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Aoe/Coe Evaluation Essay

The Appeals Board takes the position that an injury to an employee in the course of his or her employment, that is caused by a normal bodily movement, is not compensable.

In Luera v. W.C.A.B. (1994) 59 Cal.Comp.Cases 768, benefits were denied to an assistant store manager who experienced a "snap" in her right foot as she walked down a store aisle in a normal fashion. Apparently she suffers from a diabetic problem. A doctor supported her claim and found she had disability in the foot due to her industrial injury. The Board, in denying benefits, noted that spontaneous sprains or fractures in the course of normal bodily movements are not compensable, neither are disabilities due to inherent defects or congenital conditions rather than external causes. The Board cited in support of its opinion, Montgomery v. I.A.C. (1956) 21 Cal.Comp.Cases 8; Carr v. I.A.C. (1957) 22 Cal.Comp.Cases 2; Randazzo v. United States Products Company (1958) 23 Cal.Comp.Cases 227;and Bickley v. I.A.C. (1942) 7 Cal.Comp.Cases 92. See Pomona Valley Hospital Medical Center et al. v. W.C.A.B. (Flathers) (2000) 65 Cal.Comp.Cases 967 where industrial injury was found when the injury occurred when the applicant was sitting in a chair with her legs crossed and in reaching, bent at the waist and fractured her left femur. The Judge indicated in this case that the finding of injury AOE/COE was based primarily on Applicant's testimony and the report of Dr. David Wood. Dr. Wood examined the Applicant on 4/21/99 and issued a report dated 6/14/99 in which he concluded:

Certainly this injury is unusual as the femur is a very strong bone. Somehow when this patient crossed her legs she happened to apply enough torque to cause the fracture. This patient does have underlying osteopenia; however, in as far as there is no history of prior problems with the lower extremity, one could not attribute this to preexisting problems. It seems that what happened here is very similar to the final straw that broke the camel's back. The action of crossing her legs placed torque on the femur and resulted in the fracture.

 

The judge pointed out that Defendant urged reliance on the opinion of Dr. Chalian, who, in his report of 12/11/98, stated, in part:

It is my opinion that she did not suffer a work injury due to the fact that the femur is one of the strongest bones in the human body and requires a significant amount of force to create a fracture, unless due to an underlying process such as osteoporosis. It is my opinion based on her x-rays that her fracture was due to osteopenia. Please note her description of the mechanism is (sic) injury cannot explain a fracture of a normal femur bone. Her injury did occur at work, however I do not feel it is work related....

 

The Judge stated that it made no difference whether applicant's actions at the moment the injury occurred constituted normal bodily movement, as long as her activities at the time were incidental to and in furtherance of her work. The judge cited the case of Elliott v. I.A.C. (1942) 7 Cal.Comp.Cases 303; 21 Cal.2d 281; 131 P.2d 521, and noted that the Supreme Court in that case gave a long list of activities involving normal bodily movements which resulted in injuries that were held to be compensable because they were incidental to employment. These activities included smoking, going to obtain an overcoat, going to a hallway for fresh air, and going to obtain water.

The Judge distinguished Luera, supra, which Defendant cited for the proposition that a foot injury resulting from a normal bodily movement was not compensable because it was caused entirely by a preexisting nonindustrial diabetic condition. As the Judge explained:

In that case, the key work is "entirely" and it is distinguishable from this case because, in the present case, as Dr. Wood indicated, "the action of [applicant] crossing her legs placed torque on the femur and resulted in the fracture."

 

The Judge continued:

In addition, the fact that Applicant suffered from a preexisting condition which might have rendered the Applicant more susceptible to injury than a stronger individual does no make her injury not compensable. As stated in the Opinion on Decision issued in this case on February 25, 2000, there is a well established rule that an employer takes the employee as he finds him at the time of injury. In other words, "compensation is not to be denied merely because the workman's physical condition was such as to cause him to suffer a disability from an injury which ordinarily, given a stronger, healthier constitution would have caused little or no convenience." Tannenbaum v. I.A.C. (1935) 4 Cal.2d 615 [52 P.2d 215, 20 IAC 390].

 

The Judge further commented that he found the medical report of Dr. Wood more logical, well reasoned, and consistent with the facts established during the hearing. He concluded that substantial evidence supported his findings, and recommended that reconsideration be denied.

The Board panel adopted and incorporated the WCJ's report and recommendation, and denied reconsideration without further comment.

