fractured a bone in her shoulder. She argued that
her injury arose out of her employment because her fall was
unexplained. According to claimant, she established that her
fall was not caused by idiopathic factors, such as her
personal medical conditions. The Workers' Compensation
Board concluded that claimant failed to eliminate idiopathic
causes, because she failed to present evidence that her
medical conditions could be ruled out as possible causes of
the fall. The Court of Appeals vacated and remanded the case
after concluding that the board misapplied the standard for
establishing that a fall is unexplained. Held: in a
workers' compensation case, to establish that a fall is
unexplained, a claimant must establish that there is no
nonspeculative explanation for the fall.
decision of the Court of Appeals is affirmed. The decision of
the board is vacated, and the case is remanded to the board
Or. 833] DUNCAN, J.
workers' compensation case, claimant injured her shoulder
after falling in the lobby of the office building where she
worked. Claimant contends that she suffered a compensable
injury that arose out of employment because her fall was
unexplained and occurred at work. Employer, U.S. Bank,
contends that the injury was not unexplained because claimant
failed to eliminate idiopathic factors related to her
personal medical conditions that might have caused her
Workers' Compensation Board (the board) concluded that
claimant failed to establish that her fall was unexplained.
The Court of Appeals held that the board applied the wrong
standard, vacated the board's decision, and remanded the
case to the board to apply the standard in the manner
directed by that court. Sheldon v. U.S. Bank, 281
Or.App. 560, 571, 381 P.3d 1006 (2016). Although we disagree
with the standard expressed by the Court of Appeals, we
nevertheless reach the same result for the reasons explained
below. We therefore affirm the decision of the Court of
Appeals, vacate the board's decision, and remand the case
to the board.
legal background is useful before describing the facts and
procedural history in this case. A claimant bears the burden
of proving that his or her injury is compensable. ORS
656.266(1). "A 'compensable injury' is an
accidental injury *** arising out of and in the course of
employment requiring medical services or resulting in
disability or death." ORS 656.005(7)(a). "The
phrases 'arise out of and 'in the course of are two
elements of a single inquiry into whether an injury is
work-related. This is called the 'work-connection'
test." Redman Industries, Inc. v. Lang, 326 Or.
32, 35, 943 P.2d 208 (1997) (quoting Fred Meyer, Inc. v.
Hayes, 325 Or. 592, 596, 943 P.2d 197 (1997)). "The
'in the course of employment prong requires that the
time, place, and circumstances of the injury justify
connecting the injury to the employment." Robinson
v. Nabisco, Inc., 331 Or [364 Or. 834] 178, 186, 11 P.3d
1286 (2000). The "arising out of employment prong
"requires that 'some causal link exist' between
the worker's injury and his or her employment."
Id. (quoting Krushwitz v. McDonald's
Restaurants, 323 Or. 520, 526, 919 P.2d 465 (1996)).
the unitary test for work-connectedness, a claimant cannot
establish a compensable injury unless both the "arising
out of employment prong and the "in the course of
employment prong are satisfied to at least "some
degree." Redman Industries, 326 Or at 35. The
board in this case concluded that claimant failed to prove,
even to some degree, that her injury arose out of employment
and, as a result, never reached the question of whether
claimant established that her injury occurred in the course
of employment. Thus, the dispute before us centers on the
"arising out of employment prong.
establish that an injury arose out of employment, a claimant
must establish that the injury "had its origin in a risk
connected with the employment or rationally and naturally
incidental thereto." Phil A. Livesley Co. v.
Russ, 296 Or. 25, 32, 672 P.2d 337 (1983). There are
three types of risks: employment risks, personal risks, and
neutral risks. Id. at 29-30. Employment risks are
those risks that are "distinctly associated with the
employment." Id. (internal quotation omitted).
Personal risks are "risks personal to the
claimant." Id. (internal quotation omitted).
And neutral risks are risks that are neither employment risks
nor personal risks. Id. at 30.
injury arising out of employment is not confined to injuries
that result from employment risks. Instead, an injury arises
out of employment if either (1) the injury results from an
employment risk or (2) the injury results from a neutral risk
where "'the conditions of employment put [a]
claimant in a position to be injured.'" Panpat
v. Owens-Brockway Glass Container, Inc., 334 Or. 342,
350, 49 P.3d 773 (2002) (quoting Livesley, 296 Or at
29-30). An injury that results solely from a personal risk,
however, does not arise out of employment and is therefore
not compensable. Id.
