Fetzer v. North Dakota Workforce Safety & Insurance

dissenting.

[¶ 16] I respectfully dissent. I would adopt the positional-risk doctrine and reverse the district court judgment affirming the Administrative Order.

[¶ 17] Before 1977, our statute defined a compensable injury as one arising in the “course of employment.” See Schlenk v. Aerial Contractors, Inc., 268 N.W.2d 466, 469 (N.D.1978). Our legislature amended the definition of a compensable injury in 1977 to “an injury by accident arising out of and in the course of employment.” 1977 N.D. Sess. Laws ch. 579, § 2. Our Court’s interpretation of this amendment, which added the words “out of and,” was articulated in Westman v. N.D. Workers Comp. Bureau, 459 N.W.2d 540, 545 (N.D.1990). Westman was injured when a truck in which he was riding and driven by an employee of Kedney rolled over in a ditch while en route to Minot where Westman was to help unload the truck. Id. at 543. We held: “An injury arises in the course of employment if it ‘occurs within the period of employment at a place where the employee may reasonably be and while he was engaged in performing the duties of his contract or is engaged in something incident thereto and contemplated thereby.’ ” Id. at 545 (quoting Welch v. N.D. Workmen’s Comp. Bureau, 75 N.D. 608, 31 N.W.2d 498, 502 (1948)). We concluded that “the injury arose out of and in the course of Westman’s employment with Kedney Warehouse.” Id. In Mitchell v. Sanborn, 536 N.W.2d 678, 686 n. 4 (N.D.1995), we stated that “[a]lthough we have not explicitly defined the scope of the 1977 amendment, our statement in Westman encompasses injuries ‘arising out of and in the course of employment.’ ”

[¶ 18] The Mitchell case involved whether an act of horseplay, which injured a fellow employee, was “ ‘an injury by accident arising out of and in the course" of employment’ ” and, thus, barred an action in tort against the co-employee. Id. at 681. We stated: “For purposes of receiving benefits, an employee’s injury arises out of and in the course of employment if it ‘occurs within the period of employment at a place where the employee may reasonably be and while he was engaged in performing the duties of his contract or is *545engaged in something incident thereto and contemplated thereby.’ ” Id. at 684 (quoting Westman, 459 N.W.2d at 545). In Mitchell, our Court noted the legislative history of the 1977 amendment changing the definition of compensable injury. Id. at 686 n. 4. The majority opinion leaves out significant parts of the drafter’s explanation of this amendment. The full explanation given was:

One important change proposed in this section is the addition of arising “out of and” in the course of. Presently the law only requires that an injury arise in the course of employment. Our courts have interpreted that to mean that if an employee is at the place he is supposed to be at the time he is supposed to be there, and engaged in an activity whose purpose is related to employment, any injury he receives is compensable.

That interpretation has recently resulted in a court ruling requiring coverage for an employee involved in a fight with another employee because of an incident which had occurred during the prior weekend which bore no relationship to their work. Presumably all fights which occur in the course of employment, whether related to work or not, are now covered. It is hoped — and it is the intent of the Bureau — that the addition of “out of and” would change that interpretation. Virtually all other states require that an injury arise out of and in the course of employment.

Hearing on S.B. 2158 Before the Senate Industry, Business and Labor Comm., 45th N.D. Legis. Sess. (Jan. 19, 1977) (testimony of Richard Gross, Counsel for Workers Compensation Bureau) (emphasis added). I agree with Fetzer’s analysis of this history. I am of the opinion that the addition of the words arising “out of and” were meant to require that the injury have a relationship to the employment. This analysis is consistent with our past definition of “arising out of and in the course of’ employment. Our Court has said: “ ‘Arising in the course of employment’ has reference to the time of service, the hours of employment; ‘arising out of the employment’ is determined by the relation to the master’s business in which the employee works; while ‘arising out of and in the course of employment’ requires a combination of both.” Kary v. N.D. Workmen’s Comp. Bureau, 67 N.D. 334, 272 N.W. 340, 341 (1937). We also said in Kary that “[sjometimes the employment will be found to directly cause the injury, but more often it arises out of the conditions incident to the employment.” Id. at 341-42.