In finding the applicant, a maitre'd in a very large restaurant, had aggravated underlying non-industrial osteoarthritis of the left hip and right knee because his work required extensive standing, the Board in Fisherman's Grotti, et al. v. W.C.A.B. (Leinon) (2001) 66 Cal.Comp.Cases 1550 stated, in part:

I accept the opinion of Dr. Mandell that the work applicant performed aggravated his underlying non-industrial osteoarthritis of the spine, left hip; and right knee. I reject Dr. Renbaum's opinion, because his reports fail to address the key legal issue of whether applicant's work aggravated his non-industrial condition. Instead, he concludes that the work could not have caused applicant to develop degenerative arthritis, something neither applicant nor Dr. Mandell claims.

In order to rebut Dr. Mandell's opinion, Dr. Renbaum unconvincingly claims that if applicant's circumstances warrant a finding of industrial injury, then all employees with osteoarthritis can assert that their work injured them. To the contrary, explained Dr. Mandell in his November 10, 2000 report and in his deposition testimony.

Defendant's reference to the doctrine of non-compensable normal body movement is unpersuasive. Each step applicant took or each moment that he stood in a stationary position may indeed have constituted a normal body movement. The important distinction is that applicant performed those activities in the service of his employer and those movements were cumulatively injurious over time to someone like him with osteoarthritis. Defendant asserts that none of applicant's movements were injurious, but Dr. Mandell said otherwise, and I rely on his conclusion.

Contrary to the carrier's statements, applicant had little opportunity during the workday to sit down to rest. Defendant asserts that time to take the weight off one's feet is irrelevant to progression of arthritis, citing a general statement in a pamphlet from the Arthritis Foundation. However, Dr. Mandell clearly believes ability to rest when one feels symptoms is relevant to avoiding aggravation of one's arthritis condition. I prefer to rely on the persuasive opinion of an expert physician than some general comments in a consumer pamphlet.

Careful review of Dr. Renbaum's opinion demonstrates that de did not address the critical issue in this case, contrary to defendant's assertions. He was focusing on whether applicant's arthritis is of industrial origin, not whether applicant's work duties aggravated the clearly non-industrial condition.

Contrary to the carrier's arguments, awarding applicant benefits will not mean that every employee with arthritis will be able to claim his or her work caused it. Only those employees that a believable physician can say with reasonable medical probability had duties that made their condition worse to the point of disability can claim benefits under the Dr. Mandell's theory of the case.

Finally, employers certainly can guard against such injuries, contrary to defendant's fears. They need only proved reasonable rest breaks to allow an employee like applicant to take the weight off his knees, back, and hips. According to Dr. Mandell, the reason applicant's arthritis condition progressed so much was his inability to do that"

 

However, if an employee falls as a result of a pathological or idiopathic seizure (self-originated) and sustains injury as a result of the fall, the injury is considered to have arisen out of the employment and is compensable.

Commenting on this in Employers Mutual Liability Insurance Company of Wisconsin v. I.A.C. (Gideon) (1953) 18 Cal.Comp.Cases 286, the California State Supreme Court stated, in a case where an employee while walking down an aisle on his employer's premises, had an idiopathic seizure not connected with his employment, and fell to the concrete floor striking his head, the following:

