4/9/2019; Both types of case notices: (1); Significant HGK Appellate Outcome, and (2) A Landmark Alert! Just a couple of weeks after advising I will be sending out "LANDMARK ALERTS" in major breaking cases and/or Significant HGK Appellate Outcomes, up pops the first landmark case in perhaps a year, along with one of my own. In chronological order;
(1) Significant HGK Appellate Outcome; TPD owed during ‘120 day pay and investigate’ period? Maybe in another case but not in this case.
The Court’s opinion helps clarify the slippery intersection of the ‘120 day pay and investigate' rule and TPD. Notwithstanding the "all benefits/as if" statutory language, entitlement is not automatic simply because 120-day rule was still running during period of alleged entitlement, Payne v. AllStaff Inc/Summit, No. 1D17-4650, 2019 WL 1142698 (Fla. 1st DCA, Mar. 13, 2019) (HGK/defenseprevails: full written opinion)
The Case: E/C conditionally picked up alleged exposure case and started some benefits but denied TPD allegedly accrued during the 120-pay-and-investigate period, even though some work restrictions were given. Case was timely controverted. The JCC's order suggested it was okay to withhold payments that might have been due on the case if investigation reveals it was never really compensable.
The Appeal: Accepting that her condition was never compensable, Claimant appealed denial of TPD benefits arguably accrued during running of the ‘120-day pay and investigate’ period under statute requiring "all benefits and compensation" be paid "as if the claim has been accepted as compensable." Claimant’s argument seemed to suggest automatic entitlement to benefits claimed during the 120-day period.
The Outcome: The court first agreed with Claimant the JCC erred in suggesting retrospective denial of benefits might be okay where condition was timely controverted as not compensable, but held Claimant still has the burden of proving entitlement, and Claimant's "vague and unpersuasive testimony" coupled with absent documentation her post-injury wages were diminished because of workplace injury supported denial of TPD.
Bottom line: The court rejected Claimant's assertion TPD benefits are virtually automatic during 120-day pay-and-investigate period: while it is true they are payable "as if" the claim were compensable, Claimant evidently confused "eligibility" with “entitlement." Claimant was eligible to prove entitlement to TPD during running of the 120 day period even if her condition was never compensable, i.e., that the restrictions were given in relation to the alleged but ultimately denied injury – – but there was still the burden to prove entitlement to TPD, which does not automatically flow just because MMI has not been attained and/or 120 period was in progress during period of alleged entitlement.
HGK Notes: Claimant was perhaps overconfident given the difficulty generally, since publication of Wyeth/Pharma Field Sales v. Toscano, 40 So.3d 795 (Fla. 1st DCA 2010), in defending TPD claims where there are at least some restrictions and some lost earnings (i.e., even under normal circumstances, much less here, under Claimant’s 120-day case “all benefits/as if” reasoning). However HGK has either defended denial of TPD or reversed award of TPD in two worthwhile (full) opinions within this general timeframe, where either a claimant -- or JCC -- did not adhere to the basic prerequisites. See Pierre v. R & S Assembly Inc., 31 So.3d 901 (Fla. 1st DCA 2010); Southeast Milk/Zurich North American v. Fisher, 135 So.3d 582 (Fla. 1st DCA 2014).
(2) LANDMARK ALERT! En Banc Decision (all 1st DCA Judges involved): Work from home accidents -- sharply divided court does spring cleaning!
Where work-from-home adjuster was on a (permissible) coffee break in her kitchen but tripped over her dog reaching for coffee, Court held: while injury occurred during the ‘course and scope’ of employment – regardless of where work is being performed, the precise risk causing harm must still arise out of work-induced conditions that substantially contribute to risk of injury -- and tripping over one’s dog while working at home did not involve an employment-induced risk of harm. Injury did not arise out of employment. Ten– to-two split decision (one judge recused), with two especially strong and detailed written dissents. Not yet final (and possible Supreme Court intervention down the road). Sedgwick CMS and the Hartford/Sedgwick CMS v. Valcourt-Williams. 1D17-96 April 5, 2019 (D/A 4/27/2016) James N. (Jim!) McConnaughhay of McConnaughhay, Coonrod, Pope Weaver, & Stern, P.A., Tallahassee, and Elizabeth V. Bogle, Pensacola, for prevailing E/C.