[¶ 19] The purpose of the Workforce Safety and Insurance Act is set forth in N.D.C.C. § 65-01-01:

The state of North Dakota, exercising its police and sovereign powers, declares that the prosperity of the state depends in a large measure upon the well-being of its wage workers, and, hence, for workers injured in hazardous employments, and for their families and dependents, sure and certain relief is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding, or compensation, except as otherwise provided in this title,

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Our Court has said: “The purpose of the Workers Compensation Act is to provide sure and certain relief for workers injured in their employment, and we construe the Act with the view of extending its benefit provisions to all who can fairly be brought within them. The Act is remedial, and we construe it to afford relief and to avoid forfeiture.” Ash v. Traynor, 2000 ND 75, ¶ 8, 609 N.W.2d 96 (citation omitted); Shiek v. N.D. Workers Comp. Bureau, 2001 ND 166, ¶ 26, 634 N.W.2d 493.

*546[¶ 20] There are three primary categories of risk in the context of workers’ compensation law: “(1) risks distinctly associated with employment, (2) risks personal to the claimant, and (3) risks of neither distinctly employment nor distinctly personal in [sic] character.” Milledge v. Oaks, 784 N.E.2d 926, 930 (Ind.2003). Risks in the first category are the types of “things that can go wrong around a modern factory, mill, mine, transportation system, or construction project.” Id. (citing 1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law, § 4.01, at 4-1-4-2 (2002)). Risks, such as these, that are “distinctly associated with the employment” are considered “universally com-pensable.” Logsdon v. ISCO Co., 260 Neb. 624, 618 N.W.2d 667, 672 (2000). The second category of risk involves harms “that can be attributed to personal or idiopathic” characteristics of individual employees. Id. Injuries solely caused by personal conditions, “such as a bad knee, epilepsy, or multiple sclerosis,” fall within this category. In re Margeson, 162 N.H. 273, 27 A.3d 663, 667 (2011). These harms are considered “universally noneompensa-ble.” Logsdon, 618 N.W.2d at 672. The third type of risks are considered “neutral,” as they are “of neither distinctly employment nor distinctly personal character.” Margeson, 162 N.H. 273, 27 A.3d at 667 (citation omitted). Unexplained falls are typically considered neutral risks. Id.; Circle K Store No. 1131 v. Indus. Comm’n of Ariz., 165 Ariz. 91, 796 P.2d 893, 898 (1990).

[¶ 21] Courts have taken three approaches to the “arising out of’ requirement in unexplained fall cases. Milledge, 784 N.E.2d at 931; Logsdon, 618 N.W.2d at 672. The first approach requires the employee “to rule out idiopathic causes for the fall.” Milledge, 784 N.E.2d at 931. If the employee successfully carries this burden, “an inference arises that the fall arose out of employment.” Id. Under the second approach, the employee must establish a causal connection between the injury and the employment. Logsdon, 618 N.W.2d at 672 (citing Brickson v. ILHR Dep’t, 40 Wis.2d 694, 162 N.W.2d 600 (1968)); Circle K, 796 P.2d at 897 (citing McClain v. Chrysler Corp., 138 Mich.App. 723, 360 N.W.2d 284 (1984)). Compensation is denied when a causal connection cannot be shown. Logsdon, 618 N.W.2d at 672. The third approach is the positional-risk doctrine. Under the positional-risk approach, “ ‘[a]n injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he was injured.’ ” Milledge, 784 N.E.2d at 931 (quoting Larson, supra, § 3.05, at 3-6). “This but for reasoning is the foundation of the positional risk doctrine, under which if the ‘in the course of employment element is met, then there is a rebuttable presumption that the injury ‘arises out of employment.” Id.

[¶ 22] Many jurisdictions have adopted the positional-risk doctrine. Since neutral risks are not associated with the employment, the employer understandably contends it should not have to bear the expense. “The alternative, of course, is to place the burden on the employee.” Larson, supra, § 7.02[4], 7-20. Jurisdictions have adopted the positional-risk doctrine on “the principle that employees who are on the job and performing duties for their employers should be compensated for injuries occurring in the course thereof.” Logsdon, 618 N.W.2d at 673. The doctrine is further based on the rationale that “the particular source of injury is neutral because the nature of a known risk is associated with neither the employment nor the employee personally.” Id. The risk may also be “neutral” because the nature of the cause of harm is unknown. Id.; see also

