Reynolds Consumer Products v. William Bell, III

RENDERED: OCTOBER 23, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0855-WC
REYNOLDS CONSUMER PRODUCTS APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-19-80527
WILLIAM BELL III; HONORABLE JOHN
MCCRACKEN, ADMINISTRATIVE LAW JUDGE;
and WORKERS’ COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; KRAMER AND MCNEILL, JUDGES.
KRAMER, JUDGE: William Bell III sought workers’ compensation benefits from
his employer, Reynolds Consumer Products, claiming he had sustained a
compensable injury to his right eye after suffering a fall on his employer’s
premises on April 6, 2019. The Administrative Law Judge (ALJ) dismissed Bell’s
claim after determining Bell had failed to prove his fall qualified as a work-related
injurious event under Kentucky workers’ compensation law or that his fall had
been the proximate cause of his eye injury. Bell then appealed to the Workers’
Compensation Board (Board). Upon review, the Board reversed and remanded,
explaining Bell’s eye injury was indeed work-related because Bell’s fall was
“unexplained” and because the evidence overwhelmingly demonstrated Bell’s fall
had caused his injury. Reynolds now appeals. We affirm.
The evidence adduced in this case is as follows. Bell testified that he
passed out while at work for Reynolds on April 6, 2019. He had never passed out
before and had felt “normal” when he arrived at work that day. At the time of his
fall, he was standing near a transfer cart. Bell testified he has no idea what he hit
when he fell. He blacked out and the next thing he remembers is Jermaine
Campbell standing over him. Bell stated he did not have loss of vision in his right
eye until after the fall. When he awoke, he did not initially realize he could not see
out of his right eye. Just prior to passing out, he did not feel well and was
sweating. He suddenly became disoriented and fell. At the time of his fall, the
transfer cart was near him and he held a wireless crane remote in his hand. The
crane remote was approximately ten to eleven inches long and five inches wide and
was beside him when he awoke.
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Jermaine Campbell testified by deposition on November 19, 2019. He
was working approximately twenty to twenty-five feet away from Bell
immediately prior to the fall. Campbell testified he had spoken with Bell earlier in
the shift; they had been “talking on and off” during their shift and Bell seemed
“okay.” About two hours into their shift, though, Campbell glanced in Bell’s
direction and noticed he was standing and “just staring.” Campbell yelled to Bell,
who did not respond. Campbell walked toward Bell, who started walking toward
him. Bell was wearing a hard hat, safety shield, and safety glasses. He was also
carrying a remote control for a crane. Campbell saw Bell fall and stated Bell’s
body rolled while he was falling. Campbell was not sure if Bell struck anything as
he fell. Bell’s hardhat, face shield, and safety glasses came off when he hit the
floor. When Campbell reached Bell, Bell was approximately twelve inches from
the transfer cart, a permanent immovable structure. Bell was face down with his
hardhat and safety glasses a few feet away. The face shield was still attached to
the hardhat, but it was bent. Campbell helped Bell to a seated position and
observed blood coming out of his right eye.
Campbell, with the assistance of another Reynolds employee (William
Cole Duley), escorted Bell to the supervisor’s office. Regarding that time frame,
Campbell further testified:
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Q: As he walked to the office, did [Bell] complain of any
particular complaints, particularly with regard to his right
eye?
CAMPBELL: No.
Q: Did he tell you whether or not he could or could not
see out of the right eye?
CAMPBELL: Well, he didn’t – at the time he didn’t. I
noticed it, but he didn’t tell me that he couldn’t see until I
guess he came to the guard office and they checked him
out and he came back to get his stuff because he was
going home. At that time I noticed that his eye was
swollen shut. I asked him about his eye and he told me
he could not see out of his eye.
Q: Do you remember what the timeframe was between
the point that he was at the guard shack waiting to be
picked up, I believe, by his girlfriend? Do you know
what time that would have been?
CAMPBELL: I’d say somewhere between forty-five
minutes and maybe an hour.
