Are All Slip and Falls Moving Towards a Finding of A Compensable Claim?

Is the Full Commission moving towards deeming every slip and fall in Virginia compensable? While I hope not as that would be contrary to existing law, the recent decision in Santi v. Loudon County Public Schools, JCN No. VA00001703395 (March 1, 2003) causes this author to pause and wonder if that could be the trend that we are moving towards.

In Santi the Full Commission in a split 2-1 Opinion reversed the finding of the Deputy Commissioner that the claimant had not proven a compensable injury arising out of the employment and remanded to the Deputy Commissioner to address remaining defenses asserted by employer.

In Santi the claimant had alleged in her deposition that she tripped. However, at the hearing she alleged that she had slipped on a vinyl composite tile floor as soon as she turned into the hallway while on her way to the restroom. The claimant alleged that her right foot slipped in front of her and that she then proceeded to slide a distance of at least 15 feet striking a window at the end of the hallway. She did not see anything wet or dropped on the floor. Before the claimant’s fall, the floor had last been waxed over two years earlier. In her recorded statement the claimant described slipping on what felt like “wax on the floor or some kind of thing.” Photographs of the hallway showed two drinking fountains in the hallway. Commissioner Marshall writing for the Majority noted, “[we] reasonably [sic] the claimant did not know where she was when her right foot slipped…On this record, the discrepancy regarding precisely where the claimant fell does not change the compensability of her accident and injuries.”

The Full Commission held, “..we infer the claimant slipped on an unknown substance on the floor of the hallway. A condition of her employment caused her to slip and fall. Her injury arose out of her employment.”

Commissioner Newman authored a Concurring Opinion. Commissioner Newman wrote, “[w]hat the Commission ultimately deems “fact” may be nothing more than an allegation, the truth of which is suggested by the greater weight of the evidence.” Commissioner Newman framed his evaluation of establishing injury “arising out of” the employment as follows:

This inquiry dictates a focus on a singular point of evidence, whether the claimant fell because the floor was slick. If by greater weight of the evidence, the claimant established the truth of this sole factual inquiry, then she satisfied all the statutory criteria necessary for entitlement to the benefits warranted by her compensable injuries.

Commissioner Newman was critical of the employer’s failure to produce a witness that may have examined the floor after the fall stating, “…if anyone on behalf of the employer conducted such an exam, they aren’t talking.”

Unlike the Majority, Commissioner Newman draws a specific inference that water caused the claimant to slip. The Majority referred only to an “unknown substance” (not water, wax or some other substance) as causing the claimant to slip.  Commissioner Newman identifies two water fountains, two bathrooms and a janitor’s closet as potential sources of such water.

Commissioner Newman very pointedly criticizes Commissioner Rapaport’s dissent, stating, “…the dissent has fallen victim to a common human error of reasoning, he’s in love with his theory of how falls transpire. Stated otherwise, when theory conflicts with reality, hold the theory sacrosanct and question reality.” Commissioner Newman further explaining his criticism indicates in a footnote “crop circles” as an example of what he identifies as “[t]he common human error of falling in love with one’s theory is even more common on the folly end of the spectrum of human reason.” In another footnote Commissioner Newman criticized “the dissent’s error” analogizing it to the fictional planet, Planet Vulcan, that pre-20th century astronomers thought existed.

Commissioner Rapaport dissented. Commissioner Rapaport succinctly states, [t]here is simply no explanation, plausible or otherwise to explain the accident as the claimant alleges occurred.” Commissioner Rapaport quite properly notes (in this author’s opinion) that “the majority does not explain what inference they are making to form their basis for causation.” Commissioner Rapaport noted that there was no evidence of any water or moisture on the floor or defects in the fountains. Further, Commissioner Rapport noted that while the claimant testified she may have slipped on wax, the evidence in the case was that the floors had not been recently waxed. Commissioner Rapaport stated, “[I]ndeed, case law has established that an injured worker may be unable to identity the precise cause of her fall and the accident remain compensable under the Virginia Workers’ Compensation Act. Yet, here, the majority is creating causation from pure speculation and surmise.” Commissioner Rapaport also notes that photographs revealed that claimant’s theory of sliding of one foot was easily a distance of twenty feet.

This author shares the concerns addressed by Commissioner Rapaport in his dissent. While it has been the law some time that the claimant need not identify the precise substance causing the fall, the claimant still must prove by a preponderance of the evidence that an actual substance or defect caused the slip and fall. Otherwise, as the dissent properly noted, this requires pure speculation by the Commission.  While the law permits that the Commission may make reasonable inferences, none were actually specifically made here and none could be reasonably made. The description of this alleged incident (sliding some 20 feet) coupled with the lack of evidence of any substance on the floor (wax, water or otherwise) leads me to agree with both the Deputy Commissioner (that could observe the demeanor of the claimant) and Commissioner Rapaport that the claimant simply did not meet her burden of proof.

While this is just one opinion from the Commission among many it speaks to the mindset of the Full Commission as a whole. Should this trend continue, we may see many more cases needing to move to the Court of Appeals or the Supreme Court to impose a return to the balance intended under the Virginia Workers’ Compensation Act. While the concept of liberal construction remains alive so does the requirement that the moving party (here it was the claimant) must meet her burden of proof of proving her case by a preponderance of the evidence. Placing the burden of proof and production on the moving party  has been an essential foundation of our system from its inception.

We will closely watch as this matter heads back to the Deputy Commissioner and hopefully to the Court of Appeals for Virginia.

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