It is settled in this state and elsewhere that an injury suffered from a fall on the employer's premises, in the course of employment, from a height or on or against some object, arises out of the employment and is compensable, even though the fall was caused by an idiopathic condition of the employee (National Auto etc. Ins. Co. v. Ind. Acc. Com., 75 Cal.App.2d 677 [171 P.2d 594, 11 Cal. Comp. Cases 206], where numerous authorities are cited), and it is pointed out that Brooker v. Industrial Acc. Com., 176 Cal. 275 [168 Pac. 126, 4 I.A.C. 311], to the contrary, is no longer the law since G. L. Eastman Co. v. Industrial Acc. Com., 186 Cal. 287 [200 Pac. 17, 8 I.S.C. 184] and California etc. Co. v. Indus. Acc. Com., 59 Cal.App. 225 [210 Pac. 524, 9 I.A.C. 196] (see cases collected in Horovitz on Workmen's Compensation, pp. 649 et seq.; Schneider's Workmen's Compensation (Text Perm. Ed.), Section 1376). The reasoning of those authorities is that the injury for which compensation is sought, was caused by the impact of the employee's body with an object or surface of the employer's premises, and hence arose out of the employment because such injury was an incident thereof, although the fall may also have been a causal factor which had no connection with the employment. The reasoning is equally applicable where the fall is merely to the floor or ground, in the course of the employment, and death or injury arises out of the employment, and is compensable, although the fall was caused by a disease of the employee, having no relation to the employment. (See Barlau v. Minneapolis-Moline Power Implement Co. (Minn.), 9 N.W.2d 6; President and Directors of Georgetown College v. Stone, 59 F.2d 875; Savage v. St. Aeden's Church (Conn.) 189 Atl. 599; Rockford Hotel Co. v. Industrial Commission (111.) 132 N.E. 759; General Ins. Corp. v. Wickersham (Tex.), 235 S.W.2d 215, writ of error refused, 149 Tex. 679; Tapp v. Tapp (Tenn.) 236 S.W.2d 977; Burroughs Adding Mach. Co. v. Dehn (Ind.) 39 N.E.2d 499, Burton-Shields Co. v. Steele (Ind.), 83 N.E.2d 623; Watson v. Grimm (Md.) 90 Atl.2d 180; New Amsterdam Casualty Co. v. Hoage, 62 F.2d 468; cert. denied, 288 U.S. 608, Protectu Awning Shutter Co. v. Cline (Fla.), 16 Co.2d 342; Horovitz, Stepping and Falling, 4 N.A.C.C.A. Law Journal 64; Schneider's Workmen's Compensation (Text-Perm. Ed.), Section 1376.) In General Ins. Corp. v. Wickersham, supra, the court said: "The conflicting views in the cases where the employee is injured by falling on the floor or ground, as distinguished from falling from ladders, or into holes, or against objects other than the floor or ground, are exemplified by the majority and dissenting opinions in Andrews v. L. & S. Amusement Corporation, 253 N.Y. 97, 170 N.E. 506, where compensation was denied, and in Savage v. St. Aeden's Church, 122 Conn. 343, 189 A. 599, where compensation was awarded."

The cases denying compensation do so on the theory that a floor presents no risk or hazard that is not encountered everywhere, and that such risks and perils as they do present are only those which confront all members of the public. The cases allowing compensation do so on the theory that the injury need not be the product of a peril or hazard which exposes the employee to extraordinary risk, in order to be compensable, and that the hazard presented by the floor renders the injury compensable, not because it should have been foreseen or expected, but because it is a hazard that is peculiar to the employment, and is one that is incidental to and grows out of the employment.

"It is our belief, and we so hold, that the attempted distinction between cases where the employee falls from a ladder, or into a hole, or against some object, and those where the employee falls to the ground or floor, is without a reasonable basis." There are cases to the contrary, but the modern trend is definitely in accordance with the view above expressed.

The contrary holdings in denying compensation overlook several important principles. Though an injury to be compensable must arise out of the employment, that is, occur by reason of a condition or incident of employment, the injury need not be of a kind anticipated by the employer nor peculiar to the employment in the sense that it would not have occurred elsewhere. (Pacific Emp. Ins. Co. v. Ind Acc. Com., 26 Cal.2d 286 [158 P.2d 9, 10 Cal. Comp. Cases 89]; Pac. Emp. Ins. Co. v. Ind Acc. Com., 19 Cal.2d 622 [122 P.2d 570, 7 Cal. Comp. Cases 71].) If we look for a causal connection, it is sufficient if it is a contributory cause. (Colonial Ins. Co. v. Industrial Acc. Com., 29 Cal.2d 79 [172 P.2d 884, 11 Cal. Comp. Cases 226 and 243].) Where a person is required to be on the streets in the course of his employment and falls to the street, the resulting injury arises out of the employment. (State Comp. Ins. Fund v. Indus. Acc. Com., 194 Cal. 28 [227 Pac. 168, 11 I.A.C. 241].) And finally "reasonable doubts as to whether an injury is compensable are to be resolved in favor of the employee." (Truck Ins. Exchange v. Ind. Acc. Com., 27 Cal.2d 492 [175 P.2d 823, 1 Cal. Comp. Cases 289]; Industrial Ind. Exch. v. Ind. Acc. Com., 26 Cal.2d 130 [156 P.2d 926, 10 Cal. Comp. Cases 59].)

