Eastwood, Jayne and Clapp. The opinion of the court was delivered by Eastwood, S.j.a.d. Clapp, J.A.D. (dissenting).
The issue in this appeal is whether the resulting injury of an idiopathic fall on a concrete floor at appellant's place of employment is compensable.
There is no factual dispute. The petitioner had been a sufferer from epilepsy for a number of years. It is conceded that on the day in question he had a seizure which caused him to fall to the concrete floor in the plant, striking his head thereon, as the result of which he suffered a cerebral concussion. There is no evidence, nor does the employee contend, that the seizure was in any way caused by his employment. His position is that the concrete floor of the plant was a hazard of his employment; that it contributed to his injuries and the accident is, therefore, compensable.
The Deputy Director, Division of Workmen's Compensation, held that the claimant had suffered a compensable injury. On appeal, the Essex County Court reversed and found the petitioner's injuries to be non-compensable. 27 N.J. Super. 219 (Law Div. 1953). It is from the County Court's judgment this appeal stems.
The appellant contends that the concrete floor was a risk peculiar to his employment and that as such it produced a hazard which contributed to his injury regardless of the moving cause of the injury. It is argued that rulings in accord with his contentions are found in the English courts and that the philosophy of those courts has traditionally been
followed by our courts in workmen's compensation matters, and further, that there is support for his views in the holdings of other jurisdictions in this country.
The defendant contends that the petitioner failed to establish by a preponderance of the evidence that he suffered a compensable accident; that the concrete floor in defendant's plant was not a hazard of employment; that the fall was not a risk incident to petitioner's employment, and that his fall and consequent injuries were unconnected with his duties or services as an employee.
The compensability of injuries sustained as the result of an accident or untoward incident has, under our workmen's compensation legislation and decisions, been held to depend upon the affirmative finding that the accident which produced the injuries arose out of and during the course of employment. It has long been the holding that both factors must be answered in the affirmative to warrant an award. Bryant v. Fissell , 84 N.J.L. 72 (Sup. Ct. 1913); Hulley v. Moosbrugger , 88 N.J.L. 161 (E. & A. 1915); Colucci v. Edison Portland Cement Co. , 94 N.J.L. 542 (E. & A. 1920).
Authorities are in general agreement that an injury arises out of employment when, but only when, there is a causal connection between such injury and the conditions under which the work is required to be performed; that it is not sufficient in itself that the employee is at the place of employment at the time of the accident and performing his duties. In addition, it has been stated that it is an accident arising out of employment if it ensues from a risk reasonably incident to the employment, and if it is in some sense due to the employment. 58 Am. Jur., sec. 212, p. 720; Geltman v. Reliable Linen & Supply Co. , 128 N.J.L. 443 (E. & A. 1942). As stated by our Supreme Court recently in the case of Robertson v. Express Container Corp. , 13 N.J. 342, 345 (1953):
"The test defining when an accident arises in the course of the employment was laid down in Bryant v. Fissell , 84 N.J.L. 72 (Sup. Ct. 1913), and has since been consistently followed. It was
there stated '* * * an accident arises "in the course of the employment" if it occurs while the employee is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time * * *. A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service. * * * And a risk may be incidental to the employment when it is either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment.' In Beh v. Breeze Corporation , 2 N.J. 279, 282 (1949), we stated:
'There must be a causal connection between the condition under which the work is required to be done and the resulting injury. That injury must have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.'"
There is not any dispute about the petitioner's injuries being sustained during his employment in the sense of the hours of employment, and on the employer's premises, but there is no contention that the incident occurred during the performance of any task of employment. In fact, the employee concedes that at the time of the epileptic seizure he was doing nothing that was connected with his employment or which caused or brought about the seizure and admits that the seizure itself was the sole cause of his fall.
Whether or not injuries sustained by employees in falling are regarded as arising out of the employment depends generally upon whether the risk of injuries from such fall is one reasonably incident to the employment, and that question must be determined in the light of the facts and circumstances of each case. 37 A.L.R. 771. Where the conditions of the employment involve the risk of injury from falling as, for example, where work is required "* * * to be done upon a scaffold, or near the edge of a hatchway, or upon the driver's seat of a cab, or in close proximity to a furnace or other dangerous agency, an injury so received is compensable, notwithstanding the fall may have been caused by a sudden attack of sickness or by a pre-existing infirmity or disorder. * * * According to some authorities, however, where the fall results from a sudden seizure or a pre-existing
infirmity or disorder, the resultant injury cannot be considered as arising out of the employment, even though it may have been accentuated by particular conditions under which the work was being performed." 58 Am. Jur., Workmen's Compensation, sec. 271, p. 772; Rockford Hotel Co. v. Industrial Commission , 300 Ill. 87, 132 N.E. 759, 19 A.L.R. 80; Cox v. Kansas City Refining Co. , 108 Kan. 320, 195 P. 863, 19 A.L.R. 90.
All through the cases holding as compensable idiopathic falls onto dangerous objects, falls from heights and falls on level floors, there is present the requirement that employment conditions contributed some hazard which led to the final injury. 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. Rather, we look upon a floor as a surface or plane about or over which one travels in all facets of his daily life, occupational and non-occupational, and the presence of special perils in that surface depends upon the existence of unusual conditions of which rigidity or firmness is not, in our opinion, such a peril.
Hardness is a comparative thing and difficult of definition and more elusive in application to a rule which would impose liability or penalty where it was found to be a factor in the injury of one who, by reason of solely a personal circumstance or condition, came in contact therewith. Hardness or firmness alone does not present such an unusual condition or special circumstance as to constitute a special peril to body contact therewith by a person working in close proximity thereto. We have noted specifically that concrete floors have not been held to be a hazard of employment per se , entitling one suffering an idiopathic fall and injury to compensation.
In Stanfield v. Industrial Commission , 146 Ohio St. 583, 67 N.E. 2 d 446, 448 (Sup. Ct. 1946), it was stated:
"* * * In the instant case the floor was in no sense an added risk or hazard incident to the employment. The decedent's head simply struck the common surface upon which he was walking -- an experience that could have occurred to him in any ...