Sean Jordan, Associate, Orlando

The poor doomed turkey is often the theme of Thanksgiving tables. In addition to ending up as the main course, you may find turkeys on decorations, platters, paper napkins, and more. Not often, though, do you get to see “Tom the Turkey” featured in Florida Workers’ Compensation case law.  In honor of this upcoming holiday feast, I have prepared a three course meal of Thanksgiving themed case law updates for your pleasure (tryptophan not included).

1^ST COURSE: Thanksgiving Travel

Will you be catching a flight or hitting the road this Thanksgiving? The Thanksgiving travel season starts Friday November 16, and airports around the country are expecting a record number of passengers.  The busiest travel days are expected to be Friday, Nov. 16, Wednesday, Nov. 21, and Sunday, Nov. 25.  While your travel plans may put you in the middle of the busiest travel days ever, the following traveling employee found himself out in the cold without benefits after a fall during the Thanksgiving break was rightfully denied.

In James Winalis, Claimant, v. Access Door & Glass, Inc., Employer and Summit Claims Center, Carrier/Servicing Agent, 2011 Fla. Wrk. Comp. LEXIS 6788, OJCC # 10-016622KAS, the Claimant drove the Employer’s truck from Florida to New Jersey to work a job in New Jersey for the Employer. The Claimant was paid a flat fee for the job and he was responsible for paying his expenses out of the flat fee. Claimant completed his work in New Jersey on the Tuesday before Thanksgiving; and he was not to return to the New Jersey job site before returning with the truck to Florida.

The Claimant then received permission from the Employer to use the Employer’s truck to drive from New Jersey to Michigan so Claimant could spend Thanksgiving with friends and family. It was undisputed that Claimant was to pay for all of his own expenses for the Michigan trip. The evidence also supports a finding the Claimant was to pay for gas and lodging for the entire trip – from Florida to New Jersey and back – out of the flat fee he was paid for the New Jersey job.

1. Traveling Employee Analysis

For purely personal reasons the Claimant decided to travel to Michigan to spend Thanksgiving with his family before returning to Florida. JCC stated while it was understandable the Claimant decided to make the day-long drive home, the coincidence of how it lined up with the holiday and increased convenience of having a shorter trip to Michigan from New Jersey was not of consequence when determining compensability.  Additionally, the fact the Claimant asked to use the work vehicle to make that trip, and the Employer agreed, was not of consequence because if the Claimant had not visited his family, he would have returned directly to Florida.

 

Unlike a flight attendant obligated to remain away from home between assignments, the Claimant’s presence in Michigan at the time of the accident was purely voluntary, and the use of the company vehicle was solely for his convenience, not that of the Employer. The Claimant could have rented a car, taken a bus, or gotten to Michigan any number of ways without using the Employer’s vehicle to do so.

Further, no requirement of the E/C led the Claimant to Michigan for Thanksgiving, once the Claimant left New Jersey and headed to Michigan he was no longer in traveling employee status, and any injury he incurred was purely personal. As a result the travel was ruled to be purely personal in nature, and not travel necessarily incident to performance of his job responsibilities under 440.092 (4).

1. Work Related Activity When Injured

The claimant also argued even if he was not a traveling employee, he is covered by the dual purpose  doctrine because at the precise moment of his injury he was performing an inspection and climbing into the truck to secure a ladder and thus protecting the property and interests of the Employer. The Claimant’s testimony regarding those inspections and mechanism of injury was rejected. The Claimant testified he arrived in Michigan on Wednesday evening and elected to spend the rest of that day and night at a friend’s house instead of traveling the additional 25 minutes to spend that night with his sister. As an aside, the JCC noted had the Claimant gone directly to his sister’s house there would have been no need to do any inspection on Thursday morning, as he would not have had to do so until he left for Florida at the end of his trip.  Since he was under no obligation to perform an inspection of his truck when he did, there was no dual purpose to his actions.

1. Special Hazards Exception/Positional Risk Doctrine.

The claimant’s argument under the special hazards exception/positional risk doctrine was he would not have had to perform a pre-trip inspection if he was in his personal vehicle; his personal vehicle would not have placed him five feet off the ground; and the metal tailgate was a condition related to the work vehicle and not a personal one, therefore the injury is compensable. The Claimant also testified that the combination of the metal tailgate and the cold, wet conditions in Michigan were part of the reason he slipped.

