CLAUDE G. DENAIS, Employee/Appellant, v. MINNESOTA MINING & MFG. CO. and OLD REPUBLIC INS. CO./SEDGWICK CLAIMS MGMT. SERVS., INC., Employer-Insurer, and BLUE CROSS & BLUE SHIELD OF MINN., ST. PAUL RADIOLOGY, and FAIRVIEW HEALTH SERVS., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 15, 2009
NOTICE OF INJURY - ACTUAL KNOWLEDGE. The compensation judge erred in finding that the employer did not have statutory notice where the employer had actual knowledge, on the day of the claimed injury, that the employee fell in his private restroom at work, during work hours, and sustained a serious injury in the fall.
ARISING OUT OF & IN THE COURSE OF - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supports the compensation judge's conclusion that the employee's injury was likely caused by falling on a flat floor as a result of his use of heart medication in combination with alcohol or other unknown cause.
ARISING OUT OF & IN THE COURSE OF - IDIOPATHIC CONDITION. An injury sustained as the result of a fall due to an idiopathic condition is compensable only if the employment places the employee in a position that increases the dangerous effects of such a fall. The compensation judge properly held the employee's fall onto a flat floor did not arise out of his employment and was not compensable.
Affirmed in part and reversed in part.
Determined by: Johnson, C.J., Pederson, J., and Stofferahn, J.
Compensation Judge: Janice M. Culnane
Attorneys: Jeffrey M. Ellis, Minneapolis, MN, for the Appellant. Gregg A. Johnson and Joseph P. Mitchell, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge’s finding that the employer did not receive statutory notice of the employee’s injury. We reverse this finding. The employee also appeals the finding that his fall on May 24, 2004, was not a personal injury that arose out of and in the course of his employment. We affirm this finding.
Claude G. Denais, the employee, fell and sustained head injuries on May 24, 2004, while employed by Minnesota Mining & Manufacturing Company [3M], then insured by Old Republic Insurance Company, administered by Sedgwick Claims Management Services, Inc. The employer and insurer denied liability for a personal injury.
On May 24, 2004, the employee was the managing director of the employer’s Venezuela Division. The employee had previously been informed he was scheduled to start a new job with the employer in St. Paul, Minnesota, on June 1, 2004. As part of the management transition, the employee’s successor came to Caracas, Venezuela, and met with the employee and other executives starting at 8:00 a.m. on May 24, 2004. The meeting was held to honor the employee’s service and to “pass the baton” to the new managing director of 3M Venezuela. At 9:00 a.m., the meeting participants had a champagne toast to bid farewell to the employee. The employee drank one or two glasses of champagne and then the meeting resumed. At 12:00 p.m. the meeting adjourned for lunch. The employee went to his office during the lunch break.
The meeting resumed at 1:00 p.m. At approximately 2:00 p.m., the employee left the meeting and went to his office. At some point, the employee entered his private bathroom and locked the door. At approximately 6:00 p.m., Edwardo Lopez, the employer’s human resource manager, was informed that the employee had been in his bathroom for hours. Mr. Lopez attempted to speak with the employee through the door, but there was no response. Mr. Lopez attempted to enter the bathroom, but the door was locked. Security was summoned to open the door. Upon opening the door, Mr. Lopez saw the employee lying on his back, face up, with a pool of blood around his head.
The employee’s private bathroom consisted of a door opening into a hallway containing a closet which then led into the bathroom area in which there was a toilet and a sink. There was a single step leading up from the hallway into the toilet area. The floor in both the entryway and the toilet area was marble. Mr. Lopez and Carolina Merlo both saw the employee on the floor in the bathroom. Both testified the employee was lying in the hallway portion of the bathroom with his feet by the step going up into the toilet area. The employee‘s head was facing right and was surrounded by a pool of blood. Ms. Merlo and Mr. Lopez stated there was no sharp object around the employee, just a hard marble floor.
