November 20, 2009 08-97212

OPINION ENTERED: November 20, 2009

CLAIM NO. 08-97212

MARTINREA METAL INDUSTRIES, INC.

(correctly known as MARTINREA PETITIONER/

HOPKINSVILLE LLC) CROSS RESPONDENT

VS. APPEAL FROM HON. RICHARD M. JOINER,

ADMINISTRATIVE LAW JUDGE

ESTATE OF DANNY FREEMAN, DECEASED,

TERRI FREEMAN, AS WIDOW AND AS

ADMINISTRATRIX OF THE ESTATE

AND AS GUARDIAN OF DANIEL MCCADE RESPONDENT/

FREEMAN, A MINOR CROSS PETITIONER

and HON. RICHARD M. JOINER,

ADMINISTRATIVE LAW JUDGE RESPONDENT

OPINION AFFIRMING

* * * * * *

BEFORE: GARDNER, Chairman, COWDEN and STIVERS, Members.

COWDEN, Member. Martinrea Metal Industries, Inc. (correctly known as Martinrea Hopkinsville LLC), appeals from the decision of Hon. Richard M. Joiner, Administrative Law Judge (“ALJ”) finding Danny Freeman died as a result of a work-related injury. Martinrea argues the ALJ erred by applying the presumption of work-relatedness provided in KRS 342.680 and in applying the doctrine of comfort and convenience or the personal comfort doctrine. Martinrea also argues the finding of the occurrence of a workplace fall is not supported by substantial evidence. The respondent/cross petitioner seek sanctions alleging a frivolous appeal to this Board. Martinrea counters by filing a motion to dismiss the cross appeal based on timeliness.

Freeman was employed by Martinrea as a maintenance technician. Freeman was found dead in a locked stall in the men’s room at Martinrea on November 18, 2007. Freeman’s wife, Terri, filed the claim as administrator of Danny Freeman’s estate, as Freeman’s widow and as natural guardian of Daniel McCade Freeman, Danny Freeman’s son.

Terri Freeman testified by deposition and at the hearing. She testified regarding Freeman’s past medical care. She stated Freeman had been seen in September 2007 by Dr. Kapadia, his cardiologist. She indicated Freeman had been placed on a lesser dosage of medication and was doing very well.

Mrs. Freeman stated she received a call on November 18, 2007 from Bart Hulsmeyer at Martinrea. Mr. Hulsmeyer reported Freeman had been in an accident at work and she needed to come to the hospital. Mr. Hulsmeyer and Dorris Lamb, the Christian County Coroner, were there when she arrived. Mrs. Freeman stated she was so shocked when they told her that her husband had died that she did not remember what they told her that day.

Mrs. Freeman did not believe her husband had a heart attack because he had just gone to the doctor and had a stress test. The doctor had told them he was healthier than he was the year before. Mrs. Freeman stated she did not believe he had a heart attack. She learned from Dr. Schluckebier that her husband had a fractured skull and died of blunt force trauma to the head. The doctor believed Freeman had fallen.

Mrs. Freeman stated some of her husband’s co-workers came to the house and brought her husband’s belongings from his locker. A copy of an incident report indicating her husband had fallen while on the job a year earlier was with the items in her husband’s locker when it was cleaned out. She was aware of her husband falling at work all the time because the floors were so slick. He always told her he had to learn how to stand up in it.

Dorris Lamb, the coroner of Christian County, testified by deposition. He stated he had held the position for 22 years. Lamb is a funeral director and embalmer. He received training in his position as a coroner but he is not a doctor. Lamb testified he was called to Martinrea when Freeman’s body was found. He arrived at the plant and was met by Kurt Spencer, the general manager, and Bart Hulsmeyer, the engineering maintenance supervisor. They went to the men’s room where additional employees were present. He stated Richard Johnson was the one who found Freeman. The door to the stall was locked and had to be forced open to gain access to administer CPR. Lamb stated the medics had already done some CPR when he entered the restroom. Freeman was lying on the floor and had some nose bleed. Freeman was cyanotic, had a dark blue discoloration, and his pants were down around his knees. Upon examination, Lamb found a bump on the back of Freeman’s head from blunt force. There was blood coming out of his nose and a white frothy purge. Lamb stated the purge usually indicated either some respiratory problem, usually when CPR has been administered trying to revive sometime or sometimes in congestive heart failure with cardiac death. Lamb was informed Freeman was found lying back over the toilet with his head behind him toward the handicap bar between the toilet and the wall in the stall. Lamb found the contusion on the back of Freeman’s head when he did his first examination. He stated people having health issues, congestion, and even heart issues, believe if they go to the bathroom they will get some relief.