Thus in the instant case it is not a ground for annulling the award of compensation that the employee might have had a fall (resulting in bodily injury) caused by an idiopathic condition but occurring at home, on the street or elsewhere when he was tending to his private affairs. The fact remains that he injured himself while at work on his employer's premises, the injury being the striking of his head against the floor, a condition incident to the employment. His condition may have been a contributory cause but it was not the sole cause of his injury. It would not be doubted that if an employee fell to the ground or floor in the course of his employments, and as a result was injured, the injury would be compensable whether the cause of the fall was a slippery or defective floor, or was due to nothing more than his innate awkwardness or even carelessness. Certainly, resolving all doubts in favor of the commission's finding that the injury arose out of the employment, compels an affirmance of the award.

 

In Allied Signal, Inc. et al. v. W.C.A.B.(Briggs) (2001) 66 Cal.Comp.Cases 1333 the applicant worked as a network controller. While at work on April 28, 1999 he went to the company bathroom, urinated, buttoned up, and turned towards the sink to wash his hands. As he turned away from the urinal, he felt a rushing sensation in his back. By the time he reached the sink he felt strong pain. He suffered a back injury and required medical treatment.

The trial judge found that although at the time he was in the course of his employment (COE) his injury did not arise out of his employment (AOE).

The applicant filed a Petition for Reconsideration. He contended that the causal connection is established when the injury occurs in the course of employment while the employee is performing normal bodily movements, unless there is a positive showing that the sole cause of the injury is an inherent defect of the employee.

The Judge recommended that the petition for reconsideration be denied. He stated that the mere fact that an employee becomes symptomatic at work while turning in a normal manner is insufficient to prove injury and that under the state of the evidentiary record Applicant did not provide sufficient proof, by a preponderance of the evidence, for a find of injury AOE.

The Board granted reconsideration and found that Applicant had sustained injury AOE/COE, stating in pertinent part:

If a disability is precipitated by a movement incidental to the employment, the injury is compensable even though the movement is normal. (Pomona Valle Hospital Medical Ctr. v.Workers' Comp. Appeals Bd. (Flathers) (2000) 65 Cal. Comp. Cases 967 (writ denied): Pacific Employers Ins. Co. v. I.A.C. (Levenstadt) (1948) 13 Cal. Comp. Cases 6 (writ denied).) If on the other hand, the injury is wholly spontaneous, it is not compensable just because it occurs on the job. (Reade v. State CompensationIns. Fund (1939) 4 Cal. Comp. Cases 162.) Thus, from an evidentiary standpoint the casual connection will be deemed established when the injury occurs in the course of employment while the employee is performing normal bodily movements, unless there is a positive showing that the sole cause of the injury is an inherent defect of the employee. (Smith v. Workmen's Comp. Appeals Bd. (1969) 71 Cal.2d 588, 592-593 [78 Cal. Rptr. 718, 455 P.2d 776, 34 Cal. Comp. Cases 424]; Liberty Mut. Ins. Co. v. I.A.C. (Calabresi) (1946) 73 Cal. App. 2d 555, 559 [166 P.2d 908, 11 Cal. Comp. Cases 66]' Lumbermen's Mut. Cas. Co. v.I.A.C. (Cacozza) (1946) 73 Cal. 2d 492, 496-97 [75 P. 2d 823, 11 Cal. Comp. Cases 289]; Luera v. Workers' Comp. Appeals Bd. (1994) 59 Cal. Comp. Cases. 786 (writ denied).)

After reviewing the record, the Board finds that applicant has met his burden of proving injury arising out of and in the course of his employment. (Lab. Code. §3202.5) The record reflects that applicant was performing his job when he needed to use the restroom. Under the "personal comfort" or "personal convenience" doctrine, the course of employment was not broke when he used the restroom. The WCJ determined that the injury resulted from a "normal body movement," and such it was a non-compensable. But defendant has failed to prove that the injury to applicant's back was wholly spontaneous resulting from an inherent defect of the applicant. Here, the disability was precipitated by a movement incidental to the employment (i.e., use of the restroom while at work and turning to walk away to return to the job), and there is no evidence that the injury was solely spontaneous resulting from an inherent defect in the applicant. Under these circumstances, any reasonable doubt as to the mechanics of the injury will be resolved in favor of the injured worker. (Lab. Code, §3202.)

