The appellant urges us to adopt a judicial presumption that an unexplained fall occurring in the course of employment “arises out of his employment,” as that expression is used in sec. 102.03 (1) (e), Stats. The answer to this proposal is contained in
Nielsen v. Industrial Comm.
(1961), 14 Wis. (2d) 112, 118,
“Human experience does not attest all accidents or a sufficient share of them, occurring on an employer’s premises, arise out of the employment as that term has been defined by this court. If such a working tool is to exist in the fact-finding process, then the legislature should create it as some other states have done.
“The second reason why no presumption exists is found in the statute itself. In cases involving traveling employees, sec. 102.03 (1) (f), Stats., creates the presumption, ‘Any accident or disease arising out of a hazard of such service shall be deemed to arise out of his employment.’ See Hansen v. Industrial Comm. (1951),258 Wis. 623 ,46 N. W. (2d) 754 . This statutory presumption applies only to traveling employees.”
A related expression is found in
Rick v. Industrial Comm.
(1954),
“The fact that the presumption was created expressly for travelers would seem to negate the recognition of a general presumption that unwitnessed death arises out of employment.”
If a presumption such as the appellant proposes is to be adopted, it is clear under the
Nielsen Case
and the
Rick Case
that it is the legislature which must create it. Indeed, we have often held that the burden of proving all the facts essential to recovery in a workmen’s compensation case rests on the applicant.
Conley v. Industrial Comm.
(1966), 30 Wis. (2d) 71, 85, 86, 140
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N. W. (2d) 210;
Van Valin v. Industrial Comm.
(1962), 15 Wis. (2d) 362, 364,
The commission found that Mr. Kraynick’s death did not arise out of his employment and that the applicant had failed to prove the cause of the fall. Upon review, we must determine whether credible evidence or reasonable inferences exist which sustain the findings of the commission.
Grant County Service Bureau v. Industrial Comm.
(1964), 25 Wis. (2d) 579, 582,
Mr. Krayniek was performing services incidental to his employment at the time of his fall. Nevertheless, upon the facts and circumstances presented in this case, the applicant is required to prove that the cause of the fall was not solely idiopathic in nature.
Cmelak v. Industrial Comm.
(1965), 27 Wis. (2d) 552, 556,
We have considered the testimony of both Dr. Monroe and Dr. Kagen and do not believe that their evidence barred (1) the commission from finding that the applicant had failed to prove the cause of the fall or (2) the circuit court from concluding that the cause of the fall
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was idiopathic. Mr. Kraynick’s previous medical record includes head injuries, cirrhosis, jaundice, and alcoholism, as well as some history of blackouts. With that medical background and upon all the facts of this1 case, the commission was not required to find that the fall arose out of the employment. There is applicable the language of this court in
Peterson v. Industrial Comm.
(1955),
“The fall was not, in the strict sense of the word, ‘urn-explained’ because the previous head injury and resulting severe headaches provided as logical an explanation to account for the fall as would the employment in which the employee was engaged at the time of the fall.”
The appellant also contends that the hard tile floor on which her husband fell was a zone of special danger. When an employee’s work requires him to be in a hazardous situation, an injury which he sustains may be said to arise out of his employment. This is sometimes referred to as the “positional-risk doctrine.”
Volunteers of America v. Industrial Comm.
(1966), 30 Wis. (2d) 607, 612, 613,
“I think that the harder the surface he falls on, the more severe the injury; and I think if you have a cork or wooden floor — you can suffer a severe injury on a wooden floor, but you are not as apt to with a — as with a hard ceramic tile floor.”
This court has held a concrete stairway to create a zone of special danger.
Cutler-Hammer, Inc., v. Industrial Comm.
(1958), 5 Wis. (2d) 247,
There are numerous cases in other jurisdictions which have also denied compensation for idiopathic falls on level floors.
Borden Foods Co. v. Dorsey
(1965),
The South Carolina supreme court covered the argument well in its decision in
Bagwell v. Ernest Burwell, Inc.
(1955), 227 S. C. 444, 454,
“We are not prepared to accept the contention that, in the absence of special condition or circumstance, a level floor in a place of employment is a hazard. Cement floors or other hard floors are as common outside industry as within it. The floor in the instant case did not create a hazard which would not be encountered on a sidewalk or street or in a home where a hard surface of the ground or a hard floor existed.”
Mrs. Kraynick’s counsel also suggests that in addition to the hardness of the surface there was a zone of special danger created by the fact that the area was cluttered with a table and a raised pallet platform. The photographs in evidence in this case contradict the suggestion that those physical objects made the area hazardous.
By the Court. — Judgment affirmed.