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Blurred Lines: Are the “Arising Out Of” and “Course of Employment” Prongs Still Distinct Requirements for Work-Related Falls

T. Cory Ezzell, Amity S. Edmonds
Ezzell-Edmonds

Two recent Supreme Court decisions have left employers in South Carolina wondering whether the two-pronged test for an injury to be found compensable under the South Carolina Workers’ Compensation Act has been eroded, at least with regard to work-related fall injuries.  Specifically, section 42-1-160 expressly states that an injury under the Act is defined as an “injury by accident arising out of and in the course of employment.”[2]  However, as suggested by Justice Pleicones, the decisions in Nicholson v. S.C. Dept. of Social Services[3] and Barnes v. Charter 1 Realty[4] have seemingly ignored the conjunctive “and” in the statute, and “erroneously equate[d] these two requirements”[5] of arising out of and in the course of employment.  As pointed out by Justice Pleicones’ dissent in Barnes, “[t]hese two requirements are not synonymous, and the claimant must prove both” to establish a compensable work-related accident.[6]

It is well settled that the “arising out of” component refers to the origin and cause of the injury, while the “course of employment” requirement refers to the time, place, and circumstances of the injury.[7]  While these are independent requirements both of which must be satisfied for an injury to be compensable, the focus of this article is solely on the “arising out of” prong.

I.          Recent Supreme Court Decisions on Work-Related Falls

In Nicholson, a DSS employee fell when her foot caught on the carpet of a level hallway at work while on her way to a meeting.  At the hearing before the Single Commissioner, she testified that she fell due to her foot getting stuck on the carpet from friction.[8]  Compensation was initially denied by the Single Commissioner after determining she had failed to establish a causal connection between her fall and the employment, as “there was nothing specific to the floor at DSS which contributed to [her] fall and . . . [she] could have fallen anywhere.”[9]  A split panel of the Full Commission reversed, finding her fall was neither unexplained nor idiopathic, but rather the result of the friction on the carpeted area where she was required to work.[10]  Thereafter, the Court of Appeals reversed the Full Commission, agreeing that the fall was not idiopathic or unexplained, but holding that because the carpet was not a hazard or special condition peculiar to the claimant’s employment which contributed to or caused the fall, the injury did not arise out of her employment as a matter of law.[11]

In Barnes, the claimant testified she stumbled and fell while hurrying to her supervisor’s office to check the supervisor’s emails.[12]   She was unable to pinpoint a specific cause of the fall, other than stumbling while on her way to the supervisor’s office.  The Single Commissioner denied the claim on the basis that there was no explanation for the fall and it was not caused by a particular hazard or deficiency with the carpet; therefore, holding the fall was idiopathic and not compensable.[13]   The Appellate Panel of the Commission and the Court of Appeals affirmed the decision.

The Supreme Court ultimately found both falls were compensable and had arisen out of the claimants’ employments.  The basis for their findings is explained in more detail in the following subsections.

A.        Barnes v. Charter 1 Realty Supreme Court Rationale

In Barnes, the Supreme Court held the claimant’s fall was not idiopathic in nature as a matter of law, and set forth to clarify the scope of the idiopathic exception to compensability.[14]  The Court outlined that an “idiopathic fall is one that is ‘brought on by a purely personal condition unrelated to the employment, such as heart attack or seizure,’” and that idiopathic injuries are generally not compensable unless the employment contributed to the severity of the injury. [15]

In distinguishing the facts at issue in Barnes from those in Crosby v. Wal-Mart Store, Inc.,[16] widely accepted as one of the chief cases addressing idiopathic falls/injuries, the Court noted that in Crosby there was testimony which indicated the claimant’s leg “gave out” to support the conclusion that the fall was idiopathic and the result of an internal failure or breakdown of the knee.[17]  Alternatively, the lower courts’ opinions in Barnes simply concluded the claimant’s fall was idiopathic in nature, without any specific finding that the fall was caused by an internal breakdown personal to the employee, which the Supreme Court concluded was an error of law.[18]  The Court goes on to state that a finding “that a fall is idiopathic is not warranted simply because the claimant is unable to point to a specific cause of her fall.”[19] Simply put, the Court distinguished between an unexplained fall and one that occurs due to an internal breakdown personal to the employee.