Lamb advised Martinrea to contact OSHA and Freeman’s body was taken to the hospital emergency room. Lamb talked with a health official and with Freeman’s wife when she got to the hospital. She gave Lamb some information about her husband’s health issues.

Lamb theorized Freeman got up off the toilet and fell back and either hit the wall or the handicap hand bar. The contusion on the back of his head was not lacerated enough to determine what the back of his head hit. Lamb did notice the bathroom floor was wet. He looked at the soles of Freeman’s boots and noted there was oil base on them which would most likely make them slick. Lamb stated he was most concerned with the telltale signs of Freeman being blue from the nipple line up which historically showed up in cardiac death. He wanted to find out if his medical condition caused him to fall and receive the contusion to the back of his head that ultimately caused his death. Lamb indicated Freeman’s wife requested an autopsy. He noted the medical examiner found Freeman died from an accidental cerebral bleed which probably occurred in the bathroom when he hit his head. Lamb stated he believed Freeman’s death was accidental with contributing factors. He stated it was apparent Freeman’s death was accidental but with a natural occurrence in regard to his heart causing the fall or the accident.

Freddy Smith, a toolmaker at Martinrea, testified by deposition on January 6, 2009. He stated he worked with Freeman on November 18, 2007 between 1:00 and 2:00 a.m. Freeman seemed to be fine at that time and was laughing and acting normal. Smith recalled going to lunch around 3:00 a.m. He went into the restroom to wash his hands and saw Freeman’s radio lying on the counter by the sink in the restroom. He did not talk to or say anything to Freeman while he was in the restroom. He did glance over toward the stall and saw the door was closed. He thought he saw the side of Freeman’s foot like he was standing in front of the toilet. He also heard movement. Smith washed his hands and went out to eat his lunch. After eating lunch, he went outside and smoked a cigarette and went back to work. A few minutes later, he needed to go to the restroom. He went back in and saw the radio was still lying there and the door to the stall was still closed. He thought it was odd that Freeman was still in there. Smith stated it had been about 30 to 40 minutes since he had gone in to wash his hands. As he was walking out he met two other workers, Richard Johnson and Brian Fuller, who asked him if Freeman was still in the restroom. Smith told them Freeman was still in the stall and they stated they needed to check on him because something might be wrong. Johnson checked on Freeman and stated Freeman was not responding. He had peeked through the crack of the stall and could see Freeman was slumped over. They called Otis Boor and then called 911. When the paramedics arrived, Smith showed them to the restroom but did not go inside. Smith testified he did not notice blood anywhere in the restroom and did not notice any water on the floor. He stated he did not notice anything out of the ordinary, but he was not looking for anything.

Otis Boor testified by deposition. Boor was not Freeman’s direct supervisor, but indicated they both worked in the press bay department. On November 18, 2007, they were doing preventative maintenance on the 2700 ton press. Boor had seen Freeman at the beginning of the shift and had spoken to him but did not see him again until he was called to the restroom. When Boor got to the restroom, Johnson stated Freeman had been in there a long time and would not answer. Johnson and Randy Hill, a first aide responder, jimmied the stall door open to see if they could help. When they opened the door, Freeman was still partially seated on a diagonal on the toilet. His head was back and up against the wall and Boor could not see his face. He asked Hill to see if there was a pulse and then went to get the responder’s bag. Freeman was not responding, so they placed him on the floor. He was not breathing and had no pulse. CPR was started. Boor could not remember seeing a lot of blood indicating there was maybe just a little at the corner of Freeman’s mouth. He did not remember water being on the floor nor did he remember any scuff marks on the floor. Boor called 911 and called the plant manager.