William Cole Duley testified at the hearing. Duley works in security
and loss prevention. He did not witness the accident but provided first aid
afterward. When Duley first saw Bell, he was in a seated position with a paper
towel over his right eye. Duley observed redness in the white part of the eye but
stated nothing was coming out of the eye. He gave Bell some wet rags “because it
was hot back there” but provided no other care. He noted Bell was taken from the
premises by his fiancée.
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Bell’s fiancée, Kristin Lucas, testified at the hearing. She took Bell
directly to the Baptist East emergency room. Lucas testified as follows concerning
Bell’s condition when she arrived at Reynolds:
Q: And when you picked up Mr. Bell can you tell us
what you saw as in relation to his eye?
A: Well, when he came out he had like a wet paper
towel on his eye and it was like a rust color I’m assuming
from where he was wiping or oozing something that was
coming out of his eye. And I asked him to open up his
eye because it was like closed, like stuck closed, and he
kind of pulled it open and it was just like – it was very
gruesome. It was almost like smooshed.
Q: What was smooshed, the white part?
A: His eye – his entire eyeball, like the whole thing.
Q: So was it one side smooshed more than the other side
or just –
A: It looked – honestly, just the whole thing was just like
a big glob.
Q: Did it look bloody as well?
A: Yes. It was very red and had oozing stuff coming out
of it.
Records from Baptist Health Louisville on April 6, 2019, the day of
the accident, reflect Bell sustained a ruptured globe of the right eye. Bell had a
dilated, non-reactive right pupil with blood in the anterior chamber, and “[l]arge
amounts of tearing and drainage” were observed. A CT of the head was read as
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showing an abnormal appearance of the right globe, likely related to a prior corneal
transplant. Bell was transferred to the University of Louisville for surgery.
Bell filed the October 18, 2019 report of Dr. Richard A. Eiferman. He
opined as follows:
In my opinion, Mr. Bell’s eye injury was a result of direct
trauma to the right eye. Given the severity of his injury
(traumatic wound dehiscence with a prolapse of the
intraocular contents and ultimate loss of vision) and the
unaffected left eye (which also had a pre-existing corneal
transplant) it is highly unlikely that it was caused by a
blunt force trauma to the skull. In addition, Mr. Bell’s
injury could not have been caused by any other non-
traumatic event such as hypertension.
The opinions above are based on over 40 years of clinical
experience and are expressed within a reasonable degree
of medical probability.
Bell’s claim was bifurcated on the issue of work-relatedness of the
eye injury. The ALJ’s findings relevant to this appeal were as follows:
An employee has the burden of proof and the risk of non-
persuasion to convince the trier of fact of every element
of his workers’ compensation claim. Snawder v. Stice,
576 S.W.2d 276 (Ky. App. 1979). Injury is statutorily
defined in KRS 342.0011(1) as a work-related traumatic
event or series of traumatic events, including cumulative
trauma, arising out of and in the course of employment,
which proximately causes a harmful change in the human
organism evidenced by objective medical findings.
When the causal relationship between an injury and a
medical condition is not apparent to a lay person, the
issue of causation is solely within the province of a
medical expert. Elizabethtown Sportswear v. Stice, 720
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S.W.2d 732, 733 (Ky. App. 1986); Mengel v. Hawaiian-
Tropic Northwest and Central Distributors, Inc., 618
S.W.2d 184 (Ky. [App.] 1981).
Whether a workplace injury arises out of employment
requires considering three risk categories: 1) risks
distinctly associated with employment; 2) risks that are
idiopathic or personal to the worker; and 3) risks that are
neutral. Vacuum Depositing, Inc. v. Dever, 285 S.W.3d
730, 733 (Ky. 2009). Bell’s fall does not fit into category
one. “Unexplained falls begin with a completely neutral
origin of the mishap, while idiopathic falls begin with an
origin which is admittedly personal.” Id.