 

Sneezing at work which results in a back injury was deemed a compensable claim in County of Contra Costa, et al. v. W.C.A.B. (Ramirez)(2004) 69 Cal.Comp.Cases 257, where the judge found the applicant's testimony credible that his back injury occurred when he twisted his body quickly to avoid sneezing onto the phone he was working on.

The judge, in a decision upheld by the Board, stated, in part:

I am persuaded by the applicant's credible testimony, the 8/24/01 Doctor's First Report and the Outpatient Notes of Brentwood Health Center dated 8/23/01, which medical reports/records are closest in time to the actual event and are given great weight as to their history of the mechanism of injury. I find that applicant's injury was precipitated by a movement incidental to the employment, and thus I find it arising out of employment and compensable pursuant to [Pacific Employers Ins. Co. v. I.A.C. (Levenstadt) (1948) 13 Cal. Comp. Cases 6 (writ denied)] and [Associated Indem. Corp. v. I.A.C. (Zimmerman) (1947) 12 Cal. Comp. Cases 68 (writ denied)]. Applicant was twisting while programming phones and placing key strips onto the phones at the time of the sneeze, which under ordinary circumstances would be a normal bodily function, but due to the work applicant was doing, in a split second applicant twisted to avoid sneezing onto the phone and key strips, and felt immediate pain in his back and shooting pain into the right leg. I am persuaded that a combination of the sneezing and twisting, as documented by the first physician evaluating the applicant within days of the incident, are sufficient to take away the "spontaneous" aspect required for non-compensability by [Reade v. State Comp. Ins. Fund (1939) 4 Cal. Comp. Cases 227 (Appeals Board en banc decision)]. [WCJ's citation to record omitted]

 

In National Automobile and Casualty Insurance Co. v. I.A.C. (1946) 75 Cal.App.2d 677; 171 P.2d 594, the Court of Appeal, First District, stated:

We do not find it necessary to make a choice between these conflicting cases because the authorities are overwhelming that where the injury is contributed to by some factor peculiar to the employment it arises out of the employment even though the fall has its origin solely in some idiopathy of the employee. (Citations.)

In Varao's Case, supra, the employee was seized with dizziness caused by a hypertensive heart. He fell against an iron motor box and fractured his skull. In affirming an award for his consequent death the Supreme Judicial Court of Massachusetts said (55 N. E. 2d at p. 452):

"The motor box was attached to a machine which was located by the side of a passageway along which one performing the duties of a foreman would travel, and the location of the motor box could be found to be a special danger to one seized with a heart attack while passing along the passageway."

 

In Gamble v. W.C.A.B. (1995) 60 Cal.Comp.Cases 160, the Court of Appeal, Third District, reversed a Board's decision where the Board denied compensability of a medical condition called "pituitary apoplexy" which the applicant experienced after falling two stories. The Board denied liability for the condition based upon a physician's conclusion that the condition (unknown to the applicant at the time he fell) caused him to fall. The Court, in reversing the Board, stated:

The first of the Board's stated reasons for denying the petition for reconsideration is based on a misapprehension of legal principles. The Board adopted the WCJ's adoption of Dr. Keenan's opinion that the pituitary apoplexy did not arise out of and during the course of employment because the pituitary adenoma caused Gamble to fall from the building. This analysis merely begs the question. The question is not whether a preexisting condition caused the industrial accident, but whether the industrial accident aggravated the preexisting conditions, i.e., whether the fall from the building caused the adenoma to hemorrhage, necessitating brain surgery. (Footnote.)

"It is settled in this state and elsewhere that an injury suffered from a fall on the employer's premises, in the course of employment, from a height or on or against some object, arises out of the employment and is compensable, even though the fall was caused by an idiopathic condition of the employee [citations]" (Employers etc. Ins. Co. v. Ind. Acc. Com. (1953) 41 Cal.2d 676, 678 [263 P.2d 4, 18 Cal. Comp. Cases 286].)

The employer takes the employee as he finds him at the time of employment. When subsequent injury lights up or aggravates a previously existing condition rendering it disabling, liability is imposed upon the employer. (§4663; Zemke v. Workmen's Comp. App. Bd. (1968) 68 Cal.2d 794 796 [69 Cal.Rptr. 88, 441 P.2d 928, 33 Cal. Comp. Cases 358]; Colonial Ins. Co. v. Industrial Acc. Com. (1946) 29 Cal.2d 79, 83-84 [172 P.2d 884, 11 Cal. Comp. Cases 226].)

