BELLOMO v. OSCO DRUG, No. 012288-87 (Jun. 30, 1995)

JOAN BELLOMO, EMPLOYEE vs. OSCO DRUG, EMPLOYER, AMERICAN MOTORIST, INSURER

BOARD No. 012288-87Commonwealth of Massachusetts Department of Industrial Accidents
Filed: June 30, 1995

REVIEWING BOARD:

Judges Fischel, McCarthy, and Wilson.

APPEARANCES:

Robert F. Gabriele, Esq., for the employee.

Paul W. Goodrich, Esq., for the insurer.

FISCHEL, J.

We recommit this case to the administrative judge because the decision adopted verbatim from the insurer’s draft reflects no personal analysis, contains error of law and findings that are both inconsistent, and inadequate. See Cormier v. Carty, 381 Mass. 234, 236, 408 N.E. 860, 862 (1980) (for court treatment of verbatim adopted draft decisions). While this board shows deference to the decisions of administrative judges, see Giovanella v. Westborough State Hospital,
7 Mass. Workers’ Comp. Rep. 177, 180 (1993), decisions which fail to evidence a “badge of personal analysis” are more likely, in a close case, to be remanded for further findings where the judge has neither personally prepared the findings nor “so reworked a submission by counsel that it is clear that the findings are the product of his independent judgment.” Id. at 237-238.

Here the proposed findings and draft decision of the insurer are identical to the hearing decision, including erroneous relevant dates[1]
which are replicated. The impression conveyed is one absent of personal analysis. Moreover, the findings are legally erroneous, insufficient, contradictory and ambiguous. Where it is doubtful that the factual findings are supported by the evidence, or that correct legal principles were applied to the facts, the case is appropriate for remand. See G.L.c. 152, § 11C; and see Donahue v. Petrillo,
8 Mass. Workers’ Comp. Rep. 25, 28 (1994) and Praetz v. Factory Mut. Eng’g Research, 7 Mass. Workers’ Comp. Rep. 45, 47 (1993).

A factual background is necessary to the legal issues raised. The employee, aged fifty-six at the time of the hearing in 1990, began working at Osco Drug as a sales clerk in 1979. On March 5, 1987 she fell in the bathroom at work. The fall was unwitnessed and the cause of the fall is disputed. There was evidence that the employee, an insulin dependent diabetic, had become lightheaded and fallen. (Tr. 20-22.) There was evidence that the employee slipped on something, perhaps paper towels, on the floor of the bathroom. (Tr. 4, 6.)

The decision contains the finding that the employee “struck her head on the wall prior to falling onto the floor.” (Dec. 11.) The medical experts agreed that she had cervical vertebrae fractures and was quadriplegic, as a result of her head hitting the wall.[2] A finding was made that the injury could not be compensable because a bathroom:

“was not peculiar to her work environment and that a bathroom is too common to be considered a particular risk associated with her employment. McNicol’s Case, 215 Mass. 497 at 499 (1913).”[3]

(Dec. 12.) Having found that the employee struck her head on the wall prior to falling to the ground (Dec. 11), the decision concluded that the resultant disability was not causally related to her employment because:

a wall is too common to every day living and therefore did not place the employee in an environment that presents a significant risk which is associated with the employment.

(Dec. 13.) In finding that a wall and a bathroom are both too common to daily living to be risks associated with the employment, reliance was made in part upon McNicol’s Case, supra, a 1913 decision which excluded injury “from a hazard to which the workmen would have been equally exposed apart from the employment.” Id. at 499.[4]

That restrictive definition of when an injury arose out of employment was abandoned by the court long ago. Caswell’s Case, 305 Mass. 500 (1940);[5] Souza’s Case, 316 Mass. 332
(1944); McLean’s Case, 323 Mass. 35 (1948); Baran’s Case, 336 Mass. 342 (1957). The court redefined when an injury would be deemed to be causally connected to work in Caswell’s Case, supra:

“An injury arises out of the employment if it arises out of the nature, conditions, obligations or incidents of employment . . . looked at in any of its aspects.” Thom v. Sinclair, [1917] A.C. 127, 142, 143. An employee who, in the course of his employment, is hurt by contact with something directly connected with his employment, receives a personal injury arising out of his employment, even though the force that caused the contact was not related to the employment. . . . [I]f he is injured by contact physically with some part of the place where he works, then . . . he at once associates the accident with his employment and nothing further need be considered. So that if . . . he slips upon the premises, there is no need to make further inquiry as to why the accident happened.

Caswell’s Case, supra, at 502-503. An injury “need not arise out of the nature of the employment.” Id. at 502. An employee need not be engaged in the actual performance of work at the moment of injury. “It is enough if he is upon his employer’s premises occupying himself consistently with his contract of hire in some manner pertaining to or incidental to his employment.” Souza’s Case, supra, at 335.