Kentucky has adopted a presumption that unexplained
workplace falls arise out of the employment unless the
employer presents substantial evidence to show
otherwise. Id. “The employer cannot prevail in such a
case unless it shows affirmatively that the fall was not
work-related.” Id.
Idiopathic falls may be compensable if work places the
injured worker in a position that increases its dangerous
effects. Id.; see also Indian Leasing Company v.
Turbyfill, 577 S.W.2d 24 (Ky. App. 1979). This
increased dangerous effect may be a fall from a height,
near machinery or sharp corners, or in a moving vehicle.
Turbyfill at 24. The Court in Turbyfill stated the issue in
idiopathic falls must be carefully distinguished from the
medical question whether the final injury was in fact the
result of the fall itself, rather than the idiopathic
condition. Id.
In the present case, Bell stated that he passed out. He
does not know what happened from the time he passed
out until he came to with Campbell standing over him.
Bell stated that just prior to the fall he felt ill and sweaty.
There is no proof in the record to indicate that his work
caused his feeling ill and sweaty just prior to his fall,
differentiating him from a person whose work-related
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physical exertion may cause a heart attack who falls to
the ground. While it may appear as though Bell’s fall is
unexplained, the evidence points to the fact that he
fainted. He admitted that he passed out. Campbell saw
him pass out and fall. The ALJ understands an
“unexplained” fall to be one that has no explanation.
Bell has an explanation for his fall in that he passed out.
The ALJ relies on Bell and Baptist Hospital East records
to find that he suffered a syncope episode and collapsed.
Therefore, the fall is explained. The only remaining
question is whether the syncope was caused by some
condition of his work. There is no proof that his work
caused the syncope episode. The ALJ relies on Bell and
the medical records to find that Bell’s fall fits the
category of falls related to idiopathic and not
“unexplained.”
The second step in determining whether an idiopathic fall
is compensable is to determine whether Bell’s work
placed him in a position of increasing the dangerous
effects of such a fall, such as on a height, near machinery
or sharp corners, or in a moving vehicle. Bell asserts that
wearing his safety glasses and hardhat with face shield
placed him at a greater risk of injury. He also asserts that
his proximity to the platform and the handheld remote
increased his risk in a fall.
Bell testified that he does not know if he fell on anything.
The only eyewitness, Campbell, testified that he does not
know if Bell fell onto anything as he fell. Campbell
found him face down on the ground. Campbell
remembers seeing Bell’s hardhat, shield and safety
glasses coming off Bell when he struck the floor. He
described the plastic shield as being a little “cockeyed.”
No one knows if Bell’s hearing protection came off his
head. Additionally, there is no proof that Bell struck the
platform with his body when he fell, or that the handheld
wireless remote device he held struck his eye. There is
simply no proof that his safety gear, or anything near
him, increased his risk of this injury. No one testified
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that his safety glasses were broken or had blood on them.
It is the same for the other gear Bell was using at the time
of his fall.
Dr. Eiferman, Bell’s eye doctor, stated that Bell’s eye
injury was the result of direct trauma to the right eye, not
blunt force trauma to the skull from the fall. There is no
proof that Bell sustained direct trauma to the right eye
when he fell. There is speculation as to what may have
happened, but no proof. The Baptist Health Louisville
records do not help on the issue of causation. The CT of
the head was interpreted to show the right eye had an
abnormal appearance of the right globe, likely related to
the prior corneal transplant. There is no other
explanation as to how this interpretation relates to the
cause of Bell’s eye condition.
The ALJ relies on Bell, Campbell, Dr. Eiferman and the
Baptist Health Louisville records to find that Bell’s job
did not place him at a greater risk of injury. There is
simply no proof that Bell struck, or was poked by,
anything causing direct trauma to his right eye.
The ALJ finds that Bell has not met his burden of proof
that his April 6, 2019 fall produced an injury in the
course and scope of his work.