An ambulance was called and the employee was taken to the Clinica El Avila where he was admitted to the intensive care unit (ICU). A cerebral CT scan performed on May 24, 2004, showed a left petrous temporal bone fracture and a right temporal hemorrhagic contusion. The employee progressed satisfactorily and was discharged from the ICU on May 27, 2004, but remained in the hospital. On June 1, the employee developed acute left hemiparesis. A cerebral CT scan again showed a right temporal hemorrhagic contusion with increased cerebral edema. On June 3, 2004, the employee was seen by Dr. Reynaldo R. Lopez, a neurosurgeon. Dr. Lopez stated the employee was admitted to the ICU with severe brain and head trauma caused by a fall resulting from syncope of unknown etiology and otorrhea. A cerebral MRI scan on June 8, 2004, showed an increase in the extent and thickness of the subdural hematoma in the right frontoparietal occipital region. A right frontoparietal craniotomy and drainage of the subdural hematoma was then performed. An MRI scan on June 12, 2004, showed no evidence of a subdural hematoma and showed a reduction of the right temporal hemorrhagic contusion and cerebral edema. The employee was discharged from the hospital on June 13, 2004. Dr. Lopez reexamined the employee on June 23, 2004, and the employee reported significant improvement in his neurological and psychomotor functions. Another cerebral MRI scan showed the right temporal post-contusion area was resolving.
In June 2004, the employee was examined by Dr. Asdrubal Huerta, a consulting neuropsychologist. The doctor noted the employee was referred for a “neurocognitive evaluation after presenting neurological sequels of blunt Cranioencephalic trauma (CET) in spontaneous fall from his feet on May 24th, 2004.” The doctor stated the employee sustained a “blunt CET with acceleration-deceleration mechanism with fracture, petrous temporal fracture, RH subdural hematoma, tympanic membrane rupture, and otorrhagia. There is no clear data on the incident, without witnesses, and the patient was found unconscious in the bathroom of his office.” (Resp. Ex. 11-4.) Dr. Huerta noted the employee then demonstrated a cognitive performance with profound alteration of implicit and explicit memory that he expected would improve to some extent.
The employee returned to Minnesota to return to a job with the employer. On September 15, 2004, the employee resigned his employment. In May 2007, the employee filed a claim petition seeking benefits for the injuries sustained in the May 24, 2004, fall.
The employee was examined by Dr. Richard Galbraith in October 2007 at the request of the employer and insurer's attorney and the doctor’s deposition was taken in April 2008. Dr. Galbraith testified the employee fell on May 24, 2004, and struck the left side of his head causing a nondisplaced skull fracture, bleeding from the left ear, a bruise on the left side, a right-sided subdural hematoma, hemorrhage in the interhemispheric fissure, and a bruise of the right temporal lobe of the brain. The doctor stated the contusion and subdural hematoma required a craniotomy to remove the hematoma. The doctor opined the employee did not trip and fall in the bathroom because had he done so he would have landed face down. Since the employee was found lying on his back, Dr. Galbraith opined the employee’s injuries were caused by a fall directly onto the flat floor. The doctor testified that had the employee struck his head on some object while falling, such as the edge of the step, the blunt trauma would have caused a depressed skull fracture. Dr. Galbraith stated the employee did not sustain a depressed skull fracture in the fall. Further, the doctor opined that, had the employee struck his head on a sharp edge, in addition to an indentation or depression in the skull, the employee would have had an indentation in the soft tissue which would have been present for several days. Dr. Galbraith testified that he would not expect and did not find any kind of jagged scar or depression mark in the employee’s skull. Accordingly, the doctor concluded the employee’s injuries were consistent with falling on a flat surface.
Following a hearing, the compensation judge found the employee’s filing of a claim petition on May 22, 2007, was the first notice the employer received that the employee contended his fall on May 24, 2004, was work-related. The compensation judge found this notice was insufficient under Minn. Stat. § 176.141. The compensation judge further found the employee failed to prove the fall on May 24, 2004, arose out of and in the course of his employment. The compensation judge stated in her memorandum that “the evidence simply fails to support Mr. Denais’ activities as an employee of 3M contributed to the fall and the facts of his fall are not sufficient to satisfy the legal requirement of a determination that the injury arose out of his employment with 3M.” (Mem. at 6.) Rather, the compensation judge concluded that the cause of the employee’s fall was syncope which was likely related to the employee’s use of heart medication or was of unknown origin. The compensation judge further concluded there was insufficient evidence that the employer’s premises constituted an aggravating hazard or increased risk. Accordingly, the compensation judge denied the claimed benefits. The employee appeals.
