BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


DARLENE DURKEE, Applicant

COUNTY MARATHON OTHER, Employer

EMPLOYERS INSURANCE OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 91-043764


The employer submitted a petition for Commission review alleging error in the Administrative Law Judge's Findings and Order issued on January 13, 1992. The applicant submitted an answer to the petition and both parties submitted briefs. At issue is whether the applicant's injury arose out of her employment.

The Commission has carefully reviewed the entire record in this matter, and after consultation with the Administrative Law Judge concerning his assessment of the credibility of witnesses, hereby sets aside the Findings and Order below, and substitutes the following therefor:

FINDING OF FACTS AND CONCLUSIONS OF LAW

The applicant fell while walking in the employer's courthouse performing her routine duties. The floor which she fell on was made of terrazzo, a hard surface. The employer contends in its petition for Commission review that the Administrative Law Judge erred in determining that the applicant's fall on the terrazzo floor was compensable. The employer states that the applicant's fall was not compensable because it was not established that the floor constituted a zone of special danger.

The applicant has the burden of proving facts essential to recovery in a worker's compensation case. In this case the applicant must establish that her injury arose out of her employment pursuant to the positional risk doctrine. In Brickson v. ILHR Department, 40 Wis. 2d 694, 702 (1968), the court noted that the positional risk doctrine provides that an accident arises out of the employment, when the connection between the employment and the accident is such that the obligation or circumstances of the employment places the employe in the particular place at the particular time when she is injured by a force which is not solely personal to her. The supreme court noted that in applying the positional risk doctrine, an accident arises out of employment if the conditions or obligations of the employment create a zone of special danger out of which the action causing the injury arose. The court held that an accident arises out of employment if the employe is present at a place where she is injured through the agency of a third person, an outside force or the conditions of the location constituting a zone of special danger.

The Supreme Court has held that a level surface is not an area of special danger. Peterson v. Industrial Comm., 269 Wis. 44 (1955). The court reasoned in Kraynick v. Industrial Comm., 34 Wis. 2d 107, that it was not prepared to accept the contention that in the absence of a special condition or circumstance, a level floor in a place of employment is a hazard. The court noted that cement floors or other hard floors are as common outside industry as within it. Therefore, in order to establish that her injury arose out of her employment, the applicant must establish that there was a special condition or circumstance which made the level floor in the courthouse, a zone of special danger.

The applicant testified that she fell because the floor was slippery at the spot where she was injured. However, the applicant admitted in a deposition taken prior to the hearing that the floor was clean and dry at the time she fell. The employe testified that she had spoken to someone in the maintenance department for the employer who told her that he had put six coats of wax on the floor before she was injured. However, this testimony was hearsay. There was no direct testimony or evidence that the floor had been waxed prior to the applicant's fall. In fact, the employer's director of buildings, Mr. Messenberg, testified that the employer never used wax on the terrazzo floor. Mr. Messenberg testified that every spring the floor is sealed with an oil-based sealer, and that in 1991 the floor was probably sealed in March or April, several months before the applicant fell. However, they had not slipped on the day the applicant fell, and their testimony did not establish that there was a special hazard.

The applicant has failed to present evidence that the hard terrazzo floor created a dangerous situation that increased the risk to the applicant by virtue of her having to be there in the course of her employment. The Commission consulted with the Administrative Law Judge who reiterated that he found the employe credible that she had slipped because the floor was slippery. However, there was no evidence of any special condition or circumstance which made the floor slippery. It was not established that the floor had been waxed any time prior to the applicant's fall. There was no evidence that the floor was littered with any material, or that it was wet. The fact that the floor was washed, dried and buffed the night before, does not establish a special condition or circumstance to warrant finding that the floor was an area of special danger. The applicant presented two coworkers who testified that they had slipped in the same area in the past. However, their testimony did not establish that there was anything on the floor on July 8, 1991, which made it slippery. The evidence does not establish that the applicant's injury was compensable pursuant to the positional risk doctrine. Therefore, it was not established that the applicant's injury arose out of her employment. The applicant's claim for benefits must be denied.

NOW, THEREFORE, this

ORDER

The Findings and Order of the Administrative Law Judge are set aside, and the Commissions Finding and Order substituted therefore. The applicant's claim for benefits is dismissed.

Dated and mailed April 16, 1992.
ND 3.33

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The Commission disagrees with the Administrative Law Judges credibility determination that the applicant fell due to a special danger created by a slippery floor. The evidence did not establish that the floor had been waxed or treated with any chemical which made it slippery. There is no evidence that the floor had a slippery film or other material on it which would make it slippery. The applicant admitted that the floor was clean and dry when she fell. Based on the evidence in the record, it was not established that the applicant injury arose out of her employment.

cc:
Attorney James L. Bartells
James L. Bartells Ltd

Attorney Eric D. Hendrickson
Staub & Schuch

175 - CD3245


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