In sum, the ALJ found Bell had failed to prove it was more likely that
not that his fall had caused the trauma to his right eye. Moreover, the ALJ held,
even if the fall had proximately caused Bell’s injury, it was still non-compensable
because the fall was “idiopathic”; in other words, Reynolds was not responsible
because Bell had admitted he had “passed out” after feeling ill and weak; and
because Bell had failed to prove – as is necessary regarding idiopathic falls – that
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his “work placed him in a position of increasing the dangerous effects of such a
fall[.]”
In a petition for reconsideration before the ALJ, and in his subsequent
appeal before the Board, Bell contested these findings. As to causation – which we
will address in this appeal first – Bell asserted that the evidence overwhelmingly
demonstrated his fall had caused the direct trauma that had undisputedly caused his
right eye injury. The ALJ denied Bell’s petition for reconsideration regarding
causation. However, the Board reversed on this point, explaining “there is no
question that the eye injury occurred while Bell was at work at Reynolds,” and that
“before Bell fell on April 6, 2019, his eyes were functioning and the fall resulted in
significant damage to Bell’s right eye.”
Reynolds now appeals, arguing nothing of record directly proved
Bell’s fall caused him to sustain the trauma necessary to cause his right eye injury,
and that the Board accordingly erred in reversing the ALJ. We disagree. As stated
in Kroger v. Ligon, 338 S.W.3d 269, 273 (Ky. 2011):
A party who fails to meet its burden before the ALJ must
show on appeal that the unfavorable finding was clearly
erroneous because overwhelming evidence compelled a
favorable finding, i.e., that no reasonable person could
have failed to be persuaded by the favorable evidence.
Evidence that would have supported but not compelled a
different decision is an inadequate basis for reversal on
appeal.
(Footnotes and citations omitted.)
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With that said, while it is true that no evidence directly proved Bell’s
fall sustained the trauma necessary to cause his right eye injury, the circumstantial
evidence was overwhelming. To review, it reflected the following:
• Bell testified he had arrived at work on April 6, 2019, feeling normal. For
two hours, he had been working in his usual location. No evidence suggests
he sustained any injury to his right eye prior to arriving at work that day. He
testified that prior to his fall, he was able to see out of his right eye.
• Prior to his fall, Campbell, who had been talking with him earlier in his shift,
had noticed nothing wrong with Bell – he seemed “okay.”
• When he fell, Bell was either holding equipment or was in an area capable
of causing trauma to his right eye, depending upon how he fell.
• Campbell was the only individual who witnessed Bell fall. He could not
recall if Bell struck anything during the fall. After the fall, however,
Campbell noticed, for the first time, there were signs that Bell had recently
sustained trauma to his right eye. Specifically, Bell had blood coming out of
his right eye; approximately forty-five minutes later, he noticed Bell’s right
eye was “swollen shut,” and Bell complained to Campbell for the first time
that he could not see out of his right eye.
• Bell testified that the first time he lost vision in his right eye was after he had
passed out.
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• Lucas testified that after Bell’s fall, when she picked Bell up from work, she
also noticed signs of recent trauma to Bell’s eye (i.e., a “rust-colored”
substance had soaked into the paper towel Bell had been using to wipe his
right eye; and Bell’s right eye appeared “smooshed”).
• Nothing of record demonstrates Bell sustained trauma to his right eye
between when Campbell assisted him after the fall, and when Bell was
treated at the hospital.
Considering that evidence, we agree with the Board that the ALJ erred
in this respect.
Moving on, the next issue presented on appeal is the type of fall Bell
sustained on April 6, 2019. As indicated, Reynolds argued and the ALJ found
Bell’s fall was “idiopathic,” and thus not work-related, because Bell had admitted
to passing out; because the hospital’s documentation indicated his fall had been
due to a “syncope episode”; and because “[t]here is no proof in the record to
indicate that his work caused his feeling ill and sweaty just prior to his fall.”