1. Notice of Injury
The compensation judge found the employer first received statutory notice that the employee claimed his fall of May 24, 2004, was work-related on May 22, 2007, with the filing of the claim petition. The judge concluded this notice was legally insufficient under Minn. Stat. § 176.141. The employee contends this finding is incorrect and asserts the employer had adequate knowledge of the circumstances of the employee’s fall to put the employer on inquiry notice. Accordingly, the employee asks this court to reverse the compensation judge’s finding that the employer did not have statutory notice.
Minn. Stat. § 176.141 provides that no compensation for an injury shall be allowed unless the employer has “actual knowledge of the occurrence of the injury” or written notice is given to the employer within 180 days after the occurrence of the injury. “The purpose of the requirement of actual knowledge or notice is to permit the employer to make such investigation as is necessary to determine liability after a claim.” Miller v. Peterson Constr. Co., 229 Minn. 22, N.W.2d 15, 314 W.C.D. (Minn. 1948). “[F]irst, it enables the employer to furnish immediate medical diagnosis and treatment with a view to minimizing the seriousness of the injury, and, second, it affords protection to the employer by enabling him to investigate the facts and question witnesses while their memories are unfaded.” Sobczyk v. City of Duluth, 245 Minn. 569, 73 N.W.2d 795, 799, 19 W.C.D. 263, 267 (1955). Actual knowledge under the statute has been defined as information on which to base inquiry if the employer so desires or, at minimum, information such as a reasonable person would usually act upon in the ordinary course of human affairs. Nelson v. Reid & Wackman, 228 Minn. 137, 36 N.W.2d 544, 15 W.C.D. 479 (1949). The facts and circumstances of a traumatic injury or disability must be such as would put a reasonable person on inquiry that the disability is work-related. Pojanowski v. Hart, 288 Minn. 77, 81, 178 N.W.2d 913, 916, 25 W.C.D. 206, 209. Generally, where an employer has actual knowledge of an accident at work and the injury, notice thereof is unnecessary. State v. District Court of St. Louis Co., 129 Minn. 423, 152 N.W.2d 838 (1915).
The employer and insurer contend the judicially created doctrine of inquiry notice was developed under the liberal construction principles in existence prior to 1983. Effective July 1, 1983, the legislature enacted Minn. Stat. § 176.001 which states, in part:
It is the specific intent of the legislature that workers’ compensation cases shall be decided on their merits and that the common law rule of “liberal construction” based on the supposed “medial” basis of workers’ compensation legislation shall not apply in such cases . . . . Accordingly, the legislature hereby declares that the workers’ compensation laws are not remedial in any sense and are not to be given a broad liberal construction in favor of the claimant or employee on the one hand, nor are the rights and interests of the employer to be favored over those of the employee on the other hand.
Citing Fitch v. Farmers’ Union Grain Terminal Ass'n, 143 N.W.2d 192, 22 W.C.D. 831 (Minn. 1966), the employer and insurer contend the doctrine of inquiry notice is no longer valid. In Fitch, the supreme court affirmed a finding that the employer had statutory notice saying, “[w]hatever doubts we might have as to the sufficiency of the evidence to support a finding of actual notice have been resolved in favor of the employee in accord with the general policy of a liberal construction of provisions with respect to notice as distinguished from the statutory limitations specified for the filing of claims.” The employer and insurer argue that with the enactment of Minn. Stat. § 176.001, the doctrine of inquiry notice has no application. We are not persuaded.
What the employer and insurer describe as a “doctrine of inquiry notice” is a part of the judicial definition of the statutory phase “actual knowledge” which dates back at least to the Nelson case in 1949. Since Minn. Stat § 176.141 does not define the phrase actual knowledge, it is the function of the judiciary to construe the statutory language so as to ascertain and effectuate legislative intent. See,e.g., Wheeler Lumber Bridge & Supply v. Seaboard Surety Co., 218 Minn. 443, 16 N.W.2d 519 (1945). We do not believe that in enacting Minn. Stat. § 176.001, the legislature intended to change the judicial definition of the phrase actual knowledge. Had the legislature so intended, it could have done so directly. We, therefore, continue to apply the Supreme Court’s definition of actual knowledge which includes information upon which to base an inquiry.