For example, in Winthrop v. Industrial Acc. Com. (1931) 213 Cal. 351, the Supreme Court held an employee was entitled to workers' compensation benefits where the evidence showed a workplace fall from a stool caused the stem by which an ovarian tumor was connected to body tissues to become twisted, resulting in life-threatening toxicity which required emergency surgery. (Footnote.) We note also that Dr. Keenan conceded that his opinion, that Gamble fell from the building because the adenoma put pressure on the optic nerve, is conjecture given that Keenan could not test the extent of Gamble's visual field defect caused by the enlarged tumor because surgery removed most of the tumor.

Even if we assume Gamble fell because the preexisting pituitary adenoma, enlarged by prior hemorrhage, affected his vision, nevertheless the employer is liable in workers' compensation for all injuries sustained by Gamble from the fall, including any aggravation or lighting up of the preexisting adenoma.

The other stated reason for the Board's decision is that the fall did not cause the pituitary apoplexy because the evidence shows Gamble did not suffer a head injury. This analysis is based on Dr. Keenan's opinion that pituitary apoplexy cannot occur from generalized body trauma but rather only from direct head trauma such as a fractured skull. However, Keenan's opinion is based on surmise, speculation or conjecture, given that the record reveals no basis for the opinion, and the opinion is rebutted by substantial, credible medical evidence.

Dr. Keenan does not explain the basis for his opinion regarding causation of pituitary apoplexy. But one of the employer's other experts, Dr. Ansel, indicates his opinion that "things such as excessive coughing" can cause pituitary apoplexy is based on his review of a treatise on clinical neurology. It is undisputed that Gamble fell two stories, landing on his feet. It is further undisputed, as explained by Dr. Keefauver, that such a fall would necessarily result in considerable shaking of the brain and particularly the area of the pituitary gland. It hardly seems necessary to point out that if excessive coughing can cause a pituitary adenoma to hemorrhage, then so too could a fall from a two-story building

 

See also Turlock School District, et al. v. W.C.A.B. (Lamb) (1999) 64 Cal.Comp.Cases 604, where, in awarding benefits to a school bus driver who collapsed as she exited a school building to walk to her bus, hitting the ground and injuring her head and back, the Court stated, in part:

Various contentions have been raised about the genesis of applicant's collapse. In short, the cause of the syncope is not clearly apparent to the trial judge.

It is not, however, the cause of the collapse that is the crux of the matter herein, but the trauma that occurred when applicant his the ground. According to Dr. Geiger, her injuries were caused by the head trauma. The controlling doctrine is that of the "idiopathic seizure" cases, in which, despite a nonindustrial cause of the collapse, the episode is nevertheless held compensable because the employee's body struck the workplace, in this case the employer's premises. (See Employers etc. Ins. Co. v. Ind. Acc. Com. (Gideon) (1953) 41 Cal.2d 676, 263 P.2d 4, 18 Cal. Comp. Cases 286.) When applicant fell to the sidewalk outside the bus shop she sustained direct trauma to the back of her head, sufficient to render her unconscious for 30 minutes and cause a large laceration with bleeding that required stitches. The sequelae thereto appear to stem from that trauma. Although, as in Gideon, there may be more than one cause of applicant's ongoing symptoms, the fall at least contributed materially and apportionment is not at issue at this juncture.

For the reasons stated above and in reliance on Dr. Geiger's opinion, deemed most persuasive, it is found that applicant sustained injury to her head on March 29, 1996.

 

The Board denied reconsideration and adopted and incorporated the judge's reconsideration report.

However, the Board panel also made an additional comment about Employers etc. Ins. Co. v. Ind. Acc. Com. (Gideon) (1953) 418 Cal. Comp. Cases 286; 41 Cal.2d 676; 263 P.2d , by stating:

We are upholding the decision only because we are constrained to do so by the holding in Employers Mutual Liberty Insurance Company of Wisconsin v. Workers' Compensation Appeals Bd. (Gideon) (1953) 41 Cal.2d 676 [263 P.2d 4, 18 Cal. Comp. Cases 286]. We invite appellate review of the holding in Gideon, supra, 18 Cal. Comp. Cases 286.

 

In General Electric Company et al. v. W.C.A.B. (Jacobs) (1986) 51 Cal.Comp.Cases 84, the applicant fell at work and twisted his right leg when his right leg buckled. Prior to the fall, he had a history of his right leg buckling, once a year, because of a significant pre-existing poliomyelitis residuals in both lower extremities.

