Positional-risk doctrine

Increased-risk doctrine

The increased-risk doctrine replaced the earlier peculiar-risk doctrine, which no longer exists. The increased-risk test requires the injured worker to show proof that the injury was caused by an increased risk of the employment; in other words, there was something about the employment that increased the worker's chance of getting injured when compared to the risk of the general public. Under the increased-risk test, whether an injury is explained or unexplained is irrelevant; the key is whether the risk faced by the worker was greater than the risk faced by the public. The increased-risk doctrine is the prevalent test in the U.S.

In Hohlt v. Univ. of Minn., 897 N.W.2d 777, Josephine Hohlt, employed as a painter for the University of Minnesota, slipped and fell on an icy sidewalk weather when walking from her workplace to a public parking ramp that was owned and operated by her employer, the University of Minnesota. Although the City of Minneapolis owned the sidewalk, the University as an adjacent property owner had the responsibility to maintain it, including keeping it clear of snow and ice. The Workers' Compensation Court of Appeals (WCCA) reversed the decision of the compensation judge on the issue of "arising out of" and held that Hohlt's injury was "in the course of" employment. The WCCA applied the increased-risk test to the undisputed facts, and correctly concluded that there was a causal connection between the injury and the employment. Specifically, the causal connection existed because Hohlt's employment exposed her to a hazard that originated on the premises as part of the working environment. She was exposed to the icy sidewalk on her employer's premises because she was there, not as a member of the general public, but because of her employment as a painter for the University. There was a causal connection between her injury and her employment. The Supreme Court affirmed the decision of the WCCA that the "arising out of" requirement was satisfied.

Conversely, in Hood v. Lincare Holdings, Inc., 894 S.E.2d 890, Robert Hood was not entitled to workers compensation benefits under the Workmen's Compensation At, W. Va. Code 23-4-1, because he failed to show that his knee injury resulted from his employment, nor did he face an increased quantity of risk when descending a short set of stairs not qualitatively peculiar to his employment. While descending a short set of stairs from a customer's porch after making a delivery for his employer, Robert Hood felt a "pop" and pain in his right knee. He was later diagnosed with a right knee sprain. Mr. Hood did not slip, trip, or fall, and he was not carrying anything, and he did not contend that the stairs were defective or slippery. The Supreme Court of Appeals concurred with the Board of Review's decision that while Mr. Hood's injury occurred while working, it did not result from his employment as there was found no causal connection between his injury and his employment.

Actual-risk doctrine

This doctrine is concerned with whether the risk was specific to that particular job; in other words, the employment subjected the worker to the very risk that caused the injury. To meet the actual-risk test, the employee must show that the employment conditions created an enhanced risk of injury. This doctrine is not concerned with the risk as it compares to the public, and it also does not consider whether the employee could also have been exposed to that risk outside of the employment. 

James Madison Univ. v. Housden, 2020 Va. App. LEXIS 63 Court of Appeals  In this case, an employee of the university sustained injuries from a spider bite while at work. The Virginia Workers' Compensation Commission awarded benefits under Va. Code Ann. § 65.2-101, because a causative danger that was peculiar to the employee's workplace was demonstrated. The Commission found that not only did she see spiders in her office on the day she was bitten by a brown recluse spider, an invasive species not common to an office environment, but her coworkers observed spiders before and after her injury. Additionally, the evidence established both a physical and temporal proximity between a peculiar or unusual workplace condition—construction work in a boiler room that caused a proliferation of spiders in an above office suite where they were not usually found—and the employee's injury. There was a causal connection between the injury and the conditions under which the employer required her work to be done. The actual-risk test was proved in that the employee's danger of being bitten at work was enhanced by the proliferation of spiders in the boiler room, it was peculiar to her work, not common to the neighborhood, and it was incidental to the character of the business. 

The actual-risk test was not met however in Amaya-Hernandez v. NSR Sols., Inc., 2021 Va. App. LEXIS 115 Court of Appeals. The custodial employee argued that the commission erred when it affirmed the deputy commissioner's finding that she did not suffer an injury by accident when she fell on a set of unusual stairs at work.  The stairs were concrete with a pink plastic covering, which employee asserted were the same surface used at gyms. She stated that while in her last step, the plastic surface caused her to slip and fall. Her forehead and arm hit the wall as she landed sitting. The employer's project manager testified that she questioned the employee about the fall and stairs, wherein the employee testified she did not see anything on the stairs, and described it as having a vinyl stair tread. She further testified she did not see anything wrong with the steps.