The employer was well aware the employee fell in his private restroom at work and was equally aware the employee sustained a serious injury in his fall. The compensation judge, however, found the employer did not have statutory notice because the employer was not timely advised that the employee claimed that his fall and/or his injuries were work-related. In her memorandum, the compensation judge stated, “Awareness of the employee’s fall on the employer’s premises does not constitute notice that the employee claimed the fall to be a work-related injury.” (Mem. at 7.) We disagree. Actual knowledge does not require the employer to know that the employee claimed his fall was work-related. Compare Boldt v. Jostens’, Inc., 261 N.W.2d 92, 30 W.C.D. 178, 182 (Minn. 1977)( the employee left work because of a lung condition subsequently diagnosed as Goodpasture’s syndrome, a condition then described as being of unknown etiology; the court stated "[k]nowledge of the disease, as distinguished from knowledge of causal relationship between the disease and the employment, is sufficient.”) The employer clearly knew the employee fell and sustained an injury during work hours while on the employer’s premises. The employer had, therefore, information connecting work activity with an injury. This is sufficient knowledge to put a reasonable person on inquiry whether the employee’s disability was work-related. The compensation judge’s finding that the employer did not have adequate notice under Minn. Stat. § 176.141 is reversed.
2. Arising Out Of the Employment
The compensation judge found the employee failed to prove that his fall arose out of his employment. In her memorandum, the compensation judge stated that although the precise cause of the employee’s fall was unknown, medical records suggest the employee's use of beta-blockers for a heart condition plus his alcohol consumption caused a fainting spell. The compensation judge concluded the employee’s fall was idiopathic. The compensation judge stated that “although Mr. Denais sustained an injurious idiopathic fall in his private offices at 3M Venezuela, the employee must prove the employment premises increased his risk of injury. The employee was found on his back, on the flat floor. There was insufficient evidence of any aggravating hazard or increased risk.” (Mem. at 5.)
The employee concedes substantial evidence supports the compensation judge’s finding that the cause of the employee’s fall was not the work premises or work activity but more likely was related to the employee’s heart medication or was of unknown origin. The employee, however, contends the compensation judge’s finding that the premises did not aggravate the effects of the employee’s fall does not comport with the evidence. Rather, the employee contends the evidence establishes that the premises did exacerbate the employee’s injury and is, therefore, compensable.
The employee contends there is evidence that when he fell he struck his head on a sharp edge which caused his head injury. The photographs of the bathroom, the employee argues, show sharp edges around the door frame and on the door handles to the closet. These door handles are on the left side of the hallway where the employee’s body was located after his fall. Photographs of the employee’s left scalp show a residual scar over his left ear. (Pet. Ex. D.) The employee testified this scar is from a wound he sustained when he fell on May 24, 2004. A medical report of Dr. Lopez dated June 10, 2004, references a small wound in the employee’s left parietal scalp. The employee argues his left-sided scalp injury could only have been caused by striking some sharp feature of the premises as he fell. Accordingly, the employee contends his injury arose out of his employment. We are not persuaded.
Records from the Clinica El Avila emergency room and ICU in May 2004 are not in evidence, so we cannot determine whether the employee arrived at the hospital with a laceration in his left scalp. The first mention in the medical records of any injury on the employee’s left scalp is in a June 10, 2004, note from Dr. Lopez which states, “Mild local infection was observed in a small wound 2 cm in length in the left parietal scalp, for which small cefadroxil was prescribed.” The doctor’s June 3, 2004, chart note, however, makes no mention of the wound. (Resp. Ex. 11-3.) The medical records do not explain the cause of this wound. The picture showing the scar over the employee’s left ear was taken in April 2008. (Pet. Exs. D, E.) Dr. Huerta stated the employee’s injury was blunt cranioencephalic trauma. Dr. Galbraith agreed and opined a fall onto a flat floor would cause a blunt trauma injury.