After establishing the idiopathic defense was improper without a finding that the claimant’s fall was caused by an internal breakdown, the Court went on to analyze whether Barnes’ accident arose out of her employment.  Without an abundance of discussion or citing to any evidence presented by the claimant as to what conditions or circumstances associated with her employment caused or contributed to her fall, the Court held that because she was performing her job when she fell, her injuries arose out of her employment.[20]

 B.        Nicholson v. S.C. Department of Social Services Supreme Court Rationale

In Nicholson, the claimant’s fall was never characterized as idiopathic by the lower courts, so the focus of the Supreme Court opinion was solely whether an injury arises out of employment when the claimant falls while carrying out a task for her employer where there is no evidence that a specific danger or hazard of the work caused the fall.[21]  The Court found that the Court of Appeal’s reliance on Bagwell v. Burwell, Inc.[22] to support its opinion that the claimant’s fall was not compensable, because it was not due to a hazard or special condition peculiar to her employment, was improper under the facts.  Specifically, the Court found that the Bagwell Court looked to whether there was a work-related hazard only after concluding the claimant’s injury was caused by an idiopathic condition personal to the claimant.  The Court rejected the notion that the hazard must have caused the fall under the Bagwell analysis, but rather is only applicable when determining whether a hazard resulted in an increased effect from an otherwise non-compensable injury (e.g. when a claimant’s knee gives way causing him to fall, which would otherwise be non-compensable, but he hits a piece of machinery as he is falling, thus increasing the risk of injury and resulting in a finding of compensability).

Ultimately, the Court opined that the Court of Appeals erred in requiring a claimant to prove the existence of a hazard or danger of employment which caused their injury, stating that by doing so they “erroneously injected fault into the workers’ compensation law.”[23]  Accordingly, the Court held that because the circumstances of the claimant’s employment required her to walk down the hallway to perform her job duties and in the course of those duties she sustained an injury, she had satisfied her burden of establishing a causal connection between her employment and her injuries.[24]  However, what the Court did not acknowledge or discuss was that the claimant has the burden of establishing their injury arose out of the employment, which has been defined by our courts as an injury which can “fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would not have been equally exposed apart from the employment.”[25]

Importantly, in his concurrence in Nicholson and his dissent in Barnes, Justice Pleicones noted the majority misapplied the “arising out of” requirement by equating it to the “in the course of” requirement under the facts of these cases.[26]  Noting that South Carolina is in the minority of jurisdictions that deny compensation for unexplained falls, a premise that was seemingly ignored by the majority opinions, Justice Pleicones opined the claimant must present specific evidence as to what caused the fall to prove a compensable injury.[27]  While he felt the claimant in Nicholson had met her burden, presumably through her testimony that the fall was caused by friction on the employer’s carpet,[28] he opined the claimant in Barnes had presented no evidence that her fall arose out of her employment by establishing her fall on a level surface was the result of a special condition or circumstance.[29]  Notably, he cited the Bagwell decision for the proposition that the claimant has this burden.

II.        What Remains of the “Arising Out Of” Requirement

Our courts have repeatedly quoted the Supreme Court decision in Douglas v. Spartan Mills, Startex Div.,[30] when discussing the “arising out of” prong, which stands for the proposition that “an injury arises out of employment if it is proximately caused by the employment.”[31]  Importantly, the often quoted test from Douglas goes on to state that the arising out of requirement excludes an injury “which comes from a hazard to which the workmen would have been equally exposed apart from employment . . . [and that] the causative danger must be peculiar to the work and not common to the neighborhood.”[32]

Interestingly, despite specifically noting the Douglas decision in the Nicholson opinion, it would seem the Supreme Court blurred the test previously set forth without actually overruling their prior opinion.  Specifically, in Nicholson, the Court found that the Douglas test “simply establishes that an injury is not compensable absent some causal connection to the workplace” and that the claimant’s burden of establishing a causal connection is satisfied by showing merely that “but for the claimant being at work, the injury would not have occurred.”[33]  Likewise, in Barnes, the court held that the claimant’s injuries arose out of her employment as a matter of law because she “clearly established that she was performing her job when she sustained an accidental injury.”[34]

In other words, without outright overruling Douglas’s test that the purported causative danger must be “peculiar to the work and not common to the neighborhood,” it would seem these recent opinions have more or less replaced the arising out of requirement with the course of employment requirement, at least from a practical standpoint.  It would seem that following these opinions, the claimant need only establish they were at work performing their regular job duties when an accidental fall and resulting injury occurred, regardless of whether there was anything specific or peculiar about the work environment itself which presented an increased risk.