Ronald Friedman, a maintenance technician, worked with Freeman for about two or three hours on November 18, 2007. Friedman was covering the hydroform line and was assisting Freeman with a motor change on the 2700 press as needed. He did not see Freeman having any problems. He stated they cut up and joked around like they usually would. Friedman went to operate a fork truck moving parts to help a production person. He was doing that work until Johnson notified him that he was concerned. Johnson thought something was not right. They headed to the restroom and found a radio, some tools and a pair of safety glasses on the sink counter. Friedman heard heavy breathing like someone with a stopped up nose. They did not bother Freeman but stepped outside the restroom and talked for a while. Friedman needed to get back to move more parts, but told Johnson to come and get him again if he did not see Freeman come out in a little bit. Friedman was not sure how much time passed before Johnson came back. Johnson told him Freeman had not come out yet. They went to the restroom and heard what sounded like breathing. Friedman and Johnson called out to Freeman and there was no answer. They called the group leader, Otis Boor, and told him about the situation. He told them to open the door. By that time, Randy Hill had come into the restroom and they forced the door open. Friedman stated Freeman was sitting on the toilet but his head and upper body were positioned in the corner of the stall. His skin was pale and his face was blue. Friedman and Hill maneuvered Freeman to an upright position. When they saw he was not breathing, they placed him on the floor so they could start CPR. Friedman did not remember the floor being wet when they placed Freeman on it. The paramedics arrived and took over CPR. Shortly after that, they indicated he could not be resuscitated.

Bart Hulsmeyer, the engineering and maintenance manager, testified by deposition. He described how the presses operated and stated any stamping operation involved the use of lubrication. He stated the production group maintains the press areas and the floors surrounding the presses. The only time his department would be responsible for cleaning around the presses would be when they do work on top of the presses for the crown area. He stated they had a contractor and maintenance personnel to perform monthly vibration checks on the press motors and they were responsible for any cleanup after the checks. He stated Martinrea had shutdowns semi-annually. At that time, someone from maintenance or production would do a deep cleaning on the tops of the presses.

Hulsmeyer was not at work during the early morning hours of November 18, 2007. He stated excessive vibration on the main motor of the transfer press had been measured. The motor needed a bearing so Freeman and a maintenance crew were changing the motor. Hulsmeyer indicated he was contacted by Tony Melendez and advised of the situation at the plant. Melendez called him a second time before Hulsmeyer arrived at the plant. Melendez told Hulsmeyer paramedics had arrived and Freeman had expired. When Hulsmeyer arrived, the coroner was inspecting the body. Hulsmeyer did not notice any blood on Freeman, in the restroom, or on the floor. Hulsmeyer indicated the bathroom seemed to be fairly clean. Hulsmeyer contacted Mrs. Freeman, told her there had been an accident at the plant and asked her to meet him at the hospital. At the hospital, he explained Freeman had a heart attack and did not make it. He stated the coroner told him Freeman died from what he called “potty death”, a typical heart attack situation.

Tony Melendez, Freeman’s direct supervisor, testified by deposition. On November 18, 2007, Melendez, Freeman, and Brian Fuller, a maintenance apprentice, were working on the 2700 ton press. At some point, Freeman went down off the top of the press and asked Johnson to measure for a part. After Freeman went down off the press, Melendez and Fuller did wiring and electrical work. Melendez did not recall Freeman coming back onto the press anymore that day. Melendez stated quite a while later when he was in the press bay area and Fuller ran over stating Freeman had been found in the restroom unconscious and unresponsive. Melendez went to the restroom and took Freeman’s left hand to search for a pulse. He stated there was no pulse or movement. Freeman’s face was pale and they had placed a respirator mask on him. He noticed a slight trace of blood along the edge of Freeman’s left eyebrow. Melendez did not notice blood anywhere else and did not notice scuff marks, skid marks, or any markings that might have been left by a boot on the floor. He left the restroom when the medics arrived and stayed around outside the restroom for awhile. He then went to the lobby and called Hulsmeyer and informed him of the situation.

The autopsy report of Dr. Deirdre Schluckebier states that, in her opinion, Freeman’s death was attributed to blunt force injury to the head. She noted a significant co-existing condition was ischemic cardiovascular disease. Dr. Schluckebier stated the injuries to the head were most consistent with those sustained in a fall with impact to the back of the head. Dr. Schluckebier noted no fall was witnessed and there was no evidence of inflicted injury either at the time of autopsy or obtained during the death investigation. Thus, she stated the manner of death was considered an accident.