The Commission rejected the employee's argument that the deputy commissioner had erred because the vinyl covering on the stairs was an unusual hazard that had caused claimant's injury. It noted that "beyond contending she slipped on the vinyl surface," which claimant had described as like the surface used at a gym, claimant "did not explain what about the covering increased her risk of suffering the fall, instead stating that she 'just fell.' She did not produce persuasive evidence that the vinyl covering was more slippery than other surfaces used to cover stairs." The Commission further noted Melendez's testimony denying that anything was wrong with the steps. Relying ultimately upon County of Chesterfield v. Johnson, 237 Va. 180, 376 S.E.2d 73, 5 Va. Law Rep. 1545 (1989), the Commission concluded that the employee's fall down stairs did not arise out of her employment as there was no evidence of a defect in the stairs or evidence that a condition of the employment caused her fall. 

Positional-risk doctrine

The positional-risk doctrine is upheld if the conditions and obligations of the employment required the worker to be at the place where the injury occurred, at the same time it occurred. In other words, the injury would not have occurred but for the fact that the employment put the employee in a position where he was injured. This is true even if the injury was by a "neutral" force—something that had nothing to do with either the worker personally nor directly associated with the employment. 

In Deffenbaugh Indus. v. Angus, 39 Ark. App. 24, employee Earl Angus was injured when his residence mobile home was destroyed by a tornado. The employer argued that he was not in the course and scope of employment because he wasn't performing job duties at the time of injury, but was instead having dinner with his family. A condition of employment was that the employee reside on the employer's premises, making himself available at all times.The only requirement to be met before positional risk may be applied is that the risk which causes the injury must be a neutral one. The Arkansas Appeals Court determined that the conditions and obligations of the employment placed the worker in the position where he was injured, meeting the requirements of the positional risk doctrine. It is even more common for the test to be approved and used in particular situations. This theory supports compensation, for example, in cases of stray bullets, roving lunatics, and other situations in which the only connection of the employment with the injury is that its obligations placed the employee in a particular place at the particular time when he is injured by some neutral force. The Arkansas Court of Appeals adopted the positional risk doctrine to provide compensation for employees who are injured by neutral risks, but declined to draw a fine distinction between types of neutral risks; a tornado or windstorm is no less "neutral" than a roving lunatic or a stray bullet. With substantial evidence that the employee sustained injury as a result of an accident that arose in the course of his employment, Ark. Code Ann. § 11-9-401 (1987), the Arkansas Court of Appeals reviewed the evidence in the light most favorable to the commission's findings and affirmed the appeal. 

To highlight the importance of knowing the state's law on what it means for an employee to be in the course of, or arising out of, to receive compensable workers compensation benefits, we look at the North Dakota Supreme Court case of Fetzer v. N.D. Workforce Safety & Ins., 2012 ND 73. Beverly Fetzer fell while walking on her employer's premises. The parties stipulated that the fall was unexplained and not attributable to a risk personal to appellant. Because appellant was unable to show a causal connection between her fall and her employment, the administrate law judge properly denied her request for workers' compensation. On appeal, the employee argued her injury was compensable under the positional risk doctrine. 

The Supreme Court of North Dakota held that the but-for reasoning of the positional risk doctrine was incompatible with the North Dakota Workforce Safety and Insurance Act. Because the positional risk doctrine required a claimant only to show that an injury was sustained while at work, the doctrine directly contravened the language of N.D.C.C. § 65-01-02(10) and the legislature's intent in adding the "arising out of" element. Under  N.D.C.C. § 65-01-11, workers have a burden of providing by a preponderance of the evidence that they suffered a compensable injury, entitling them to workers' compensation benefits. A "compensable injury" is defined as an injury by accident arising out of and in the course of hazardous employment which must be established by medical evidence supported by objective medical findings. The "arising out of" language was added to the definition in 1977, with courts interpreting the law to mean that if an employee is at the place he is supposed to be at the time he is supposed to be there, and engaged in an activity whose purpose is related to employment, any injury he receives is compensable. 

It was the intent of the North Dakota Workforce Safety and Insurance (WSI) that the addition of "arising out of and" would change that interpretation. By amending N.D.C.C. § 65-01-02(10) to define a compensable injury with conjunctive language as one "arising out of and in the course of" employment, the legislature and WSI intended for workers to prove more than that they merely suffered an injury on work premises and during work hours to receive compensation for the injury. While the positional risk doctrine may be consistent with a liberal construction of workers' compensation law, the North Dakota Workforce Safety and Insurance Act specifically provides this title may not be construed liberally on behalf of any party to the action or claim. N.D.C.C. § 65-01-01. In this appeals case the WSI took the position that an employee who endures an unexplained fall at work has not automatically satisfied the "arising out of" element merely because the fall occurred on work premises, arguing the need for an analysis of the causal connection between the employment and the injury. WSI claimed that adoption of the positional risk doctrine would change existing North Dakota law, which is a matter for legislative, rather than judicial, determination.

Because the employee was not able to show a causal connection between her fall and her employment, the Supreme Court affirmed the district court judgment affirming WSI's order to deny her request for benefits.