At the request of the employer and insurer’s attorney, Dr. Galbraith submitted a supplemental report dated May 29, 2008, In that report, Dr. Galbraith stated,
I also reviewed the photographs that were sent to me on May 19, 2008, in which a picture of Mr. Denais’ neurosurgical intervention was included, that is the flap that is sutured on the right side is noted. Unfortunately, Mr. Denais did not have a picture taken of the left side of his head as he now tells us, four years later, on April 8, 2008, that he took a picture of a scar on the left side of his head claiming that this scar on the left side of his head was a direct result of the fall that occurred four years earlier and was attempting to support his claim that the left side of his head struck a sharp object, that is the threshold or step, as opposed to simply striking the left side of his head bluntly on marble floor.
I do not agree that that scar had anything to do with his head hitting a sharp threshold for the following reasons: If an individual strikes a sharp object with the left side of his head, such as Mr. Denais claims, it would have been quite evident at the time of the blow that he would have had a very large laceration of the left side of his scalp that would have resulted in significant evidence of trauma to that area that would have required suturing. The medical records clearly state that there was no mention of any laceration to the left side of his scalp in the medical file that I had reviewed, and it was several weeks later that the neurosurgeon, Dr. Lopez, mentioned that he had a 2 cm wound infection on the left side of his head that would not have been related to hitting a sharp object such as a threshold at the time that he fell. In addition, had he hit that threshold as a sharp object and had the laceration, he also probably would have had a significant depressed skull fracture rather than just a nondisplaced skull fracture in the deepest position of the temporal bone on the left side. I believe that this would explain that Mr. Denais, neurologically from the picture that was shown to me during my deposition that he was found lying with his feet near the threshold but his head at the opposite direction. He fell and landed on the left side of his head but did not hit a sharp object as he claims for the reasons stated above.
The scar that he allegedly is depicting on April 8, 2008, was a very nonspecific appearing short scar that does not even relate to the head trauma as was documented in the medical records. There is no question that he fell and struck the left side of his scalp with a blunt blow but I think that he hit just the marble floor that resulted in the shearing force causing the temporal nondisplaced fracture and the contrecoup subdural hematoma on the right side.
I hope that this summary will be helpful in clarifying that Mr. Denais had blunt trauma and not a sharp object hitting the left side of his skull that would have caused a laceration and probably a depressed skull fracture.
There is evidence of record which might support a conclusion that the employee struck his head on some sharp object while falling. The issue on appeal, however, is not whether the evidence will support a different conclusion, but whether the compensation judge’s decision is supported by substantial evidence in view of the entire record as submitted. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59 37 W.C.D. 235, 239 (Minn. 1984). The evidence in the case, including the May 29, 2008, report of Dr. Galbraith, supports the compensation judge’s conclusion that the employee’s injury was caused by falling on a flat floor. Because this inference is supported by substantial evidence, it is affirmed.
The remaining issue, then, is whether the compensation judge’s conclusion - - that the employee's idiopathic fall onto a flat floor did not arise out of his employment - - is legally correct. In O’Rourke v. North Star Chemicals, Inc., 281 N.W.2d 192, 31 W.C.D. 672 (Minn. 1979), the Minnesota Supreme Court cited §§ 12.10 to 12.14 of Larson's Workers’ Compensation Law describing what Larson calls the “increased-danger” rule applicable to idiopathic falls. Larson states,
The basic rule, on which there is now general agreement, is that the effects of such of a fall are compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle. The long-standing controversial question is whether the effects of an idiopathic fall to the level ground or bare floor should be deemed to arise out of the employment.
1 A. Larson and L.K. Larson, Workers' Compensation Law, § 9.01. Commenting further on idiopathic level-floor fall cases, Larson states,
Inevitably there arrive the cases in which the employee suffers an idiopathic fall while standing on a level surface. At this point there is an obvious temptation to say there is no way of distinguishing between a fall onto a table and a fall onto a floor, since in either case the hazard encountered in the fall was not conspicuously different from what it might have been at home. A distinct majority of jurisdictions, however, have resisted this temptation and have denied compensation in level-fall cases. The reason is that the basic cause of the harm is personal, and that the employment does not significantly add to the risk. A significant minority, however, make awards for idiopathic level-floor falls.
Id. § 9.04[a].