Dr. George R. Nichols, II, performed an independent cause of death determination. He reviewed the coroner’s records, medical examiner’s records, including autopsy report and the OSHA investigation file. He also reviewed depositions of Lamb, Boor, Melendez, Friedman, Hulsmeyer and Smith. He reviewed the report of Dr. Thomas W. Young and medical records of Deepak N. Kapadia, the ambulance run report and photos of the scene. He noted the autopsy report concluded the death was due to traumatic head injuries. Dr. Nichols noted no new or acute cardiac abnormality was detected in the autopsy. Dr. Nichols noted another physician expert had reviewed the same data and concluded Freeman had a cardiac death. Dr. Nichols stated in his opinion, this was erroneous and scientifically unfounded. He noted the mechanism of injury was as the result of a fall. Dr. Nichols stated that, in his experience, he had never seen this exact type of fatal injury occur as the result of a fall from less than standing height. He stated the most probable scenario of fatal injury was stated by Coroner Lamb who said, “Stood up, fell backwards and cracked his head.” Dr. Nichols stated the detected internal and external injuries would indeed be produced in that manner. Dr. Nichols stated he had read discussions of cardiac “event” producing the fall. He stated that could not be absolutely eliminated but he had significant reasons to doubt that such an event actually occurred. First, he noted no new cardiac abnormality existed to initiate such an event. Second, he noted the opinion offered by Dr. Kapadia who attended Freeman for years and opined the death was not due to underlying cardiac condition. Dr. Nichols stated his opinion was validated by investigative means other than those practiced by pathologists. Third, Dr. Nichols noted that if somehow the heart stopped beating causing the fall, it somehow returned to beating after the impact.

Medical records of Dr. Deepak Kapadia dated March 18, 2003 through December 9, 2008 were introduced. Freeman was seen on March 18, 2003 for follow-up evaluation and management of atherosclerotic coronary artery disease status post PTCA and stenting of the left anterior descendering artery. Freeman had not had any symptoms of severe substernal chest pain and did not have arterial hypertension. He was doing well overall from a cardiac standpoint. Freeman was seen with symptoms of chest pain on March 30, 2006. A soft systolic murmur was noted and Freeman was experiencing chest pain that was not suggestive of angina. It was noted his hypertension was well controlled. On January 30, 2007 Freeman was seen with complaints of chest pain off and on between the shoulders. The pain was not of similar quality as he had prior to the angioplasty. He had palpitations and headaches. Freeman was having chest pain suggestive of possible angina but not diagnostic. It was recommended that he have a stress test to rule out any stress induced ischemia. A March 13, 2007 stress test was negative. On September 25, 2007, Freeman was seen for a follow-up evaluation. He had no cardiac complaints such as chest pain, shortness of breath or palpitations. Dr. Kapadia noted Freeman had no physical limitations secondary to his cardiac illness. Freeman stated he remained quite active.

In a December 9, 2008 letter to plaintiff’s counsel, Dr. Kapadia noted Freeman had been under his care since February 12, 2003. He noted Freeman had symptoms of chest pain on initial evaluation in 2003 and had undergone percutaneous transluminal coronary angioplasty and stenting of the proximal left anterior descending artery. He noted Freeman had complied with his medication, diet, and lifestyle modification. Dr. Kapadia stated he reviewed the autopsy report and it was his clinical judgment the cause of Freeman’s demise was not due to his underlying cardiac condition. He noted Freeman had an echocardiogram and a stress test which revealed preserved left ventricular systolic function with no ischemic changes on treadmill testing.

Martinrea submitted the January 6, 2009 medical report of Dr. Thomas Young. Dr. Young reviewed documents pertaining to Freeman’s death including the autopsy report, coroner’s report, death certificate, medical records, incident report and photographs of the work site and restroom. He stated the cause of death was a closed head injury following the loss of consciousness and a fall from the toilet. He opined Freeman suddenly lost consciousness while using the toilet. This resulted in a seizure and/or a fall that led to an immediately devastating and fatal head injury. He stated the abrasion in the skin of the occipital scalp, the underlying scalp hematoma, and the underlying linear skull fracture were evidence of a forceful impact to the back of the head. A fracture or crack crossing a dural sinus will cause blood to leak into the subdural space. Additionally, the portion of the brain beneath the fracture will frequently have bleeding beneath the covering membranes and areas of hemorrhage in the brain tissue itself. Dr. Young explained that, when a moving head strikes a stationary surface, injuries may occur in areas in the opposite side of the head. Contusions or bruises indicated severe motion of the brain inside the calvarium. He stated the brain suddenly moves toward and decelerates into the back of the head upon forceful impact. He indicated severe acceleration/deceleration injuries of the brain of this extent and nature are devastating leading to at least an immediate traumatic coma and, at most, immediate death. Dr. Young stated a scenario where a person gets up and walks around after receiving this kind of head injury does not make sense and is not consistent with the findings.