It remains to be seen whether the Supreme Court’s recent analysis of fall injuries will carry over to other factual scenarios, despite the host of South Carolina cases confirming that the causative danger must be peculiar to the claimant’s work place.[35]  What is clear is that when dealing with a work-related fall, the employer must investigate what caused the fall, as well as any potential internal or idiopathic causes of the same.  As a practical matter, the impetus will be upon the employer to focus their investigative efforts on determining whether other employees/witnesses were aware of a potential internal breakdown or whether prior medical evidence establishes an idiopathic cause personal to the claimant.  Examples of internal conditions which should be considered are degenerative conditions, syncope or seizures, heart conditions, or side effects from medication the claimant was taking at the time.  Additionally, in defending unexplained fall cases, it will be important that a specific finding of an internal breakdown be established at a compensability hearing, rather than a mere finding that the fall was unexplained, in order for the finding of an idiopathic fall to withstand appellate review.

With the foregoing said, it is important to keep in mind that both Nicholson and Barnes involved factual scenarios where a claimant was walking and tripped while on their way to perform a work duty.  Thus, other unexplained injuries without any causative danger peculiar to the employment would arguably still fall outside traditional notions of an injury by accident arising out of employment, as outlined by other binding precedent such as Miller v. Springs Cotton Mills.[36]

In Miller, the claimant was denied compensation after twisting her knee while getting up from a table.[37]  While there was no medical evidence indicating any specific internal breakdown to explain the knee injury, the Supreme Court upheld the denial of compensation finding the claimant had failed to establish she suffered an injury by accident, stating she “simply [had] some internal failure or breakdown in the knee which might have happened at any time.”[38]  Notably, in supporting their denial of compensation the Court indicated that sustaining “an award of compensation in the instant case would necessitate opening the floodgates and holding that every internal failure suffered by an employee in the course of his employment becomes an accident just because it happens.”[39]

Miller remains good law in South Carolina and was not undermined by the Supreme Court’s opinions in Nicholson or Barnes.  Accordingly, employers should continue to deny injuries that cannot fairly be traced to the employment as a contributing proximate cause.  In particular, Miller supports the position that an injury does not arise out employment where there is no accident.  When a claimant is performing normal activities and alleges a resulting injury, a presumption or assumption that it was due to an internal breakdown and was therefore idiopathic appears to remain supported by the Act and controlling cases like Miller.  A few examples of scenarios where denial remains proper are an alleged knee injury while walking normally on flat ground with no causative factor (i.e., a claimant experiencing a pop in their knee while simply walking), an alleged back injury while standing up from a seated position, or bending over to pick up a pen or work document off the ground.  None of these examples involve any particular hazard or causative factor associated with employment and the circumstances certainly suggest an internal breakdown was the cause since no clear accident, such as a fall, took place.  As such, unless the claimant can point to a specific causative danger or factor stemming from employment, employers should deny such cases as not arising out of employment as required under section 42-1-160.

Accordingly, while it would seem the lines have been somewhat blurred between the two distinct requirements of “arising out of” and “course of employment” to establish a compensable injury under the Act, going forward the holdings in Nicholson and Barnes should be distinguished from scenarios in which there is no evidence of a distinct causative danger arising out of the employment.  To satisfy their statutory burden, it appears that claimants must still identify a specific causative factor or danger associated with their employment, such as friction from carpet like in Nicholson, to establish a compensable injury.  Merely being at work and performing work duties is sufficient to satisfy the “course of employment” requirement, but that alone should remain insufficient to establish “arising out of” prong under the Act.  While fault of either the employer or employee certainly has no role in our workers’ compensation laws, causation remains a vital legal hurdle for compensability under section 42-1-160 and should not be ignored going forward.  Thus, employers and carriers must continue to look for a specific causative factor tying the alleged accident to the claimant’s employment before accepting a claim as compensable.

