Newly expanded definition of “idiopathic/personal” condition -- but applicable to a narrow range of “arising out of” cases
STEVEN SILBERBERG v. PALM BEACH COUNTY SCHOOL BOARD, FIRST DISTRICT COURT OF APPEAL, February 16, 2022. Case No. 1D20-75 (JCC Carol J. Stephenson)
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: Where no specific “pre-existing disease or condition” -- but something unique to employee -- promotes injury during ordinary movement (sitting, standing, walking) “at” work -- without material contribution to risk of harm “by” work, does injury “arise” out of the employment? No
Facts in a nutshell: Employee sat in normal chair for a short while; got up normally, but his leg ‘went to sleep,’ causing him to lose balance and fall. No “pre-existing condition” as classically defined -- a definition now revised.
Upshot: At the top of the §440-fence dividing compensability from non, the Court stretches “idiopathic condition” (generally, a pre-existing condition) to now include any personal bodily quirk, such as one’s leg ‘going to sleep’ (after a short time seated). Had industry contributed anything meaningful beyond literally insubstantial sitting, walking, etc., e.g., required prolonged sitting;
chair with uneven seat, or falling into a vat of acid, this would have
added necessary “arising” element found absent here.
Status: Not final until rehearing period expires, but important enough to put before you now. I will of course follow-up if the court changes anything.
Analysis: In an uncharacteristically folksy 20-page opinion -- with a dozen footnotes spanning multiple pages -- the Court tackled the extremely fine point: what to do where there is literally insignificant (no real) work contribution to the risk of harm -- but also very little personal or ‘idiopathic’ contribution. Very little -- but more than “nothing.”
Where employee is injured at work (course and scope of employment whether driving, drilling or on coffee break) -- but employment made no material contribution to risk of harm (versus immaterial, e.g., normal sitting, chair, and floor) -- even though employee may not have a diagnosable pre-existing disease or condition - if something unique to that employee promoted injury during routine movement, there is literally no work related cause of the accident other than simply being at work. Therefore, industrial ‘cost of a widget’ should not include treatment for fall caused solely by Claimant’s leg ‘going to sleep’ after five minutes of sitting -- coupled only with work-supplied gravity.
The opinion was an especially interesting read for me because the §440 ‘gate’ determining what arises out of employment and what is barred has always been a favorite subject, and, I was gratified to see one of my older leading cases play a prominent role in the Court’s reasoning, Market Food v. Levenson, 383 So. 2d 726 (Fla. 1st DCA 1980), cited and discussed at page 10, twice; page 11, thrice, and at page 13. The court there adopted terms like “non-employment life test” and other such concepts seen in the new opinion.
Levinson had pulled open a normal desk drawer; not heavy, not stuck -- and a severe pre-existing spinal condition became triggered -- the sole injury. His routine tortional movement could have happened anywhere, but: had the desk drawer been stuck, requiring him to really tug at it, there would have been a different outcome! Similarly, if Claimant here fell into a vat of acid, different outcome: the work would then have been the “major contributing cause” of injury despite pre-existing conditions -- including, now, emergent ‘quirky’ personal affectations.
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