Dr. Young noted Freeman had pre-existing heart disease and an enlarged heart. The most common cause of an abnormally large heart is hypertension and Freeman had a history of hypertension. Dr. Young further noted Freeman had a stent in his left anterior descending coronary artery and stents are used to treat coronary atherosclerosis. Dr. Young noted a pre-existing heart condition with these characteristics can cause the heart to suddenly go into an abnormal heart rhythm. The abnormal heart rhythm can cause a lack of oxygen-filled blood in the brain. This can lead to a loss of consciousness and even sudden cardiac death. Dr. Young noted a vasovagal reflex brought about by defecation can cause an abnormal heart rhythm in a diseased heart. The reflex can cause the heart to slow down and the blood vessels to dilate. Dr. Young stated in a person with pre-existing heart disease, a vasovagal reflex can cause the heart to go into an abnormal rhythm that can lead to loss of consciousness and even sudden cardiac death. The sudden loss of consciousness can lead to severe head injury. He noted frequently a loss of consciousness brought about by a lack of circulating blood in the brain can manifest itself as a seizure. A quick and forceful contraction of the neck and back extensor muscles during a seizure could have forcefully propelled the back of the subject’s head into the wall or floor near where the decedent was found. He further noted the weight of the backward falling body and head can provide sufficient momentum for a forceful impact of the head against the floor. He noted a person who is conscious typically guards himself against head injury from an accidental slip by using his arms and body. Dr. Young felt the nature of this severe head injury was consistent with a sudden loss of consciousness that would prevent him from using guarding maneuvers.

Although Freeman’s treadmill test in March 2007 showed no evidence of ischemia, Dr. Young stated this did not allow Dr. Kapadia to conclude with reasonable medical certainty that an underlying cardiac condition could not have led to Freeman’s death. He stated EKGs and cardiac stress or treadmill tests are poor predictors for the potential for sudden cardiac death. These tests reveal evidence of ischemia while exercising; however, Freeman was not exercising at the time of his death. Dr. Young stated a cardiac stress test does not test the electrical instability of an enlarged heart, particularly while a person is having a vasovagal reflex.

Dr. Young stated a slip and fall scenario was not consistent with or supported by the evidence. He noted there was no autopsy or witness evidence to indicate Freeman slipped and fell in an accidental fashion prior to getting up and later sitting on the toilet. Dr. Young stated the head injury would have been immediately incapacitating and devastating, not allowing the decedent to get up and later go to the bathroom. Dr. Young stated the minor nature of the external scalp injury was consistent with the decedent coming into forceful impact with a broad smooth surface. There was no patterned injury to indicate an impact with a particular projecting toilet fixture or any other projecting object. Dr. Young noted the blue tint in Freeman’s face, the bloody fluid from the nose, and the conjunctival petechiae could all be explained not only by the effect of gravity on the body in a semi-inverted position, but also by the sudden loss of cardiac function and subsequent resuscitative attempt. Both situations were applicable to the case and could explain these findings. Dr. Young stated the position of Freeman’s body as found at the scene was consistent with the subject using the toilet prior to his collapse. He stated the position of the body was consistent with a fall backward from a sitting position. He noted no witnesses saw Freeman slip and fall and they did not mention any evidence in the form of skidmarks or stains to indicate such a fall.

OSHA began an investigation on December 4, 2007. The investigator found the floor surrounding the press to be slippery from lubricant that had dripped from the dies and die bolsters during die changes. Rungs on the ladder were also coated with the lubricant. There was no anti-skid protection visible on the rungs. Workers in this area walked through the lubricant and tracked it wherever they walked. During inspection of the restroom where Freeman was found, statements from management and employees related a urinal in the restroom would overflow due to a malfunctioning automatic flush valve. This caused water on the floor at the time Freeman was discovered. Employees indicated varying amounts of water on the floor. One employee recalled seeing quite a bit of water while another recalled the floor being dry. An additional visit to the employer on March 5 and 6, 2008 involved further employee interviews and inspection of the press area. Anti-skid tape had been applied to the rungs of the ladders. The floor around the press was slick in many places. In the Tooling Restroom, a visible sheen of oil had been tracked in and was visible on the ceramic tile floor. It was observed the soles of the safety shoes of many employees were coated and caked with lubricant residue.

The investigation resulted in a serious violation citation related for not maintaining the floor in the press department in a clean and, so far as possible, dry condition. Lubricant was noted to have dripped from the dies and bolsters and collected on the floor creating a slip hazard. A second serious violation was issued pertaining to the fixed ladders not being maintained in a safe condition in that the rungs of the ladders were coated with lubricant that had been tracked onto the rungs from the floor.