FACTS/OVERVIEW: Work-from-home employee-adjuster trips over own dog while getting a cup of coffee in her own kitchen, while on the clock. It has been a while since the courts have given us a landmark "arising" versus "course and scope" ruling. The Supreme Court itself has intervened in a few of these in the past -- and with two strong written dissents here, this one has all the characteristics of being such a case. So, stay tuned -- for the year or more that might take, but under our system, this is the law for now!
THE HOLDING IN A NUTSHELL: With 10 judges in the majority, the take away for now is this: the question is not whether the home environment becomes the work environment, with all risks appertaining thereto the same as if water were spilled on the floor (as the JCC ruled) but rather; whether claimant’s work, wherever it is performed, necessarily exposes the claimant to conditions which substantially contribute to the risk of injury. The court ruled the ‘risk’ of tripping over one’s own dog while reaching for coffee in one's kitchen exists whether one is working or not working -- it was the same before she was hired and it will remain the same after her employment ends -- and as such: the risk of claimant’s particular harm did not arise out of the employment (origin of the risk of harm) -- even though it did occur in the course and scope (claimant was where she should've been, doing what she was supposed to). Put another way: there must be occupational causation in addition to simply being in the course and scope of employment.
Brief discussion: Fainting and falling at work, wherever the work is, is generally not compensable: but some sort of gas released into work vents, causing fainting, exposes the claimant to conditions which substantially contribute to the risk of injury.
The court admitted sending mixed signals in the past and gave examples of their prior inconsistency (including some cases that alarmed the undersigned when they came out, particularly the "on break" cases!). The most important thing the court has done was make absolutely clear (“if any ambiguity remains, we hope to remove it now”); the personal comfort doctrine does not trump "arising out of,” which is where several earlier cases went wrong (i.e. they seemed to suggest anything that happens during a personal break is compensable, which is not the law). Under this holding it would seem an airplane or automobile crashing into the home, causing injury, would likewise not be a compensable injury (unless it was an employer's vehicle idling outside and then slipping into gear by mechanical defect, or coworker’s car coming to pick her up).
For the very interested: The two dissenting opinions argue, persuasively, this was a ‘neutral’ risk injury (no particular pre-existing risk beyond the fact an earlier injury was aggravated, i.e. nothing contributing to the risk of falling), which is always compensable if in the course and scope of employment, in that the dog is legally presumed part of the worksite, just as if a coworker or boss’ dog is in the company break room (or even her own dog provided this was not forbidden, in the dissent's view). The effect, according to the dissent, could have massive implications for most of Florida's employees, by requiring that injuries occur while the employee is actually working – – something the majority specifically addressed said was not what they held.
It is interesting to speculate however: how will the majority rule if it was "bring your pet to work day" and claimant tripped over her own dog in the office break room. Strict construction of the opinion would suggest that is not compensable The dissent argued that by approving of Claimant's home with no restrictions,E/C accepted that work environment as is: and that work environment has a dog and it, no different than if it had a spill on the floor: and injury occurring in the work environment during working hours thereby arose out of and in the course and scope of employment. The presence of the dog was a neutral risk: had the dog bit the claimant, the dissent reasoned that would more be more consistent with personal risk (spilled fluid on the floor would be a work-generated risk).
The dissent also Issued a "be careful what you wish for" cautionflag: removal of compensability from "workplace slip and falls” for no readily identifiable reason likewise removes immunity and could open the employer to civil liability (although one would have to show negligence somehow attributable to the employer). The undersigned suggests the following example, covering "all the bases," to help illustrate:
- Assume claimant was required to wear a specialized international ‘beeper’ of the employer's design and manufacture: claimant goes for coffee in her kitchen (or to the bathroom, etc.) and while there, the battery ignites causing burns.
- The at-home "personal comfort" break accident is clearly in the ‘course of employment,’ and here, risk of harm also clearly “arose” out of the requirements/implements/conditions of the employment.
- However: the employer would not necessarily be immune from civil liability in this scenario because it occupied ‘another’ relationship with the employee, namely, designer/manufacturer of a beeper that has nothing to do with work as an adjuster but was created in another facility of the employer, etc., thereby invoking ‘unrelated works’ basis for breaching immunity.
- However, instead of beeper malfunction; had the claimant bent over to reach a roll of toilet paper that fell and rolled away, and a pre-existing back condition ‘went out,’ that "personal" risk of harm would not be compensable under the old "McCook" case in the absence of material workplace contribution to the risk (Southern Bell Tel. & Tel. Co. v. McCook, 355 So. 2d 1166 (Fla. 1977)).
