HGK Landmark Alert 2-28-2022

Court drops the other shoe on extremely close “arising out of” cases, paired with the 2/16/22 Silberberg v PBCSB decision

  • Fall at work with zero material work contribution
  • But also, zero worker contribution, equals…
  • Compensable! “Clumsiness is covered.”
    • Note: Though general applicability of these two cases is limited by their very narrow facts, they justify these companion alerts because they set the inner and outer limit of “what is a compensable accident.”



Subject:  “Arising out of work performed in the course and the scope of employment.” §440.09(1), Fla. Stat.; see also § 440.02(19), Fla. Stat. (defining “injury” in terms of an accident “arising out of and in the course of employment”); § 440.02(1), Fla. Stat. (defining an “accident” in the context of chapter 440 as “only an unexpected or unusual event or result that happens suddenly”).


Issue/Answer: Where neither a specific “pre-existing disease or condition” nor any personal QUIRK of employee (e.g., leg went to sleep as in Silberberg) contributes to risk of harm from a simple fall at work -- but also ZERO employment contribution -- does injury “arise” out of the employment? YES! Simple clumsiness does not qualify as enough of a personal pre-existing "quirk" (author's term).


Facts in a Nutshell: Employee simply trips and falls at work. Nothing unusual about the floor, etc. -- but also -- nothing unusual about the employee proven by either side.


Upshot:  Where NEITHER party presents proof of the cause of injurious fall at work (i.e., in the COURSE AND SCOPE of employment), Court holds: ‘negative tie’ (author’s term) goes to the claimant, and injury will be deemed to ARISE out of employment.  

In short: unexplained fall (arguably due to clumsiness), in the course and scope of employment is compensable. Note the closeness of ‘clumsiness’ to one’s leg falling asleep, deemed a quasi-personal condition in Silberberg, whereas innate or transitory clumsiness does not so qualify.  I told you these were close!  It may help to remember, as Court noted: “Work connection determines coverage …. not fault.”


Status: Not final until rehearing period expires, but important enough to put before you now.  I will follow-up if the court changes anything.


Analysis: In what was probably designed as a matched pair, the Court let the other shoe drop in Zahava, which references the 2/16/22 SILBERBERG opinion recently reported on. The court here treats a small variation in facts, placing it on the other side of the top of the fence dividing compensable cases from non: what to do where the work contributes zero to the risk of claimant’s harm from injury suffered ‘at work’ – – but where claimant also contributed exactly zero to the fall at work. In other words, unexplained fall, no known cause but for possible clumsiness. 


Channeling another, older ‘negative tie’ case when there was a statutory ‘presumption’ that a claim arises out of employment (not cited in the opinion, Hacker V. St. Petersburg Kennel Club, 396 So.2d 161 (Fla 1981)), the court now rules the same way even in absence of the presumption. 


Recall in SILBERBERG an exceedingly small cause contributed by the employee, his personal quirk or propensity for having his leg ‘go to sleep’ in a very short time, was the sole contributing risk factor, i.e., cause of the fall. As such, the takeaway in these ultra-close cases: where neither party submits evidence of a cause for fall at work, it’s compensable. However, where employer proves there is no work cause but that the employee contributed a very small personal cause (very small, but more than nothing), the major contributing cause of the fall will be deemed personal, even though we don’t use the term ‘major’ contributing cause because there was NO other material cause. In other words, something as small as one's leg "going to sleep" qualifies as a personal contribution, but a mere half step less (no pun intended) , i.e. transitory or even congenital clumsiness, is just not quite enough.  

For the Very Interested: BOLO: I have had a case pending for some two years now, one that may or may not become an important “third shoe” to drop on these cases which refresh the threshold of compensability, mine dealing with the concept of “arising out of” in the going and coming cases.  Fingers crossed!

For questions or concerns email me at: [email protected]

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