After reviewing the evidence, the ALJ made the following findings:

Here, the employee was found dead in the men's room at his place of employment. I accept the medical examiner's determination as to cause of death. Dr. Schluckebier, the medical examiner determined that the cause of death was blunt force injury to the head. These injuries are most consistent with those sustained in a fall with impact to the back of the head. This was determined to be an accidental death. There are several principles of Kentucky workers compensation law which operate to make this a compensable claim. First, Mr. Freeman was found in the men's room of his place of employment. The doctrine of comfort and convenience applies. This is also known as the personal comfort doctrine. In Meredith V. Jefferson County Property Valuation Administrator, Ky., 19 S.W.3d 106, [sic] the court stated:

in Kentucky, application of the comfort and convenience doctrine has been based upon the belief that where an injury was caused by a danger inherent in the workplace or resulted from a risk peculiar to or increased by the employment, the fact that the injury occurred because the worker was ministering to his own comfort and convenience while at work should not render the resulting disability noncompensable. Where the worker has proved that a nexus existed between some danger or risk associated with the employment and the injury which has caused his occupational disability, compensation benefits have been allowed.

Id at 109.

Blue Diamond Coal Co. V. Walters, KY., 287 S.W.2d 921 (1956), is a case cited with approval by both the majority opinion and the dissent in Meredith, supra. Therein the Court quoted from an earlier decision in Phil Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S.W. 152, at page 159, (1918):

Injuries may arise out of the employment, although sustained while performing acts essential to the personal comfort and convenience of the employé, as where the employé is injured while going to or from a toilet, or while preparing to begin or leave off work, or in satisfying his thirst, or in obtaining shelter from a storm.

The fact that Mr. Freeman died of blunt force trauma in the men's room at his place of work during working hours is sufficient to invoke the presumption contained in KRS 342.680. This statute provides:

342.680 Presumptions in the case of death or of physical or mental inability to testify. In any claim for compensation, where the employee has been killed, or is physically or mentally unable to testify as confirmed by competent medical evidence and where there is unrebutted prima facie evidence that indicates that the injury was work related, it shall be presumed, in the absence of substantial evidence to the contrary, that the injury was work related, that sufficient notice of the injury has been given, and that the injury or death was not proximately caused by the employee's intoxication or by his willful intention to injure or kill himself or another.

Even if the report of Dr. Young is accepted in its entirety and one were to conclude that Mr. Freeman sustained his fatal head injury while defecating this would not remove the case from compensability under the positional risk doctrine. An unexplained workplace fall is presumed to arise out of the employment unless the presumption is rebutted. Workman v. Wesley Manor Methodist Home, Ky. 462 S.W.2d 898 (1971). Even an idiopathic fall may be compensable if work placed the individual in a position to increase its dangerous effects. Indian Leasing Company v. Turbyfill, Ky. App., 577 S.W.2d 24 (1978).

I believe that the plaintiffs are entitled to a presumption under the facts of this case that the death of Mr. Freeman was work-related and I find that it has not been rebutted. Therefore, the death of Danny Freeman is compensable.

The ALJ determined a blunt force trauma to the back of Freeman’s head was the cause of death. With regard to the issue of the employer’s failure to comply with a specific statute or administrative regulation, the ALJ stated that even if he were satisfied the OSHA violations did occur on the date of the Freeman’s death, he would not conclude the OSHA violations were a causative factor in his death. The ALJ stated the plaintiffs were entitled to a generous presumption to assist in establishing a work-related injury but could not use that same presumption to establish a safety violation. The ALJ stated he remained unpersuaded a safety violation contributed to Freeman’s death.

Martinrea filed a petition for reconsideration arguing there was no evidence of the occurrence of a fall at Martinrea on the night of Freeman’s death. Martinrea argued the record did not include facts supporting a finding of an unexplained workplace fall. Martinrea additionally requested reconsideration of the ALJ’s application of the doctrine of comfort and convenience arguing there was no evidence of a danger or risk associated with the restroom in question. Martinrea requested reconsideration of the ALJ’s finding that the presumption provided in KRS 342.680 was not rebutted. By order dated June 18, 2009, the ALJ overruled the petition for reconsideration stating it was a re-argument of the case seeking to change the final result.