In Stenberg v. Raymond Coop. Creamery, 209 Minn. 366, 296 N.W. 498, 11 W.C.D. 415 (1941), the employee fell at work due to a either a trick knee or a heart attack. As he fell, he struck his head on an iron typewriter stand causing a skull fracture and hemorrhage resulting in his death. The court stated the issue was “whether the accident was caused by risks in the conditions of his employment, and that again resolves itself into a determination of whether the fall or the weak knee and defective heart caused the injury.” The court concluded the accident appeared "to have had its origin in a risk connected with the employment" and that the claim was compensable because the fall itself was what caused the employee’s death, not his defective knee or weak heart.
In Barlau v. Minneapolis-Moline Power Implement Co., 214 Minn. 564, 9 N.W.2d 6, 12 W.C.D. 531 (1943), the employee was found unconscious on the floor at work. The employee was taken to the office of the company nurse where he was examined by his family doctor. The employee then walked home with the help of his wife and brothers. Later that afternoon, the doctor was again called and the employee was found to be having an epileptic seizure. He was taken to a hospital where an x-ray showed a fracture of the humerus. The dispute in the case was whether the employee’s fractured humerus was caused by his fall at work or by an epileptic seizure which he suffered at his home. The court concluded the case was governed by the Stenberg decision “where we held that an injury to an employee, who has a defective knee, caused by a fall, arose out of his employment.” The court noted that, in both cases, the employee was engaged in doing his work when he fell. The court went on to state, “the decided weight of authority, following the same reasoning as the Stenberg case, holds that an accidental injury or death of an employee, while doing his work, caused by falling because of an epileptic seizure, arises out of the employment.”
In Miller v. Goodhue-Rice-Wabasha Citizens’ Action Council, Inc., 293 Minn. 454, 197 N.W.2d 424, 26 W.C.D. 187 (Minn. 1972), the employee, who as a result of a birth injury suffered from epilepsy and atrophy of his left hand, arm and leg, fell at the premises where he was employed when his left leg “locked” causing the employee to fall and fracture his hip. Later, while walking with a cane and still recovering from the prior fracture, the employee’s leg again “locked” causing him to fall and again fracture his left hip. The court held that “even though the employee’s handicap may have been a factor in the original fall, the injury resulting therefrom was nevertheless compensable" under the Stenberg and Barlau decisions. Accordingly, the second fall and injury were consequential and were also compensable.
Finally, in O'Rourke, id., the employee fell into a boxcar containing bauxite and died. The compensation judge found the employee sustained an acute subarachnoid hemorrhage which caused the employee to fall into the boxcar following which he died from asphyxiation caused by inhalation of the bauxite. On appeal, the court agreed the employee’s fall itself was caused by an “idiopathic condition” unrelated to the employment, but added, “It is generally agreed, however, that if an employee who falls because of such a condition is placed by his employment in a position which aggravates the effects of the fall, [the] resultant injury and death are causally related to and arise out of his employment.” The court further stated the “crucial issue is, therefore, what caused the employee’s death.” There was a medical dispute whether the cause of death was asphyxiation from inhalation of bauxite or the idiopathic cerebral hemorrhage. Because the evidence supported the conclusion that the employee died by asphyxiation, the claim was compensable.
It is difficult to reconcile the Supreme Court cases on the issue of idiopathic falls. In the Stenberg case, the employee fell either due to a trick knee or a heart attack. Apparently, the instrumentality of the injury was an iron typewriter stand on which the employee struck his head while falling causing a skull fracture and death. The case could, therefore, be read as adopting the increased danger rule. The court did not, however, make any reference to any increased hazard or danger on the premises due to the typewriter stand. Rather, the Stenberg court focused on the cause of the employee’s death. The court concluded it was the fall which was the cause of the employee’s death, not his defective knee and the case was, therefore, compensable. In the Barlau case, the issue was whether the employee’s fractured humerus was caused by a fall on a flat floor or by an epileptic seizure which occurred at home. The court concluded the case was governed by the Stenberg decision and held that the accidental injury or death of an employee, while doing his work, caused by falling because of an epileptic seizure, arises out of the employment. The Stenberg and Barlau cases support an award of benefits in this case. While not as directly on point, the Miller case would also appear to support an award of benefits.