Acts for personal comfort, such as needing to use an employer’s rest room facilities, are a necessary incident of employment, and injuries sustained in the course of such an activity do arise out of the employment relationship. See Doyle’s Case, 256 Mass. 290 (1926). It was an error of law to apply the outmoded McNicol’s doctrine and to conclude that any injury sustained in a bathroom could not be compensable. On remand correct legal principles should be applied, including that the situs of injury in the employer’s rest room is no bar to compensability.

In review of the adopted verbatim draft decision we find that the evidence of what caused the employee’s fall was inadequately addressed. The decision is inconsistent as to whether the employee slipped, causing her fall, or fell because of dizziness attributable to her non-industrial condition. At one point in the decision the finding is made that: “Upon entering (the bathroom) she slipped and fell striking her head.” (Dec. 5.) Elsewhere, the finding is made that the fall resulted from a hypoglycemic reaction. (Dec. 6, 10.) On remand clear findings should be made on this crucial aspect of the case: did the employee slip because of something on the floor of the bathroom,[6]
or did she fall because of a personal condition not related to the work?[7]

If an employee is injured because “he slips upon the premises there is no need to make further inquiry as to why the accident happened . . . (because) the accident necessarily arises out of the employment.” Caswell’s Case, supra, at 503. There need not be any “special exposure to danger.” Id. at 504. Thus, if the employee’s fall was the result of slipping on something on the bathroom floor, then, like any other industrial injury, if incapacity ensues the incident is compensable. See Doyle’s Case, supra.

If instead, the finding is made that the cause of the employee’s fall was either unknown, or idiopathic, and solely stemming from some personal condition unrelated to the work, the test of compensability is then whether the physical aspects or physical arrangement of the workplace actually posed a source of danger to the employee, so as to operate as the proximate cause of the injury, even though some non-work-related infirmity may be the remote cause of the injury. Sullivan’s Case, 241 Mass. 9 (1922);[8] Holmes’s Case, 267 Mass. 307 (1929);[9] Varao’s Case, 316 Mass. 363, 364-5
(1944).[10] Where a fall is idiopathic (i.e., self-originated) in nature, the law distinguishes between the “remote” cause (i.e., the idiopathy) and the “proximate” cause (i.e., the injurious contact with something that presents a hazard at work). The underlying cause of the fall is seen as the “remote” cause of the injury, while the injuries stemming from the contact with the source of danger in the work environment are deemed the “direct and proximate” cause of the fall.[11] Sullivan’s Case, supra; Holmes’s Case, supra. The injury is compensable if the employment places the employee in a position that increases the dangerous effects of an idiopathic fall.[12] 1 Larson’s Workers’ Compensation Law,
§ 12.11 pp 3-311 and cases cited therein. Whatever the physiological origin of the fall, “if the injury is caused by falling into a machine or some other physical feature of the premises, the injury arises out of the employment.” L. Locke 29 Workmen’s Compensation § 220 at 255; See Dow’s Case, 231 Mass. 348, 352 (1918).

“Where, as here, the claim for compensation is based upon the ground that the injuries sustained by the employee were caused by the physical aspects or arrangement of the place where he was required to perform his services, the particular physical set-up commonly constitutes a risk or hazard incident to employment.” Varao’s Case, supra, at 364-365. The place of employment may be structurally sound and in good condition, yet pose a work related danger because the physical aspect or arrangement of the place combines with the employee’s non-work-related infirmities to cause injury.[13] Id. at 365.

The cases discuss a variety of physical aspects of the workplace that can equate with a source of danger to the employee: a metal box in Varao’s Case, supra; a partition or door in Sullivan’s Case, supra;
a fall from a height in Holmes’s Case, supra. In short, the physical aspects of the workplace that can create a hazard may include a physical object in the workplace or the very structure of the workplace itself. Compare Cinmino’s Case, 251 Mass. 158 (1925) (level floor exception applied as the floor was not a risk of employment);[14]
followed in Rozek’s Case, 394 Mass. 205 (1936) (level floor exception).[15] There do not appear to be any Massachusetts cases since 1936 involving the level floor exclusion.[16]

In summary, we vacate and recommit for further findings because this decision evinces no badge of personal analysis and contains errors of law, as well as inadequate and contradictory factual findings. On remand, the judge is to identify and find whether the employee fell because she slipped on something on the employer’s premises. If he finds that a combination of events occurred, e.g., while experiencing an episode of hypoglycemic dizziness, the employee also slipped on something on the floor of the bathroom, then because slipping played a part in the fall, the injuries are compensable.