On appeal, Martinrea argues the ALJ erred in applying the presumption provided in KRS 342.680. Martinrea argues that, for the presumption to apply, there must be a finding of unrebutted prima facie evidence that indicates that the injury was work-related. Martinrea disputes the existence of prima facie evidence of a work-related injury and argues that, assuming such evidence did exist, it was rebutted. Martinrea states the ALJ’s decision hinged on the finding of an unexplained workplace fall. Martinrea states no substantial evidence exists to support a finding of a fall. Martinrea notes it presented testimony from Hulsmeyer, Friedman, Melendez, Boor and Smith that there was no evidence Freeman fell while at work on November 18, 2007. It further notes Dr. Young, a forensic pathologist, opined the head injury was consistent with a loss of consciousness and not consistent with a slip and fall while conscious. Martinrea notes that even when an employee dies on the defendant/employer’s premises, the burden is on those seeking compensation to establish the death was connected to the individual’s work to be compensable. Martinrea contends the ALJ’s application of the presumption in KRS 342.680 was based solely on the death occurring on the defendant/employer’s premises and was thus in error.

Martinrea argues application of the doctrine of comfort and convenience or personal comfort doctrine was error. Martinrea notes the doctrine requires a finding of the injury being caused by a danger inherent in the workplace or resulting from a risk peculiar to or increased by the employment. Martinrea argues the record is devoid of evidence establishing a nexus between a danger or risk associated with Freeman’s employment while in the restroom and the blunt force trauma to the back of his head. Martinrea argues the ALJ did not cite or make reference to facts sufficient to determine the blunt force trauma to the back of Freeman’s head was caused by a danger inherent in the workplace or resulted from a risk peculiar to or increased by the employment. Martinrea contends the complete lack of evidence of a connection between the blunt force trauma and some danger or risk associated with the employment does not allow for the application of the doctrine and thus the ALJ’s application of the doctrine was in error.

Martinrea argues the finding of a workplace fall is not supported by substantial evidence. It states the finding of a fall was essential to the ALJ’s ultimate conclusion and most specifically was crucial to the application of the principle of the “positional risk” doctrine. Martinrea contends the ALJ decided a fall made the claim compensable even if the fall was an unexplained workplace fall or an idiopathic fall. Martinrea argues no substantial evidence supports either finding. There is no dispute Freeman sustained a blunt force trauma to the back of his head and died as a result of that trauma. Martinrea states it appears the ALJ based his finding of a fall on the report of Dr. Schluckebier who concluded the injuries to the head were most consistent with those sustained in a fall with impact to the back of the head. Martinrea notes no fall was witnessed and no evidence exists of an inflicted injury. Martinrea notes Dr. Schluckebier stated the injuries were most consistent with those sustained in a fall but did not state in terms of reasonable medical probability that the injuries were caused by a fall. Martinrea argues speculation about the cause of an injury without reliance on established facts does not meet the criteria to be considered substantial evidence. Martinrea contends there is no evidence of a fall while performing work, on the way to the tooling restroom or in the restroom itself before Freeman entered the stall. Martinrea contends the evidence establishes Freeman was seated on the commode in the stall using the toilet for its intended purpose. It argues blunt force trauma to the back of the head is not substantial evidence of a workplace fall. Finally, it notes the ALJ did not find Freeman’s work placed him in a position of risk which led to a fall.

KRS 342.0011(1) defines “injury” as a work-related traumatic event “arising out of and in the course of employment” that is the proximate cause producing a harmful change in the human organism. It has long been established that “in the course of employment” refers to the time, place, and circumstances of an accident, while “arising out of” refers to the cause or source of the accident. AK Steele Corp., vs. Adkins, 253 S.W.3d 59 (Ky. 2008).

Where an employee sustains an injury at work as a result of a purely individual cause, i.e., such as an internal weakness, and the employee’s position at work does not contribute independently to the effects of the resulting harmful change, the injury as a matter of law is idiopathic in nature and, therefore, not compensable. Workman vs. Wesley Manor Methodist Home, 462 S.W.2d 898 (Ky. 1971). By contrast, an unexplained fall is exactly what its designation purports. It is a fall the cause of which cannot be identified sufficiently with any thoroughness of detail. Salyers vs. G. & P. Coal Co., 467 S.W.2d 115 (Ky. 1971) and Coomes vs. Robertson Lumber Co., 427 S.W.2d 809 (Ky. 1968).

Professor Larson distinguishes an idiopathic fall from an unexplained fall, noting the former is the result of a purely personal cause and the latter is the result of an unknown cause. Larsons’ Workers’ Compensation Law, § 9.01[1]. Stated otherwise, the risk in idiopathic falls is deemed personal to the employee, whereas the risk in unexplained falls is deemed neutral. Id.

In Workman, the court acknowledged there is a rebuttable presumption that an unexplained fall during the course of employment is work-related. However, the court found 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 court held the evidence did not compel a finding the employment was a causative factor in the employee’s injuries.