Or. 835] As relevant to this case, neutral risks where the
conditions of employment put a claimant in a position to be
injured include unexplained falls that occurred on the job.
Id. at 350 ("Unexplained accidents are a
classic example of neutral risks[.]" (Internal quotation
omitted.)). Thus, a claimant may prove that an injury
arose out of employment if the injury resulted from an
unexplained fall that occurred on the job. See
Livesley, 296 Or at 32 (compensating injuries resulting
from an unexplained fall that occurred on the
risks include a claimant's personal medical conditions,
such as conditions that can lead to an idiopathic fall.
See, e.g., Hamilton v. SAIF, 256 Or.App. 256, 259,
302 P.3d 1184 (2013), rev den, 354 Or. 148 (2013)
("[T]he parties agree that the fall was idiopathic in
nature and that the risk of the fall that led to
claimant's injuries was personal to claimant[.]");
see also 1 Larson's Workers'
Compensation Law § 4.02 at 4-2 (describing medical
conditions as personal risks). A claimant cannot prove that
an injury arose out of employment if the injury resulted
solely from an idiopathic fall.
distinction between an unexplained fall and an idiopathic
fall frames the parties' dispute in this case. Claimant
fell on her way to work while walking through the lobby of an
office building where employer leased office space. As a
result of the fall, claimant fractured a bone in her
shoulder. Paramedics responded, and claimant told them that
she had been "walking and then her foot got caught and
she tripped and fell." Claimant was transported by
ambulance to a hospital, and she told an emergency room nurse
that "her foot rolled and she tripped and fell."
Or. 836] Claimant filed a workers' compensation claim,
which employer denied. Claimant then requested a hearing
before an administrative law judge (ALJ). At the hearing,
claimant testified that she fell because she tripped over
something. Claimant did not know what caused her to trip, but
she suspected that her foot got caught on the lip of a floor
tile because she was unable to identify any other hazards in
the lobby that could have caused her fall. Claimant admitted
that the tile lip was not "real big."
Employer's investigator determined that the tile had
"the slightest of a lip," probably around 1/16th of
an inch, a measurement that sounded correct to claimant.
contended that claimant's injuries were not compensable
because her fall could have been caused by idiopathic
factors, specifically, claimant's diabetes and obesity.
In support of its contention, employer submitted a letter
opinion by a physician, Dr. Bell. Bell had reviewed
claimant's medical records but had never examined
claimant personally. Based on her review of claimant's
records, Bell opined that claimant's diabetes was a
"potential contributing cause" in her fall because
diabetes "is known to cause peripheral neuropathy"
and "[p]eripheral neuropathy in the lower extremities *
* * affects sensation and reflexes." Bell also opined
that claimant's obesity was "a potential
contributing factor" in her fall because it "most
likely affected her balance and mobility." Bell
concluded that "symptomatic manifestations of diabetes
and obesity could have caused [claimant] to fall." She
further concluded that it was "at least equally possible
[claimant's] fall *** was caused by idiopathic problems
associated with diabetes and/or obesity as it was due to
risks associated with employment."
testified that she had never been diagnosed with peripheral
neuropathy. She admitted that she had experienced "some
tingling" in her feet in the past, but she denied that
that tingling had ever caused her to fall. Claimant testified
that she had never experienced balance [364 Or. 837] or
mobility problems because of her obesity. In addition, she
reported that she had scored in the "high 90 percent
range" in post-injury balance testing and was determined
not to be at risk of falling. In her testimony, claimant also
mentioned an additional medical condition; she reported that
she had broken her ankle decades earlier and had experienced
some intermittent weakness and swelling in that ankle.
submitted a letter opinion and testimony from her primary
care physician, Dr. Kelly. Kelly had been claimant's
primary care physician for ten years before her fall. He
stated that claimant had no history of problems with balance
or mobility and that he had observed her walking without any
impaired balance or mobility on numerous occasions. Kelly
also stated that, although claimant was taking medication for
hypertension that can cause lightheadedness, she had never
reported that the medication had caused her to feel
lightheaded. Kelly acknowledged that claimant's diabetes,
obesity, ankle weakness, and medication had the
"potential" to have contributed to her fall. But he
emphasized that he had "no way of knowing" ...