However, the Board opined Bell’s fall had been “unexplained,” and thus
presumptively work-related, because substantial evidence did not demonstrate that
any internal weakness or medical condition on Bell’s part had caused his feeling ill
and sweaty just prior to his fall, either – or otherwise explain why Reynolds had
passed out. Reversing the ALJ, the Board determined Bell’s fall was properly
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categorized as “unexplained”; Reynolds consequently had the burden below to
present substantial evidence to rebut that presumption with substantial evidence;
and because Reynolds had produced no such substantial evidence, the injuries Bell
sustained due to the fall were compensable. Upon review, we agree with the Board
in this respect, as well. We adopt the Board’s reasoning as follows:
A review of Kentucky law on the issue begins with the
case of Workman v. Wesley Manor Methodist Home,
462 S.W.2d 898 (Ky. 1971), where benefits were denied
to an employee who fell and broke her hip in the course
of her employment. The facts indicated that the
employee did not slip or stumble but fell after her back
gave way due to an injury previously suffered in one or
possibly two automobile accidents. The Court held that
“an injury from a fall resulting during the course of the
employment but solely from a cause or causes to which
the work is not a contributing factor is not compensable.”
Id. at 901. The Court further noted that, under the
“positional risk theory,” benefits may be allowed for
injuries sustained in a fall “if the employment places the
employee in a position increasing the dangerous effects
of such a fall, such as on a height, near machinery or
sharp corners, or in a moving vehicle.” Id. (quoting
Larson, Workmen’s Compensation Law, § 12.11).
The Workman Court acknowledged there is a rebuttable
presumption that an unexplained fall during the course of
employment is work-related. However, the Court found
that the rebuttable presumption had been reduced to a
permissible inference by evidence that the employee’s
fall was not unexplained but, rather, resulted solely from
a prior, non-work-related back condition. Consequently,
the “old” Board was not compelled to find that the
employment was a causative factor in the employee’s
injuries.
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The continuing viability of the Workman decision was
addressed in Jefferson County Public Schools/Jefferson
County Board of Education v. Stephens, 208 S.W.3d 862
(Ky. 2006), in which the Supreme Court upheld a
determination by the ALJ that the claimant sustained a
work-related injury when she fell walking from a
carpeted surface to a tile floor. There was evidence
introduced the claimant might have experienced
dizziness prior to her fall. However, the ALJ believed
the claimant’s testimony that she did not experience any
such dizziness. The Court stated as follows:
The burden is on an injured worker to prove
every element of her claim, including that a
workplace injury arose out of the
employment. See Workman v. Wesley
Manor Methodist Home, 462 S.W.2d 898
(Ky. 1971); Stasel v. American Radiator &
Standard Sanitary Corp., 278 S.W.2d 721
(Ky. 1955). As explained in Arthur Larson
and Lex K. Larson, Larson’s Workers’
Compensation Law, § 4 (2006), an analysis
of whether a work-related injury arises out
of employment begins with a consideration
of three categories of risk: 1.) risks
distinctly associated with employment (e.g.,
machinery breaking, objects falling,
explosives exploding, fingers getting caught
in machinery, exposure to toxic substances);
2.) risks that are idiopathic or personal to the
claimant (e.g., a disease, internal weakness,
personal behavior, or personal mortal enemy
that would have resulted in harm regardless
of the employment); and 3.) neutral risks
(e.g., a stray bullet, a mad dog, a running
amuck, lightning). Where an employment
and personal cause combine to produce
harm, the law does not weigh the importance
of the two causes but considers whether the
employment was a contributing factor.
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Although one naturally infers that a fall in
the workplace has something to do with the
employment, proving that it arose out of the
employment can be problematic when the
reason that it occurred is unexplained.
Workman v. Wesley Manor Methodist
Home, supra, stands for the principle that an
unexplained workplace fall is presumed to
arise out of the employment unless the
presumption is rebutted. The court
determined subsequently in Indian Leasing
Company v. Turbyfill, 577 S.W.2d 24 (Ky.
App. 1978), that even an idiopathic fall may
be compensable if work placed the
individual in a position that increased its
dangerous effects.
