The Employee in this matter worked as heat and frost insulator for the Employer. On November 8, 2021, the Employee was walking to the jobsite at approximately 5:45 AM. The Employee had been given directions on how to access the job site. The Employee was between 5 and 10 feet from the entrance to the job site when he slipped and fess. The Employee crawled to the fence, pulled himself up, and proceeded to Lind Hall, the job site. The Employee could not explain the exact cause of the fall. As a result of the fall the Employee sustained an ankle injury and peroneal nerve dysfunction along with the onset of back pain and bilateral extremity weakness and pain. The Employee was diagnosed with an ankle sprain. The Employee underwent an EMG which showed acute left peroneal neuropathy across the fibular head. The Employee lost sensation on the left side of hf his left leg from the knee to the foot and developed foot drop. The Employee’s provider opined that the November 8, 2021 dated of injury was a substantial contributing factor to the Employee’s peroneal nerve dysfunction and new onset of back pain and bilateral extremity pain and weakness.
The Employer and Insurer got an IME that diagnose the Employee with a left lateral ankle sprain, low back pain, grade 1 spondylolisthesis at the L4-5 and moderate L4-5 neural foraminal stenosis with bilateral L4-5 inflammatory arthropathy, status post left calcaneal osteotomy, lateral ankle ligament reconstruction, an excision of crystal tophus of soft tissues, and history of a left ankle fracture. It was noted that the peroneal nerve injury was due to the work injury and could be permanent.
A claim petition was filed alleging wage loss and medical benefits. The judge found that the Employee’s injury arose out of and in the scope and course of the employment and ordered the Employer and Insurer to pay benefits. In finding so, the judge determined that the location where the Employee fell was used and an extension of the jobs site because vehicles delivered supplies and equipment and the security measures to keep the building secure caused changes to the status and appearance of the walkway.
The Employer and Insurer appealed. They argued that the substantial evidence does not support the judge’s finding that the injury arose out of and in the course and scope of employment. They argue that there is no evidence of the cause of the fall and was simply an unexplained fall on a flat surface that did not arise out of employment. Because the injury occurred prior to the Employee’s workday and outside the work premises of the construction gate they argue that the injury was not in the course and scope of the Employee’s employment. Finally, they argue that the judge inappropriately found the Employee’s injury fell under the ingress and egress exception.
The court noted the Employee was not certain what caused the fall but they could not conclude the injury was unexplained. The Employee discounted the suggestion that other factors alone caused the fall and testified that he assumed he slipped on leaves. The circumstances presented an increased risk of injury due to the presence of wet and frosty leaves covering the walkway, dim lighting, unfamiliarity with the area, limited entry, an encroaching fence on the walkway that was simultaneously used for construction vehicles, and the Employee wearing all gear necessary to work. Collectively, these circumstances increased the Employee’s exposure to injury and are the causal connection between the work injury and the employment.
The Employer and Insurer also argued that the Employee’s injury was not in the course and scope of employment because the injury occurred outside the jobsite. The judge found the Employee was instructed to cross the street, walk between buildings to the jobsite fence, follow the fence to the gate to enter the building. The Employee was also wearing all gear to begin work following the planned meeting. This led the judge to conclude that the Employee’s route to the early morning meeting was connected to his employment and therefore, was in the course and scope of his employment when he fell.
The W.C.C.A. agreed with the compensation judge’s findings and upheld their ruling.