In Stephens, the court upheld a determination by the ALJ that the claimant sustained a work-related injury when she fell while walking from a carpeted surface to a tile floor. Proof was introduced indicating the claimant might have experienced dizziness prior to her fall. The history recorded by the EMS and hospital personnel indicated the claimant had experienced some dizziness, saw spots before her eyes, and felt weak just prior to the fall. The claimant apparently had some episodes of blackout spells in the past, but not within about 9 years of the incident. The ALJ, however, believed the claimant’s testimony that she did not experience any such dizziness. In light of the conflicting evidence, the court stated as follows:

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 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 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.

In Stephens, the employer produced substantial evidence to rebut the presumption, the dizziness, and therefore, the presumption was reduced to a permissible inference. Thus, the claimant retained the burden to prove the fall arose out of the employment. The ALJ found credible the claimant’s testimony that she simply fell when stepping from the carpet to the smoother surface. Thus, the claimant’s testimony along with the presumption constituted substantial evidence upon which to base the decision of work-relatedness.

Here, Drs. Schluckebier, Young and Nichols all agreed Freeman died as a result of blunt force trauma to the back of his head. Dr. Schluckebier opined the injuries to the head were most consistent with those sustained in a fall with impact to the back of the head. Dr. Nichols stated the mechanism of injury was as a result of a fall. He indicated Freeman fell backward from a standing position and cracked his head. Dr. Young stated the cause of death was a closed head injury following loss of consciousness and a fall from the toilet. Their opinions are substantial evidence supporting a conclusion that Freeman fell resulting in the blunt force trauma to his head.

Martinrea relied upon Dr. Young’s opinions to explain the cause of the blunt force trauma. Dr. Young opined the injuries were not consistent with a slip and fall and offered several explanations for the trauma. Essentially, Martinrea argued Freeman’s injuries were the result of an idiopathic condition. Through Dr. Young, Martinrea offered the explanation that Freeman’s pre-existing cardiac condition resulted in a loss of consciousness, a seizure, or that a vasovagal reflex from defecation resulted in a loss of consciousness that led to the blunt force trauma to Freeman’s head. Although Dr. Young did not believe there was a slip and fall, he did believe there was a fall from a seated position on the toilet.

Drs. Nichols and Kapadia both rejected a pre-existing cardiac condition as a cause for Freeman’s fall and injury. Dr. Nichols noted he had never seen this exact type of fatal injury occur as a result of a fall from less than standing height. He indicated a cardiac event could not be absolutely eliminated but doubted that was what actually occurred. He noted there was no new cardiac abnormality to initiate the event and further stated if Freeman’s heart had stopped beating because of the fall it somehow returned to beating after the impact. He further noted Dr. Kapadia’s opinion that Freeman’s death was not due to underlying cardiac conditions. Dr. Kapadia rejected a cardiac condition as the underlying cause noting Freeman had an echocardiogram and a stress test which revealed preserved left ventricular systolic function with no ischemic changes on the treadmill testing. Their opinions are substantial evidence allowing the ALJ to reject Dr. Young’s opinion. It is apparent the ALJ rejected Dr. Young’s opinions when he found the presumption in KRS 342.680 had not been rebutted. Having rejected Dr. Young’s opinion, the ALJ was left with an unexplained fall. Based upon the totality of the evidence, we cannot say the ALJ’s finding of an unexplained fall was clearly erroneous.

Respondent/cross petitioner asks for the assessment of costs against Martinrea under KRS 342.310. Despite the fact that Martinrea was unsuccessful on appeal, we do not believe Martinrea’s position was so lacking in merit as to be considered without a good faith basis. See Roberts v. Estep, 845 S.W. 2d 544 (Ky. 1993). We decline to impose sanctions. This ruling therefore moots Martinrea’s motion to dismiss appeal on timeliness grounds.

Accordingly, the decision of Hon. Richard M. Joiner, Administrative Law Judge, is hereby AFFIRMED.

ALL CONCUR.

COUNSEL FOR PETITIONER/CROSS RESPONDENT:

HON R CHRISTION HUTSON

PO BOX 995

PADUCAH KY 42002-0995

COUNSEL FOR RESPONDENT/CROSS PETITIONER:

HON JEFFERY A ROBERTS

509 MAIN STREET

MURRAY KY 42071

ADMINISTRATIVE LAW JUDGE:

HON RICHARD JOINER

145 EAST CENTER ST

MADISONVILLE KY 42431