We explained in Magic Coal Co. v. Fox, 19
S.W.3d 88, 95 (Ky. 2000), that rebuttable
presumptions are governed by KRE[1] 301.
Such a presumption shifts the burden of
going forward with evidence to rebut or
meet it to the party against whom it is
directed, but it does not shift the burden of
proof (i.e., the risk of nonpersuasion) from
the party upon whom it was originally cast.
If a presumption is not rebutted, the party
with the burden of proof prevails on that
issue by virtue of the presumption. If a
presumption is rebutted, it is reduced to a
permissible inference. The ALJ must then
weigh the conflicting evidence to decide
which is most persuasive.
Because a fact must be proved with
substantial evidence, a rebuttable
presumption must be met with substantial
1
Kentucky Rule of Evidence.
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evidence. Therefore, an employer asserting
that a workplace fall was idiopathic must
meet the presumption with substantial
evidence to that effect. If the employer does
so, the ALJ must weigh the conflicting
evidence, including the permissible
inference that a workplace fall arises out of
the employment. The burden of persuasion
remains on the worker.
Id. at 866-867.
As an aside, in Jefferson County Public Schools, the employer was
deemed to have produced substantial evidence capable of meeting the presumption
of work-relatedness relative to the claimant’s “unexplained” fall, and to have thus
reduced the presumption of work-relatedness to a permissible inference. As to the
nature of that substantial evidence, the Court indicated that while nothing indicated
“that the claimant developed syncope, fainted, or lost consciousness immediately
before the fall,” some evidence had indicated the claimant had a medical
predisposition and history of suffering from blackout spells. Id. at 867.
And that, in turn, leads to the crux of the Board’s analysis in this
matter. “Fainting,” “passing out,” or “blacking out” can be caused by any number
of conditions, personal or otherwise. Thus, without more, simply noting that a
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claimant suffered a fall due to “fainting” merely begs the question of whether the
claimant’s fall was idiopathic or unexplained.2
Keeping that in mind, the Board’s analysis continued in relevant part
as follows:
Bell testified he had corneal implants approximately
twenty years prior to the date of his fall. After
undergoing a follow up from the surgeries, Bell had not
received any further treatment of his eyes. As noted by
the ALJ, Bell began taking blood pressure medication
after the subject fall. Bell did not know why he passed
out at work. In fact, he went to see Dr. Katherine Dunbar
to find out why he passed out. She ran tests which
provided no explanation. He denied being treated for any
other chronic conditions or being prescribed medication
until he took blood pressure medication following this
incident. Bell denied ever being prescribed blood
pressure medication prior to his April 2019 fall. Notably,
there is no evidence linking potential blood pressure
problems to the fall at work. Bell testified he passed out
and such an episode had never happened before. Bell
explained:
Q: What’s the last thing you remember
before you passed out?
A: Not feeling well at the moment,
sweating. Like I said, I just got disoriented
just all of a sudden. I’ve never had that
experience before in my life. We was only
2
Underscoring this point in its appellate brief, Reynolds hypothesizes (without proof) that
perhaps Bell had arrived at work on April 6, 2019, with an already-traumatized right eye and
that his already-traumatized right eye had, perhaps, caused him to pass out two hours later into
his shift. However, engaging in that base level of speculation could just as easily lead to the
proposition that, perhaps, Bell may also have passed out due to heatstroke owing to his working
conditions; as noted, Bell had been exerting himself, and Duley testified he gave Bell some wet
rags after Bell passed out “because it was hot back there.”
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going to get four coils ready. And then after
we got two coils ready I started sweating
and feeling bad and like I said after that I
passed out. That’s all I remember.
Q: When you got to work that day, were
you feeling like your normal self?
A: Uh-huh.
Q: Is that a yes?
A: Yes. I’m sorry.
Q: . . . but are you telling me then that the
symptoms that you had of feeling
disoriented and getting a little sweaty, did
those come on suddenly?