The Board, relying on Gideon, supra, upheld a judge's findings that the injuries sustained in the fall were industrially caused because it believed the applicant's testimony that when his leg buckled objects were in his way that caused him to fall down straight forward rather than to the side. He had testified that falling in that manner placed him in an awkward position and caused severe twisting of his right leg.

Casting some doubt on the Board's long held position that normal bodily movement injuries are not work related is the following case of the police officer who sustained an injury from blowing his nose. In Freil v. W.C.A.B. (1991) 56 Cal.Comp.Cases 55, Police Officer Michael Freil, reported to work suffering with a head cold. He blew his nose in the restroom to ease congestion. He then became dizzy and nauseated. His supervisor took him to a hospital where he was given an antinausea medication. An agreed medical examiner determined the medication had caused Officer Freil to suffer a stroke which permanently disabled him.

The Workers' Compensation Appeals Board found that the stroke did not arise out of and in the course of the officer's employment and ruled he was not entitled to a service-connected disability.

In reversing the Board and finding that the stroke arose out of and in the course of the officer's employment the Court of Appeal, Fourth District, stated:

The city concedes that if the vertigo and nausea had caused Freil to fall while on duty and sustain an injury requiring treatment, the impairment from the fall (see Employers Etc. Ins. Co. v. Ind. Acc. Com. (1953) 41 Cal.2d 676, 678 [18 Cal. Comp. Cases 286, 263 P.2d 4]) and any additional malady suffered as a result of the medical treatment would have been compensable (see Ballard v. Workmen's Comp. App. Bd. (1971) 3 Cal.3d 832, 839 [36 Cal. Comp. Cases 34, 92 Cal.Rptr. 1, 478 P.2d 937] [employee's addiction to drugs prescribed to alleviate pain from industrial back injury was a compensable injury even though "her personality problems also were contributing factors"]). If the resulting injury had also caused disability, the city admits the officer would have been entitled to a service-connected disability retirement.

But the city maintains the vertigo and nausea were simply natural symptoms of Freil's cold and in no way related to his employment. Had Freil developed those symptoms after blowing his nose at home or while off duty, there is no question the resulting stroke would not be compensable. Thus, argues the city, the vertigo and any injury resulting from treatment (as opposed to treatment for a discrete injury precipitated by the vertigo) do not become compensable simply because Freil happened to blow his nose at work.

But the law on the point is to the contrary: "Where an employee is injured in the course of employment, it is irrelevant to the application of the conditions of compensation that the same injury might have occurred outside the course of that employment." (Bell v. Macy's California (1989) 212 Cal.App.3d 1442, 1451 [54 Cal. Comp. Cases 308, 261 Cal.Rptr. 447].) In Bell, a pregnant department store clerk developed severe pains while at work and went to the store's dispensary, which was open to both employees and the public. The dispensary nurse dismissed as unnecessary the employee's request that a physician be called; her diagnosis was gas pain. An ambulance was not summoned for almost an hour. By that time, the damage suffered as a result of the employee's ruptured uterus was irreversible; and her baby was brain-damaged.

The Court of Appeal determined the injuries to the employee, her husband, and unborn child were all covered by the elusive provisions of the workers' compensation statutes. The court first noted, "[t]he parties assume that Bell's ruptured uterus was unrelated to her employment save only that it occurred during working hours and on Macy's premises." (Id. at p. 1447.) The court then observed, "Once it is established that an injury arose out of and in the course of employment, '[a]ll that is required is that the employment be one of the contributing causes without which the injury would not have occurred.'[¦]Though the determination that a particular activity is sufficiently work-related to satisfy the conditions of coverage is a factual inquiry, 'when the facts are undisputed and all point in the same direction, resolution of the question becomes a matter of law.' [Citation.] Based on the undisputed facts, we find that the trial court's implicit determination that Bell's visit to the company clinic arose out of and in the course of her employment was correct." (Id., at pp. 1448-1449.) Applying the rationale of Bell, we find the express finding of the Workers' Compensation Appeals Board that Freil's injury did not arise out of and in the course of his employment to be incorrect as a matter of law.