*547Larson, supra, § 7.04[l][a], 7-24 (noting a particular source of injury may be classified as “neutral for either of two reasons: The nature of the risk may be known, but may be associated neither with the employment nor the employee personally; or the nature of the cause of harm may be simply unknown.”). Professor Larson states: “The commonest example of the latter is the unexplained fall in the course of employment. If an employee falls while walking down the sidewalk or across a level factory floor for no discoverable reason, the injury resembles that from stray bullets and other positional risks in this respect: The particular injury would not have happened if the employee had not been engaged upon an employment errand at the time.” Id. Professor Larson points out that it is significant that the majority of courts confronted with the compensability of an unexplained fall have awarded compensability under the positional-risk doctrine. Id. I recognize that a number of jurisdictions have rejected the doctrine,1 but I am persuaded by Professor Larson and the majority of courts that the positional-risk doctrine should be adopted in

unexplained fall cases. See Larson, supra, 7.04[1][a]; Milledge v. Oaks, 784 N.E.2d 926, 934 n. 2 (2003) (setting forth courts that have adopted the positional-risk doctrine); Circle K Store No. 1131 v. Indus. Comm’n of Ariz., 165 Ariz. 91, 796 P.2d 893 (1990); Delaplaine Farm Ctr. v. Crafton, 2011 Ark. App. 202, — S.W.3d -, 2011 WL 811685 (2011); Horodyskyj v. Karanian, 32 P.3d 470 (Colo.2001); Ryerson v. A.E. Bounty Co., 107 Conn. 370, 140 A. 728 (1928); Mayo v. Safeway Stores, Inc., 93 Idaho 161, 457 P.2d 400 (1969); Milledge v. Oaks, 784 N.E.2d 926 (Ind.2003); Tommy Thompson Produce Co. v. Coulter, 678 S.W.2d 794 (Ky.Ct.App.1984); Mulready v. Univ. Research Corp., 360 Md. 51, 756 A.2d 575 (2000); Stanley Baran’s Case, 336 Mass. 342, 145 N.E.2d 726 (1957); Whetro v. Awkerman, 383 Mich. 235, 174 N.W.2d 783 (1970); United Fire & Cas. Co. v. Maw, 510 N.W.2d 241 (Minn.Ct.App.1994); Johnson v. Roundtree, 406 So.2d 810 (Miss.1981); Logsdon v. ISCO Co., 260 Neb. 624, 618 N.W.2d 667 (2000); Mule v. N.J. Mfrs. Ins. Co., 356 N.J.Super. 389, 812 A.2d 1128 (N.J.Super.Ct.App.Div.2003); Ensley v. Grace, 76 N.M. 691, 417 P.2d 885 (1966); Grimaldi v. Shop Rite Big V, 90 A.D.2d 608, 456 N.Y.S.2d 176 (N.Y.App.Div.1982); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963); Smith v. Apex Div., Cooper Indus. Inc., 88 Ohio App.3d 247, 623 N.E.2d 700 (1993); Turner v. B Sew Inn, 18 P.3d 1070 (Okla.2000); Steinberg v. S.D. Dep’t of Military & Veterans Affairs, 607 N.W.2d 596 (S.D.2000); Clodgo v. Rentavision, Inc., 166 Vt. 548, 701 A.2d 1044 (1997); Am. Mfrs. Mut. Ins. Co. v. Hernandez, 252 Wis.2d 155, 642 N.W.2d 584, 589-91 (Wis.Ct.App.2002) (lacks the “in the course of’ language but requires that, at the time of the injury, the employee was “‘performing service growing out of and incidental to his or her employment’ which refers to the ‘time, place, and circumstances’ under which the injury occurred”).

[¶ 23] Professor Larson points out that “[e]ither the employer or the employee must bear the loss; to show connection *548with the employment, there is at least the fact that the injury occurred while the employee was working; to show connection with the employee personally there is nothing; therefore, although the work connection is slender, it is at least stronger than, any connection with the claimant’s personal life.” Larson, supra, § 4.03, 4-3. I agree. I would join the growing majority of courts that have adopted the positional risk doctrine in unexplained fall cases

and reverse the judgment of the district court and the administrative order.

[¶ 24] MARY MUEHLEN MARING