“And be a simple kind of man . . .” Seizure Cases in the Modern World

Moss Hospitality Business Services, Inc. and Prime Healthcare Service/Safety Nat’l Cas. Corp. 2021 WL 2391411 (Cal.W.C.A.B.) exhume somewhat of a bitter pill from Employers Mutual Liability Insurance Co. of Wisconsin v. IAC (Gideon), (1953) 41 Cal.2d 676 [18 Cal.Comp.Cases 286] in which the California Supreme Court held that an applicant’s fall and resulting injury, though caused by his nonindustrial seizure disorder, was compensable. Some lessons you can take from Moss and Gideon are that an on-the-job injury, although caused by an idiopathic seizure of the employee, will be found to arise out of and in the course of employment and that the employment need not pose a unique danger to the worker in order for that injury to be compensable.

In Moss, the applicant was employed as a medical biller/coder/billing specialist. She alleged she sustained an injury arising out of and in the course of her employment to her left shoulder, left arm, and neck. Specifically, she claimed to have fallen at work due to a seizure. She did not claim the underlying seizure arose out of or in the course of her employment. The applicant had medical reports from various treating physicians, plus the ambulance records from when she was transported to Hospital after her fall. At the request of the WCJ, the parties had the applicant examined by a doctor to address the AOE/COE issue. The applicant had taken daily prescribed pain medication for years and had taken Norco during her thirty (30) minute lunch break before the fall. Likely as a result of this fact, the defendant relied on the affirmative defenses pursuant to Labor Code (LC) Section 3600 (a) (4) and (5) that the applicant’s injury was caused by intoxication or unlawful use of a controlled substance and that the injury was intentionally self-inflicted. However, no toxicology report was offered into evidence and it was found that the defendant did not meet its burdens of proof for those affirmative defenses. The defense did not challenge that outcome on reconsideration.

The WCJ viewed the preponderance of the evidence, including the description of the event by the witnesses, the applicant, and the paramedics; the diagnosis by the emergency room physician; and the reports of subsequent treating and evaluating physicians – as supporting a finding that the applicant sustained a seizure at work on the date in question. The WCJ underscored Gideon’s ruling that while an idiopathic seizure could have occurred anywhere, “the fact it occurred at work made it industrial.” She further rejected the defendant’s contention that the applicant’s work needs to have posed a unique danger to support recovery for the dislocated shoulder. She did not cite any other cases in her opinion because the facts were so consistent with those of Gideon.

The WCAB Panel affirmed the WCJ’s findings and order and expanded on the WCJ’s reliance on Gideon, which is discussed below.

In Gideon, the applicant was on the job, returning from the employer’s dispensary where he had obtained aspirin to relieve a headache, when he had an idiopathic seizure, which caused him to fall and strike his head on the concrete floor, causing injuries to his head for which compensation was awarded. Gideon, supra, at 678. There was no dispute the incident occurred in the course of employment. Id. The only question was whether it arose out of his employment. Id. On petition for writ of review, the Supreme Court affirmed the commission’s finding that the injury arose out of the employment. In so doing, the Supreme Court broke with those cases that had denied compensation where the employee was injured by falling to the ground or floor as distinguished from falling from ladders, or into holes, or against objects other than the floor. Id. at 679. The Supreme Court reasoned as follows:

“The cases denying compensation do so on the theory that a floor presents no risk or hazard that is not encountered everywhere, and that such risks and perils as they do present are only those which confront all members of the public. The cases allowing compensation do so on the theory that the injury need not be the product of a peril or hazard which exposes the employee to extraordinary risk, in order to be compensable, and that the hazard presented by the floor renders the injury compensable, not because it should have been foreseen or expected, but because it is a hazard that is peculiar to the employment, and is one that is incidental to and grows out of the employment.

It is our belief, and we so hold, that the attempted distinction between cases where the employee falls from a ladder, or into a hole, or against some object, and those where the employee falls to the ground or floor, is without a reasonable basis. There are cases to the contrary but the modern trend is definitely in accordance with the view above expressed. Id.”

In Gideon, the Supreme Court delineated several points that were overlooked by any contrary holdings. First, it noted that although an injury must arise out of employment to be compensable, the injury need not be of the kind anticipated by the employer nor peculiar to the employment in the sense that it could not have occurred elsewhere. Id. Second, it found it sufficient if the employment is a contributory cause of the injury; it need not be the sole cause. Id. at 680. Third, it observed that where an employee is required to be on the streets in the course of his employment and the employee falls to the street, the resulting injury arises out of employment. Id. Finally, the Supreme Court asserted that where there are reasonable doubts as to whether an injury is compensable, they are to be resolved in favor of the employee. Id.

Ultimately, the Supreme Court also rejected the argument that the injury was not compensable because the employee’s idiopathic condition could have caused him to fall and suffer injury at home, while tending to his private affairs. “The fact remains that he injured himself while at work, on the employer’s premises, the injury being the striking of his head against the floor, a condition incident to employment…It would not be doubted that if an employee fell to the ground or floor in the course of his employment and was injured, the injury would be compensable whether the cause of the fall was a slippery or defective floor or was due to nothing more than his innate awkwardness or even carelessness.” Id.

The outcome in Moss and its reliance on Gideon are not just a recent phenomenon. Gideon has been a focal point in several other cases finding compensable injury where employees suffered an injury on the job as a result of an idiopathic seizure. See Reyes v. Hart Plastering (2005) 70 CCC 223 (significant panel decision); Harris Ranch Inn & Restaurant v. WCAB (Orrala) (2011) 77 CCC 94 (writ denied); and Low v. Federal Express, 2014 Cal. Wrk. Comp. P.D. LEXIS 27. The importance of these cases may well arise when we receive more cases caused by employment injuries at home.

By Rachel Fortner, Esq., Associate Attorney, Santa Rosa Office, September 2021

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