If the judge does not credit her testimony that she slipped in the bathroom, and concludes that the cause of the fall was soley idiopathic, he must then find whether the employee fell directly to a level floor, or whether in falling the employee came in contact with some physical hazard of the workplace. If, in a solely idiopathic fall, the judge finds she fell directly to a level floor, he should determine whether the circumstances of her work significantly increased her risk of injury. In view of the opinion of Dr. Pick, that when the employee fell she broke her neck because her head struck and wedged on the tile wall, findings should be made on remand as to the configuration of the bathroom, and whether the dimensions of the room in relation to where the employee had to stand were such that there was no room to fall and avoid hitting the sink, wall, or bathroom appliances. If the employee’s neck was fractured by contact with hazardous aspects of the physical set up of the job site, then it, in conjunction with the employee’s infirmity renders the case compensable. See Caswell’s Case, supra; Varao’s Case, supra. This case is recommitted for findings in accordance with this decision.

So ordered.

Judges McCarthy and Wilson concur.

[1] The date of the employee’s fall erroneously appears as January 3, 1989 on page 3 of the insurer’s draft and the decision, and appears as March 5, 1987 on page 2 of both decisions.

The date of the hearing erroneously appears as June 8, 1990 on page one of the insurer’s draft and the decision, and later appears as July 12, 1990 on page 3 of both decisions.

[2] Dr. Robert Pick, who examined the employee for the insurer, opined that “it [was] more likely than not that she probably struck the wall while falling down. . . . [D]uring the fall, I think Ms. Bellomo became essentially wedged against the wall with her head, causing the neck to be the fulcrum which eventually gave.” (Ex. 10.)

Dr. Thomas R. Peterson, opined that striking her head against the wall caused severe fractures of two cervical vertebrae, immediately compressing her spinal cord. (Ex. 9.)

[3] In McNichol’s Case, 215 Mass. 497, 499 (1913), the Industrial Accident Board awarded compensation to an employee who, in the performance of his duties, was attacked and beaten to death by an drunken co-employee known to the employer to be habitually intoxicated and quarrelsome. The court agreed that such injury and death plainly arose out of and in the course of employment. In defining the meaning of “arising out of the injury” the court said that compensable injury must originate in a risk traced to the employment as a contributing proximate cause, and be peculiar to the work and not common to the neighborhood. Id. at 499.

[4] The “peculiar risk” and “special hazard” requirements were judicially created, and not contained within the language of c. 152.

[5] In a section of his treatise titled “The Modern Trend — Caswell (1940) Overcomes McNicol (1913),” Locke writes that the broader definition of an industrial injury in Caswell’s Case, infra at 502-503, replaced the earlier restrictive interpretation in McNicol’s Case, supra at 499 (1913). L. Locke, 29 Massachusetts Practice, § 212 at 229 (1981). He maintained that the court “completely repudiated the McNicol doctrine of increased risk and peculiar hazard” and that decisions based on a supposed requirement of “increased risk” or “peculiar hazard” rest on an obsolete basis and should not be regarded as controlling, whenever the employment has brought the employee in contact with the actual risk which produced the injury. Id. at 230.

[6] The employee testified that after accessing the 3 digit code she took two or three steps into the bathroom and felt her foot skid on something, causing her to slip on the floor. She testified that she had no recall of what was on the tile bathroom floor when she slipped that day, but that the floor usually had paper and paper towels on it, and wetness around the drain. (Tr. 4, 6, 23, 25.)

The decision contains a finding that the employee testified that the bathroom floor was even and dry (Dec. 6), but there was no such evidence in the record.

[7] There was evidence that the employee had prior to 1987 experienced loss of consciousness as a result of hypoglycemic diabetic reactions in the past. (Tr. 7, 17-22.) The employee denied feeling such a reaction coming on March 5, 1987, and testified that was not her reason for seeking out the rest room. (Tr. 7.) The initial hospital record for the March 1987 fall contains a history that the employee went to the ladies room because she felt an impending hypoglycemic reaction. (Tr. 20.) Her treating physician attributed her fall in the bathroom to a hypoglycemic episode. (Tr. 17-22; Ex. 10.) She testified that she was unconscious after the fall woke up in the hospital and was confused, and did not recall giving such history. (Tr. 22, 23, 25.)

[8] In Sullivan’s Case, 241 Mass. 9 (1922), a sales lady at Jordan Marsh went to lie down in the employer’s rest room because of personal, non-work-related dizziness. While in the rest room, she fell through the glass panel in the door of the rest room, severed an artery in her wrist, and died. The board found that “the illness which caused the fall of the employee was the remote cause of her death and, that the fall through the glass door was the dominant and proximate cause of the personal injury which resulted in her death.”

[9] In Holmes’s Case, 267 Mass. 307 (1929), the employee was sitting on a block of wood in the sun outside the employer’s back door. Toward the end of his lunch hour, he “kind of dozed off” when “something overc[a]me” him, and he fell out of the door, landing 9 feet below, and injuring his right hip. The board found that the claimant’s condition, which was due to dizziness or other causes, was the remote cause of his injury, and that the dominant or proximate cause was his fall out of the door, which resulted in his injury.