We begin by reciting the basis tenet that "[t]his two-pronged requirement is the cornerstone of the workers' compensation system. [Citation.] In applying it, this court must be guided by the equally fundamental principle that the requirement is to be liberally construed in favor of awarding benefits." (Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 729, 732-733 [48 Cal. Comp. Cases 326, 190 Cal.Rptr. 904, 661 P.2d 1058], emphasis in original.) An injury precipitated by an employee's "normal bodily movements[is deemed to arise out of and in the course of employment] unless there is a positive showing that the cause of disability is an inherent defect of the employee." (2 Hanna, CALIFORNIA LAW OF EMPLOYEE INJURIES AND WORKMEN'S COMPENSATION (2d ed. 1990, rel. 17-5/83) §10.0814].) For example, employees with congenital back problems who injure their backs while using the restroom at work have not been entitled to compensation. (Southern Bell Tel. and Tel. Co. v. McCook (Fla. 1977) 355 So.2d 1166; Sacks v. Industrial Comm'n. (1970) 13 Ariz.App. 83 1474 P.2d 422].) But employees whose knees appeared to spontaneously give way or whose backs "snapped" upon rising from a stooped position were awarded compensation benefits on the theory the injuries arose out of and during the course of their work. (See, e.g., Bethlehem Steel Co. v. Industrial Acc. Com. (1944) 9 Cal. Comp. Cases 41, Maryland Casualty Co. v. Industrial Acc. Com. (1940) 5 Cal. Comp. Cases 108.)

There was no evidence that Freil had ever previously suffered debilitating side effects from blowing his nose. On the date of his injury he was on duty and expected to carry out the full responsibilities of a patrol officer. Although he had a cold, the symptoms apparently did not prevent him from working. The symptoms did require him to blow his nose, however, in order to ease congestion. This was of benefit to the employer because Freil had to be able to contact the public and communicate via the radio. So long as the vigorous nose-blowing bore a relationship to his ability to carry out his duties, the chain of events that led to his stroke and disability must be viewed as arising within the penumbra of legitimate activity in the workplace.

The employer's decision to seek medical treatment provides an independent connection to Freil's employment. After the onset of his vertigo, no one appeared to take the time to determine whether the medical problem was work-related: Freil's supervisor simply took charge and transported him to the hospital where the debilitating injection was administered. The Supreme Court has recognized "that injury from medical treatment is compensable where the treatment is required at least partially for the employer's benefit or where it is required as a condition of employment. This is true whether the medical treatment aggravates a preexisting industrial injury or a preexisting nonindustrial condition [citation], or whether the treatment is 'furnished by the employer, his insurance carrier, or was selected by the employee.' [Citation.]" (Maher v. Workers' Comp. Appeals Bd., supra, 33 Cal.3d at pp. 737-738.) In this case the treatment may not have been required, but it was provided. That is enough. (See also Bell v. Macy's California, supra, 212 Cal.App.3d at p. 1451.)

As already noted, where the facts are not in dispute, the question of an employee's entitlement to benefits becomes one of law. (Eckis v. Sea World Corp. (1976) 64 Cal.App.3d 1, 7 [134 Cal.Rptr. 183]; see also Laeng v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 771, 774 [37 Cal. Comp. Cases 185, 100 Cal.Rptr. 377, 494 P.2d 1].) Here the only evidence before the workers' compensation judge and the Workers' Compensation Appeals Board was that Freil blew his nose so vigorously while at work that another medical condition requiring treatment ensued. He became disoriented and nauseated and was taken to the hospital by his employer. The chain of causation is clear and undisputed. Freil's reaction to the drug was extreme and, perhaps, rare; but it occurred. He is entitled to a service-connected disability retirement.

If you are injured at work, or suspect that your work activities are causing injury, you should report your injury to your supervisor as soon as you can, and ask to be seen by a doctor. Your employer is required to provide you with a DWC1 claim form within 24 hours of requesting it. The top half is completed by the employee and the bottom half completed by the employer. If your employer does not provide you with a claim form, you may down load it from this web- site, by clicking here DWC-Form 1. You can also obtain the form, and instructions on how to complete it, from your local Workers Compensation Appeals Board (WCAB). Complete the claim form and give it to your supervisor, or human resource director. Within a few days, you should be contacted by the employer’s insurance carrier. They will notify you in writing with respect to your claim. If your employer refuses to provide you with their insurance information, you should contact an attorney immediately. Important tip: Be sure to list all the body parts injured on the DWC Form-1 affected by the injury. If you forget to list a body part, the carrier will deny it later if when you ask for treatment.