The O’Rourke decision came 36 years after the Barlau decision and does not cite either Stenberg or Barlau. The court in O’Rourke, however, framed the issue in substantially the same manner as it had in Stenberg and Barlau: “The crucial issue is, therefore, what caused the employee’s death.” The court concluded since the employee was asphyxiated by the inhalation of bauxite, his death was compensable. This conclusion appears consistent with the holding in Stenberg and Barlau that an injury caused by an idiopathic fall is compensable. The court also, however, cited Professor Larson’s increased-danger rule: that the effects of an idiopathic fall are compensable only if the employment placed the employee in a position that increased the dangerous effects of such a fall. Arguably, this theory of liability is narrower than the holding in Stenberg and Barlau that an injury is compensable if it is caused by an idiopathic fall at work. If, the decision in O’Rourke was governed by the Stenberg and Barlau decisions, arguably, it would have been unnecessary to cite Professor Larson’s increased-danger rule on idiopathic falls. We are, therefore, unclear whether the Supreme Court intended to limit the holding in the Stenberg and Barlau cases and adopt the majority rule that an injury sustained as the result of a fall due to an idiopathic condition is compensable only if the employment placed the employee in a position which increased the dangerous effects of such a fall.
This court specifically addressed the issue of a level-floor fall in Koenig v. North Shore Landing, 54 W.C.D. 86 (Minn. 1996). In Koenig, the employee, fell at work onto a flat floor covered with slate tiles. The employee had no recollection of why he fell. The employee had a history of epileptic seizures and alcohol abuse and the compensation judge commented the likely cause of the employee’s fall was due to a seizure caused by alcohol abuse. On appeal, a divided panel of this court adopted the majority position described by Professor Larson and held that injuries resulting from idiopathic falls onto flat surfaces do not arise out of the employment. The opinion stated that a flat floor, regardless of its softness or hardness, is standard in a workplace and is not a unique or unusual hazard.
Given the state of the law, we find no compelling reason not to view the Koenig decision as controlling precedent. See also Spinks v. Ecowater Sys., 65 W.C.D. 32 (W.C.C.A. 2005); compare, e.g., Thuringer v. Virginia Reg'l Med. Ctr., No. WC04-170 (W.C.C.A. Oct. 7, 2004). Since the employee’s injury was caused by an idiopathic fall onto a flat floor, under Koenig the injury did not arise out of the employment. Accordingly, the compensation judge’s denial of benefits is affirmed.
 In Finding 2, the compensation judge found the employer, Minnesota Mining and Manufacturing, was self-insured for workers' compensation liability. At the hearing, the parties stipulated to coverage through Old Republic Insurance Company. (T1 at 7.)
 Otorrhea is an "escape of cerebrospinal fluid through the external auditory meatus due to fracture or other pathology of the temporal bone.” Dorland’s Illustrated Medical Dictionary 1293 (29th ed. 2000).
 Dorland’s Illustrated Medical Dictionary at 874, supra, defines "idiopathic" as “of unknown cause or spontaneous origin.” As used in the case law, the word "idiopathic" is used both to refer to an injury or disease of unknown cause or origin or to describe an injury resulting from a pre-existing or underlying condition, infirmity, or disease personal to the employee. Compare, e.g., Zweber v. Rosemount, Inc., 419 N.W.2d 70; 40 W.C.D. 771 (Minn. 1988); Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66; 40 W.C.D. 1130 (Minn. 1988); Spinks v. Ecowater Sys., 65 W.C.D. 32 (W.C.C.A. 2005).
 The record was left open at the conclusion of the hearing to allow the employer and insurer’s attorney to obtain supplemental opinions from Dr. Galbraith and Dr. Morgan. Dr. Galbraith’s opinion was filed with the Office of Administrative Hearing on June 6, 2008. The report was not marked as an exhibit.
 The sections in Larson's Workers' Compensation Law were renumbered in the 2000 edition. Former §§ 12.10 to 12.14 are now included in § 9.01. There was no change in the substantive content of this section.
 We note that in the court’s recitation of the facts, the court does not state the employee’s fall was due to an epileptic seizure. The opinion does, however, treat the employee’s case as one in which the epilepsy caused the employee’s fall.