 

The Defense Line
South Carolina Defense Trial Attorneys’ Association
Fall 2015, Volume 43, Issue 2

 

Footnotes

[1] T. Cory Ezzell is a shareholder and Amity S. Edmonds is an associate in Gallivan, White & Boyd, P.A.’s Greenville office.  Both practice in the firm’s Workplace Practices Group, focusing primarily on workers’ compensation defense and litigation.

[2] S.C. Code Ann. § 42-1-160 (emphasis added).

[3] 411 S.C. 387, 769 S.E.2d 1 (2015).

[4] 411 S.C. 391, 768 S.E.2d 651 (2015).

[5] Id. at 399-400, 768 S.E.2d at 655; Nicholson, 411 S.C. at 390-91, 768 S.E.2d at 6.

[6] Id.; See also Osteen v. Greenville Cnty. Sch. Dist., 333 S.C. 43, 49, 508 S.E.2d 21, 24 (1998).

[7] Barnes, 411 S.C. at 398 (citing Osteen, 333 S.C. at 50, 508 S.E.2d at 24); Owings v. Anderson Cnty. Sherriff’s Dep’t, 315 S.C. 297, 433 S.E.2d 869 (1993).

[8] Nicholson v. S.C. Dept. of Social Servs., 405 S.C. 537, 541, 748 S.E.2d 256, 258 (Ct. App. 2013)(reversed on appeal).

[9] Nicholson, 411 S.C. at 383, 786 S.E.2d at 2.

[10] Id. at 384, 786 S.E.2d at 2.

[11] Id.

[12] Barnes, 411 S.C. at 394, 768 S.E.2d at 652.

[13] Id.

[14] Id. at 395, 768 S.E.2d at 653.

[15] Id. at 395-96, 768 S.E.2d at 652 (quoting 2 Modern Workers Compensation § 110:8).

[16] 330 S.C. 489, 499 S.E.2d 253 (Ct. App. 1998).

[17] Barnes, 411 S.C. at 396, 768 S.E.2d at 653.

[18] Id. at 397, 768 S.E.2d at 694.

[19] Id.

[20] Id. at 398-99, 768 S.E.2d at 654-55.

[21] Nicholson, 411 S.C. at 384, 769 S.E.2d at 2.

[22] 227 S.C. 444, 88 S.E.2d 611 (1955) (holding that “the manner in which [the claimant] fell and all the surrounding circumstances . . . indicate that his fall was due to some internal failure or weakness,” and was therefore not compensable where there was no specific medical evidence confirming the reason for the fall but there was also no evidence that the fall was caused by any hazards of his employment).

[23] Nicholson, 411 S.C. at 389, 769 S.E.2d at 5.

[24] Id. at 390, 769 S.E.2d at 5.

[25] Douglas v. Spartan Mills, Startex Div., 245 S.C. 265, 140 S.E.2d 173 (1965).

[26] Barnes, 411 S.C. at 399-400, 68 S.E. at 655 (Pleicones, J., dissenting); Nicholson, 411 S.C. at 390-91, 769 S.E.2d at 6 (Pleicones, J., concurring).

[27] Id.

[28] Nicholson, 411 S.C. at 391, 769 S.E.2d at 6.

[29] Barnes, 411 S.C. 400, 768 S.E. 2d at 655.

[30] 245 S.C. 265, 140 S.E.2d 173 (1965).

[31] Nicholson, 411 S.C. at 385, 769 S.E.2d at 3.

[32] Douglas, 245 S.C. at 269, 140 S.E.2d at 175.

[33] Nicholson, 411 S.C. at 386, 769 S.E.2d at 3.

[34] Barnes, 411 S.C. at 399, 768 S.E.2d at 655.

[35] See generally Douglas, 245 S.C. at 269, 140 S.E.2d at 175; Crosby, 330 S.C. at 492, 499 S.E.2d at 255; Ervin v. Richland Mem’l Hosp., 386 S.C. 245, 687 S.E.2d 337 (Ct. App. 2009).

[36] 330 S.C. 489, 499 S.E.2d 253 (1998).

[37] Id. at 330, 82 S.E.2d at 459.

[38] Id.

[39] Id.