- Sharper distinction: a closer case was made out in the undersigned's case argued before the Supreme Court, Levenson v. Mkt. Foods Distributors, 405 So. 2d 974 (Fla. 1981) (facts reported at District Court level, Market Foods v. Levenson, 405 So.2d 974 (Fla.1981)), where claimant with pre-existing stenosis was pulling open a normal desk drawer at home, when his stenosis flared up and became acutely symptomatic. The court held there too; routine torsional movement (i.e., no ‘sticking’ or exceptionally heavy drawer) was no different from any activity in his “nonemployment life” and not a material risk of harm imported by the work for this at-home worker: award reversed. (The facts and holding are so similar, it is surprising the case was not cited by the majority as further precedential support).
- The undersigned wrote a ‘Worker's Compensation Section News & 440 Report’ article after that case and two other early cases in which he was invited to participate (and argue) at the Supreme Court level as an amicus curiae.
- The first, cited by the dissent, Leon Cty. Sch. Bd. v. Grimes, 548 So. 2d 205, 206 (Fla. 1989), reversed award to claimant who got up at her desk when her (obviously personal) leg brace collapsed, causing injury: the Supreme Court ruled “we would be amending the purpose of chapter 440 to allow compensation to injured employees without regard to whether industry brought about the injury.”
- The second, University of Florida v. Massie, 602 So.2d 516 (Fla 1992), involved stress allegedly aggravating a pre-existing disease: the Supreme Court followed Grimes (and relied, with multiple citations, on an earlier Supreme Court case of the undersigned involving ‘heart attack;’ Richards Department Store v. Donin, 365 So.2d 385 (Fla.1978).
- Given the obvious confusion all around, the undersigned proposed in his article, a ‘one-size-fits-all’ global rule for "arising out of," one similar to the rule announced by the court for these more circumstantial/situational cases, but one actually applicable to every kind of risk imaginable, i.e., heart attack, lifting “with a bad back," or even stalking assassin (those cases are out there): where claimant carries a personal/pre-existing risk of harm (of heart attack, stalker, etc.), a risk essentially the same at home or at work: before an implicated injury can arise out of the employment, the work must make a substantial contribution to that personal pre-existing risk of harm, i.e., versus insubstantial, minute or trivial. Today that rule is in large part embodied by the "MCC/50%" requirement, albeit requiring a bit higher work contribution than envisioned by the undersigned’s proposed rule, and that nettlesome expert-established "50%" versus the more judicially-ascertainable "substantial” versus insubstantial test.
Wrapping it up with another useful prior case: In one of the most colorful (but also tragic) cases with which the undersigned has been involved early in his career, esteemed Richard Sicking represented a claimant working on Everglades levees who briefly departed from the ‘course and scope of employment’ to make his way out onto a beam over a spillway in order to catch a turtle but fell into the water and drowned in a whirlpool beneath the spillway. Mr. Sicking's argument was simple and direct: danger was all around this worksite, and claimant’s was but an insubstantial deviation resulting in injury arising out of and in the course and scope of employment. My argument, which prevailed, was: injury did not actually arise out of employment: yes, potentially hazardous conditions were all about, but they were adequately addressed by the fenced-in catwalks there for workers’ safety: Just as a flight attendant is generally safe inside a modern airliner, safety cannot be assured if the attendant elects to go sit out on the wing and ‘catch some rays’ during a longhold in the taxi line. Bottom line: specific risk leading to death did not arise out of employment, even if claimant's deviation from the course and scope of employment was "insubstantial." (Compare, claimant takes a smoking break by a work truck that sustained a gash in its fuel tank from a large rock: fumes ignite and claimant is burned: the holding there should be: small deviation or personal comfort breaknotwithstanding; risk of injury clearly arose out of employment, whereas a different result might obtain if the claimant took that truck on a lark and in a high-speed run, having departed from his employment, hit the large rock.)
One more distinction to be aware of: if claimant was driving on a residential street and suffered from a seizure and slumped forward onto the steering wheel causing cervical sprain as his vehicle rolled gently to a stop in someone’s yard, the sprain would not be compensable; work made no material contribution in that case just as the majority held in this case – – but if the car rolled into a tree, which caused hip injury, the injury would likely be compensable because the work put such claimant in position, i.e. driving dangerous instrumentality, at risk of greater harm from a personal pre-existing condition, no different than if he dropped into a vat of acid upon losing consciousness at work, both of which “expose the claimant to conditions which substantially contribute to the risk of injury.”