[10] In Varao’s Case, 316 Mass. 363 (1944), the employee was seized with an attack of dizziness caused by hypertensive heart disease, unrelated to his work, and fell down, striking his head on an iron box, causing death. The board found that the fall upon a box was a risk of employment; that the cause of the fall was the remote cause of the injury; and that the fall itself upon the iron casing was the dominant and proximate cause of the employee’s death; and thus that the injury which resulted in his death arose out of his employment. The insurer argued on appeal to the court that the cause of the fall was the cause of the injury. The court noted that while the cause of the fall was heart disease, it did not follow that heart disease was the cause of death, where the evidence showed that the employee was alive when he came in contact with the motor box and the autopsy revealed that he died from the injury and not of the disease. The court affirmed the award of compensation.

[11] In the instant case there is a finding at one point that “the Employee’s injuries were a result of hypoglycemia” (Dec. 6-7), although there is no medical evidence to suggest that hypoglycemia is the proximate cause of quadriparesis. On remand the judge should make findings as to the remote cause of her fall. Then he should make findings as to the proximate cause of the quadriparesis injury sustained.

[12] No findings were made in the instant case as to the size of the employer’s rest room, and the risk that a person falling in the rest room would come in contact with a tile wall of the bathroom. On remand, findings should be made as to the likelihood, given the dimensions of the bathroom, that a falling employee could have avoided contact with the bathroom fixtures or tile wall.

[13] The fact that the employee may have fallen as a result of hypoglycemia does not bar a recovery, if the employment presents a hazard. See Cusick’s Case, 260 Mass. 421 (1927), involving an employee with epilepsy who fell down stairs for unknown reasons, and died from a skull fracture. The court upheld the board’s award of compensation to the dependents on the finding that “the employee’s death resulted not from epilepsy but because of the fracture of his skull.” Id. at 422. The court stated:

The fact that he suffered from epilepsy does not bar a recovery. The protection of the statute is not limited to employees who are in good health. It includes all employees mentioned in the statute who are in the service of the employer under a “contract of hire.” G.L.c. 152, § 1(4). “The previous condition of health is of no consequence. . . . It is the injury arising out of the employment and not out of the disease of the employee for which compensation is to be made. Yet it is the hazard of the employment acting upon the particular employee in his condition of health and not what the hazard would be if acting upon a healthy employee or upon the average employee. The act makes no distinction between wise or foolish, skilled or inexperienced, healthy or diseased employees. . . . [I]f, while doing the work for which he is hired, he suffers an injury which may be attributed to his employment and not solely to some disease or physical weakness not caused by the employment, he may recover.” Id.

[14] In Cinmino’s Case, 251 Mass. 158 (1925), the board awarded compensation to the widow of an employee who, for some physical reason not connected to his employment, fell, fractured his skull on the floor, and died. The court reversed the award, relying o McNicol’s Case, 215 Mass. 497 (1913), to conclude that a concrete floor was not a risk or hazard of employment. Id. at 159. As noted above the restrictive definition of work relation asserted in McNicol’s Case has been superceded. Baran’s Case, 336 Mass. 342, 344 (1957). Pursuant to Varao’s Case, supra, a hazard or risk in the workplace would appear to be needed in conjunction with an idiopathic fall to render an injury compensable.

[15] In Rozek’s Case, 294 Mass. 205 (1936), the board awarded survivor’s benefits when an employee fell to a concrete floor for unknown, non-work-related reasons, fractured his skull and died. Citing Cinmino’s Case, 251 Mass. 158 (1925), the court concluded that a concrete floor was not a hazard of the employment, and affirmed a superior court reversal of the award.

[16] Samuel B. Horovitz, author of “Practice and Procedure Under the Massachusetts Workmen’s Compensation Law,” Hildreth Printing Co. Boston, Ma. (1930) “Horovitz on Workmen’s Compensation,” Wright and Potter Printing Co., Boston Ma. (1944); and “Injury and Death under Workmen’s Compensation Laws,” Wright and Potter Printing Co. Boston, Ma. (1948), treatises on workers’ compensation which preceded the 1968 publication of 29 Massachusetts Practice, observed that exclusions to recovery such as those posed by the “level floor” exception are “judicial legislation” and “legal gymnastics” that defeat the humane purposes of the act. S.B. Horovitz, “The Litigious Phrase: `Arising out of’ Employment” 4 NACCA Law Journal 19, 68 (1949). He detailed how a majority of modern cases in other jurisdictions allow recovery where contact with a hard floor causes injury. Id. “The employment requires the worker to use the floor, and the floor, not the idiopathic disease,” causes the traumatic incapacity. Id.