A: Yes.
The medical records of Baptist Health Louisville reflect
the reason for the visit was “syncope” and Bell provided
the following: “I got dizzy and sweaty today while at
work and passed out hitting my head on the ground and
busting my right eye.” Under “Review of Systems,” is
the following: “Neurological: Positive for syncope.
Negative for weakness, numbness and headaches.” The
final diagnosis was “Syncope and collapse. Ruptured
globe of right eye, initial encounter.” Baptist Health’s
records contain no explanation for how or why the
alleged syncope occurred. Consequently, the cause of
the alleged syncopal episode was and is unknown.
After having carefully considered the facts, the law, and
arguments of counsel, we agree with Bell that the ALJ
erroneously determined his fall was idiopathic and not
work-related. Reynolds put forth no evidence supporting
the theory that something personal to Bell caused his fall.
Further, it submitted no evidence Bell possessed some
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physical or medical condition that caused him to fall.
Reynolds may have persuaded the ALJ that nothing it did
caused the fall. That alone, however, does not shift the
inference from a rebuttable presumption of work-
relatedness to the permissible inference. As the
Kentucky Supreme Court pointed out in Jefferson County
Public Schools, supra,
It was the employer’s burden to go forward
with substantial evidence of a non-work-
related cause for the claimant’s fall in order
to rebut the Workman presumption.
Id. at 867.
Even though the hospital records contain a diagnosis of
syncope as the chief complaint, those records do not
explain the cause of the syncope. The medical records
and Bell’s testimony do not link the workplace fall to a
prior condition of Bell’s. Thus, we believe the ALJ
erroneously concluded the fact that there was a diagnosis
of syncope caused the fall to be idiopathic. That is not
the test. Rather, Reynolds must come forward with some
explanation as to why the syncopal episode occurred.
Applying that standard, Reynolds did not meet the above-
described burden. The Court of Appeals (now Supreme
Court) phrased it best in Workman:
In blunt terms this means that without such
rebutting evidence the Board [now ALJ]
cannot find against him on the issue of
whether the accident arose out of the
employment.
Id. at 900.
Unlike in Workman, Reynolds did not demonstrate the
cause of the fall. In Workman, Wesley Manor introduced
evidence that Workman had the following problems:
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Prior to the time of the hip injury Mrs.
Workman had suffered injuries to her back
in two separate automobile accidents, one on
February 14, 1964, and the other on
November 3, 1965, following each of which
she had brought suit against other parties for
her damages. The second of these two
damage suits was pending at the time she
broke her hip, and on March 8, 1967, in that
action, she testified in a deposition as
follows.
Id. at 899.
The 1967 deposition in the damage suit was introduced
as evidence against Workman during the course of the
workers’ compensation proceeding. The Board
concluded Workman’s fall was idiopathic due to her pre-
existing back problems and dismissed her claim. The
Court of Appeals (now Supreme Court) explained the
importance of Workman’s previous testimony in the
personal injury action involving an injury to the same
area of the back:
Mrs. Workman’s testimony in this
proceeding would have entitled her as a
matter of law to a favorable finding had
there been no rebutting or countervailing
evidence on the issue of causation, but the
subsequently introduced content of what she
had said while testifying in the damage suit
constituted enough evidence that the
accident resulted solely from the weakened
condition of her back, and not in any respect
from the performance of her work, to reduce
the rebuttable presumption in her favor to a
permissible inference, leaving the board free
either to decide in her favor or to remain
unpersuaded, as it did, that her work was a
causative factor in precipitating the injury.
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That being the case, the circuit court was
correct in not disturbing the action of the
board.
Id. at 901.
Our holding is also consistent with Vacuum Depositing,
Inc. v. Dever, 285 S.W.3d 730, 733-734 (Ky. 2009), in
which the Supreme Court stated as follows:
Kentucky has adopted a presumption that an
unexplained workplace fall arises out of the
employment unless the employer presents
substantial evidence to show otherwise.
