• Not Every Slip and fall in Delaware Leads down the Slippery Slope of Entitlement to Workers' Compensation
  • December 22, 2009 | Author: Paul V. Tatlow
  • Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - Wilmington Office
  • In Delaware, as in most jurisdictions, the Workers' Compensation Act is the exclusive remedy between employers and employees for workplace injuries. In return for the employee being entitled to compensation, including wage loss and medicals, in what is essentially a no-fault system, the employer is not faced with the exposure of a tort suit which would involve additional damages, such as pain and suffering. The exclusive remedy provision in Delaware provides that an employer and employee shall be bound to pay and to accept compensation for personal injury or death by accident arising out of and in the course of employment regardless of the question of negligence and to the exclusion of all other rights and remedies. Del. Code Ann. 19 ยง2304.

    The term "in the course of employment" refers to the time, place, and circumstances of the injury. In other words, it requires that the injury must have been caused in a time and place where it would be reasonable for the employee to be under the circumstances. On the other hand, the term "arising out of employment" relates to the origin of the accident and its cause. This concept requires that there be a reasonable causal connection between the injury and the employment. Rose v. Cadillac Fairview Shopping Center Properties, Inc., 668 A.2d 782 (Del. Super. 1995), aff'd sub nom. Rose v. Sears Roebuck & Co., 676 A.2d 906 (Del. 1996).

    This article will discuss the idiopathic fall doctrine which is followed in Delaware and which constitutes a legal basis for establishing that a slip and fall on the job did not arise out of the employment. This doctrine provides that an injury sustained in a fall caused by a condition personal to the claimant does not arise out of the employment unless the employment contributes to the risk or aggravated the injury. The idiopathic fall doctrine must be distinguished from the unexplained fall doctrine. Under the latter term, the origin of the fall is neutral or unexplained, and the claimant can recover merely by showing a positional risk theory, meaning that the employment brought the employee to the place at the time of injury. An example of the unexplained fall doctrine would be where a claimant trips on a step at the workplace and sustains an injury; since the employment placed the claimant at the place and time of the injury, such a fall would be compensable.

    The case of Lecates v. Harrison House of Delmar, (Del. Super. 1999), illustrates the idiopathic fall doctrine. In that case, the claimant fainted at work while unloading a dishwasher. The claimant had a past medical history of two near-fainting spells in the weeks prior to the accident. The medical expert for the employer testified that the fainting was due to a medical condition of the claimant that was unrelated to work. The court held that the fall was not compensable under the idiopathic fall doctrine since it was undisputed that the cause of the fall was the faint and it was also not disputed that the faint had been caused by a medical condition unrelated to the employment. The only manner in which a claimant can establish that an idiopathic fall is compensable is to show that the idiopathic or personal condition of the claimant was triggered or aggravated by the employment in some manner. Reese v. Home Budget Center, 619 A.2d 907 (Del. 1992).

    A recent Board decision illustrates that defending a case based on the idiopathic fall doctrine requires the employer to present a solid medical defense. In Ayala v. Latin America Community Center, (IAB No. 1301615-decided 7/17/08), the claimant was a 62-year-old woman who worked in the employer's daycare program looking after young children. On April 2, 2007, near the end of her workday, the claimant was picking up toys with the children when she tripped and hit her knee on the ground. The evidence indicated that the claimant did not recall being unconscious, but she does remember being unresponsive when her co-workers initially gathered around her. The employer argued that the injury did not arise out of the employment by attempting to show that this case fell within the idiopathic fall doctrine. The medical expert for the employer testified that he did not know what caused the claimant to fall at work but that she did have a past medical history of dizziness and vertigo which were not work related. The medical expert for the claimant testified as to his treatment of the knee condition, including an arthroscopic procedure. On the causation issue, the claimant's medical expert testified that while the medical records did show that the claimant had had a prior syncopal, or passing out, episode five to ten years previously, exertion at work can also cause dizziness. The claimant's expert stated that, in his opinion, the claimant was at work doing her work activities when she had a syncopal episode causing her to fall and injure the knee. The Board found that the evidence did not show that the claimant had a history of persistent syncope or even a regular non-specific dizziness such as would qualify as a pre-existing condition. Accordingly, the Board found that this case fell under the unexplained fall doctrine and that the claimant had, therefore, met her burden of proving compensability. The Board commented that the evidence was insufficient to attribute the fall to any condition personal to the claimant, which is required under the idiopathic fall doctrine.

    Employers in Delaware should be alert to the possibility of defending any slip and fall type work injuries under the idiopathic fall doctrine by showing that the slip and fall was due to a condition personal to the claimant and, therefore, not compensable. In order to do so, as shown by the foregoing review of the case law, the employer needs to properly prepare its defense. This requires doing a full investigation of the claim, including taking statements from the claimant as well as any witnesses, including co-workers. In addition, since idiopathic falls are caused by conditions personal to the claimant, it is imperative to obtain all relevant medical records, especially past medical records that show any history of dizziness, vertigo, or fainting spells. It is recommended that as part of the defense the employer retain a defense medical expert to perform an evaluation of the claimant and review all records in order to express an opinion on the causation issue. Even in the no-fault system of workers' compensation, the idiopathic fall doctrine provides one avenue where employers can limit their exposure on slip and fall type work injuries.