On September 28, 2023, the Superior Court, in an unpublished Decision, found in favor of the respondent and denied a Claim Petition based upon the idiopathic defense (Duane Sykes v. George Harms Construction Company, Inc., No. A-3320-20 (App. Div. 2023)). The idiopathic defense is a defense where the employer must meet its burden of proof. The injury or incident occurs during the course of employment. The defense rests with the second part of a course of scope of employment issue, that is, does the injury or disability arise out of employment.
The facts of the case established that the petitioner, a 48-year-old male, who was a 28-year tenured employee of the respondent, loss consciousness at work on April 30, 2019. At the time he lost consciousness, he was operating a 56,000 lbs. excavator on a bridge construction project. The petitioner was removing asphalt from the shoulder and depositing it in a dump truck.
The petitioner testified that a piece of asphalt that he was clawing broke loose, causing the excavator to buck backwards and the front part of the excavator to lift up. This caused his body to move backwards within the cab. He testified, “the next thing he remember was speaking with a doctor several hours later.” The petitioner believes he struck his head on something in the cab and lost consciousness. The petitioner has a history of seizures, the last of which occurred about one month before the accident.
In contrast to the petitioner’s testimony, the dump truck driver that the petitioner was working with on the date of the accident testified that he witnessed no jerking movement of the excavator. Instead, the excavator was moving smoothly, until it continued to move pushing barriers into the roadway. The driver went to check on the petitioner and found him “passed out.” He was sitting upright as he normally would, but his head was hanging down towards his chest. In fact, the petitioner’s forearms were on the arm rests, and his hands were still on the joystick. He was not visibly injured. The CEO of the respondent testified regarding the excavator. He described the interior of the cab, and the evidence revealed it was extremely unlikely that the petitioner would have struck his head on any portion of the cab, causing a loss of consciousness.
In denying the claim, the Judge concluded that there was no evidence that there was a risk associated with the job causing the petitioner’s loss of consciousness, but rather the loss of consciousness was idiopathic and purely personal to the petitioner. The Judge reviewed the cases supporting the proposition that physical injuries sustained subsequent to an idiopathic event at work causing a loss of consciousness are compensable. However, the facts of this case failed to reveal any adequate proof that the petitioner sustained any physical injuries in the cab to his shoulder or back after he lost consciousness.
The Appellate Division affirmed the decision of the Judge finding that there was ample evidence supporting the Judge’s factual findings and his application of the law.
Comment: The idiopathic defense is a difficult one to mount for the employer. The injury, incident or disability occurs during work hours, but the employer must prove that the claim arises from a risk totally personal to the individual and not arising out of the job effort or circumstances. The eyewitness testimony in this case which directly contrasted with the petitioner’s version of events, helped the Juge dismiss any connection between the operation of the excavator and petitioner’s loss of consciousness and/or physical injuries subsequent to the loss of consciousness. This case does reiterate, however, the longstanding proposition that physical injuries sustained during the course of one’s job duties subsequent to an idiopathic event (fainting and falling injuring ones back, hip or neck for example) are indeed compensable.