[footnote omitted] The employer cannot
prevail in such a case unless it shows
affirmatively that the fall was not work-
related. The employer in Workman did so
by showing that Ms. Workman’s testimony
in the workers’ compensation claim
conflicted with her testimony in an unrelated
civil suit that her back had been
symptomatic and caused her to fall before
the incident at work. The court determined
that the employer offered sufficient evidence
that the fall was idiopathic to negate the
presumption that it was not.
The court explained subsequently in
Turbyfill that an idiopathic fall may be
compensable if work places the injured
worker in a position that increases its
dangerous effects. [footnote omitted]
Turbyfill’s employer negated the Workman
presumption by showing that his fall
resulted from a non-work-related heart
attack. The court found the fall to be
compensable, however, because the fact that
he was working 12 feet off the ground
increased the fall’s effects.
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To summarize, a work-related fall occurs if
the worker slips, trips, or falls due to causes
such as a substance or obstacle on the floor
of the workplace or an irregularity in the
floor. When the cause of a workplace fall is
unexplained, the fall is presumed to be
work-related under Workman. Unexplained
falls divide ultimately into two categories:
1.) those the employer has shown to result
from a personal or idiopathic cause but
which may be compensable under the
positional risk doctrine; and 2.) those that
remain unexplained and entitled to a
presumption of work-relatedness.
(emphasis added.)
The claimant alleged an unexplained fall
but, as in Workman, the ALJ found that the
employer rebutted the presumption of work-
relatedness and showed the fall to be
personal or idiopathic. The employer asserts
that the Board erred by substituting its
judgment for the ALJ’s and, thus, that the
Court of Appeals erred by affirming the
Board. We disagree.
In the case sub judice, the medical records reflect a
diagnosis of syncope but do not show its cause or, more
importantly, relate it to a non-work-related cause. Thus,
the employer as required in Dever did not show the fall
resulted from a personal or idiopathic cause. The
following language from Dever is directly applicable to
this case:
The ALJ characterized the claimant as “not
an entirely credible witness” but determined
that a workplace fall occurred although its
cause was idiopathic. The fact that the
claimant’s work did nothing to cause her fall
was immaterial under Workman. The record
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contained no evidence that she suffered from
a pre-existing disease or physical
weakness that caused her to fall and no
evidence that she was engaged in conduct
when she fell that would take the injury
outside Chapter 342. Nor did the record
contain evidence that her footwear was
inherently dangerous and inappropriate for
work in the employer’s officers. Like the
Board and the Court of Appeals, we are
convinced that evidence the claimant was
clumsy and wearing high heels was not
sufficient to prove that the cause of her fall
was idiopathic. The evidence did not
overcome the presumption that the fall was
unexplained and, thus, that it was work-
related.
Id. at 734. (emphasis added.)
The record contains no evidence, as mandated by Dever,
Bell suffered from a pre-existing disease or physical
weakness causing his fall. There is no evidence he was
predisposed to a syncopal episode when he fell, thereby
removing the fall and injury from the work-related realm.
In the case sub judice, there is no such evidence
establishing, as mandated by Dever, that Bell suffered
from a pre-existing disease or condition rendering him
likely to suffer a syncopal episode resulting in a fall.
That being the case, Bell’s fall was unexplained.
In light of the foregoing, we agree with the Board’s decision to
reverse the ALJ, due to Reynolds’ failure to adduce substantial evidence
demonstrating Bell’s fall was idiopathic; its decision to remand for a finding that
the fall was unexplained and that the physical effects of the fall are compensable;
and its directions for the ALJ, in light of the overwhelming evidence of causation
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discussed above, to accordingly find Bell’s injury to his right eye compensable,
and to hold any other proceedings not inconsistent therewith. Accordingly, we
AFFIRM.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE WILLIAM
BELL III:
Lyn Douglas Powers
Louisville, Kentucky Mark B. Wallace
Louisville, Kentucky
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