This argument could have merit, but only if Claimant’s description of the accident is accepted. There was no evidence as to the weather conditions at the location where Claimant would have been on Thanksgiving morning had he returned directly to Florida from New Jersey. Although Claimant testified that the weather in New Jersey was wet and cold, he would not have been in New Jersey two days after the job was completed had he returned directly to Florida.

1. Other Arguments of the Claimant

The Claimant argued that at the time of injury he was essentially back on the same route back to Florida he would have been on had he not gone to Michigan and therefore the injury should be compensable. This argument must fail as the Claimant failed to present credible evidence Michigan is geographically located between New Jersey and Florida. This argument also failed because at the time of the injury Claimant was not on his way back to Florida, but to his sister’s house in Michigan for Thanksgiving. Had the Claimant been required to remain in New Jersey over Thanksgiving so he could report to work in New Jersey on Monday, then arguably the traveling employee doctrine might allow for compensability as the Employer agreed to let the Claimant use the truck. The JCC stated ‘might’ because traveling from New Jersey to Michigan for dinner would appear to be a substantial deviation under the case law. In any event, it is undisputed that on November 24, 2009 the New Jersey job was over and there was no reason for the Claimant to remain up north as there would have been no work for him to do there.

In addition Claimant argued essentially that the fact E/C paid benefits up to the 118th day and then denied the claim once surgery entered the picture is evidence that Claimant suffered a compensable work related injury. Where, as here, an E/C acts in good faith and provides benefits during the 120 day statutory pay and investigate period, the JCC was am loathed to find that the timely filing of a denial of a claim is evidence which ipso facto renders the claim compensable, and will not do so.

Conclusion

Claimant did not meet his burden to establish the compensability of his November 26, 2009 injury.

2^ND COURSE: Leftovers do not count toward the AWW.

While we all wish we could earn holiday pay while posted up horizontal on the couch in our comfy sweatpants, JCCs are not keen to order a lower AWW based on the claimant’s lost time due to the fall holiday (fall-iday?).

In David McClendon, Employee/Claimant, vs. C & J Timber, Employer, and Bituminous Insurance Company, Carrier/Servicing Agent, 2004 Fla. Wrk. Comp. LEXIS 692, OJCC Case No. 04-011300JJL, the Claimant was injured on 12/22/2003.  There was a dearth of documentary evidence supporting the Claimant’s actual earnings except for the Claimant’s testimony.  JCC found the Claimant’s testimony credible and determined he generally worked 60 hours a week and would have earned between $600.00 to $800.00 per week on an average, with some weeks earning over $900.00 and even up to $1,200.00. However, he submitted no corroborating evidence to support his estimated earnings.  The Claimant also testified that the weeks prior to his accident there was equipment failure causing a reduction in work hours and during that time he worked part-time for another employer during the down time. 

The Employer/Carrier in this case likewise failed to introduce any clear evidence on how the Carrier calculated the Claimant’s AWW. The 13 week wage statement was filed into evidence, but since the Employer was out of business and did not testify in the cause, there was no way to determine whether the wages contained therein were accurate. The Adjuster originally set the Claimant’s AWW as $600.00, it then increased to $690.00 after reviewing the wage statement, and then decreased to $337.61 after the adjuster conferred with counsel.   

The Judge of Compensation Claims has broad discretion in determining a fair and reasonable calculation of AWW under section 440.14(1) (d), Florida Statutes. Id. The burden is on the Claimant, not the Employer/Carrier to establish AWW. Western Auto v. Moore, 567 So. 2d 972 (Fla. 1st DCA 1990). The burden can be met by the Claimant’s own testimony so long as the testimony is competent, substantial and consistent with logic and reason.

The JCC found the Claimant here did not work “substantially the whole of 13 weeks” immediately preceding the accident because many weeks there was down time due to equipment failure and the Thanksgiving holidays.  It was also held the Claimant was not a seasonal worker; there was no evidence presented of a similar employee, or of a contract for hire either. Therefore, section 440.14(1) (d), Florida Statutes (2004), required that “the full-time weekly wages of the injured employee shall be used to calculate the AWW.” Jackson v. Hochadel Roofing Co., 657 So. 2d 1266 (Fla. 1st DCA 1995).

Considering the Claimant generally worked approximately 60 hours per week, only the weeks before the claimant’s accident, which fell into that range were to be considered; and the weeks the Claimant did not work due to the Thanksgiving holiday and equipment failure were to be ignored as they were unlike his usual 60 hour work week.

After considering the testimony presented in this cause, the JCC found the Claimant’s AWW should be no less than $ 600.00 per week as first calculated by the Carrier after considering all the testimony, and evidence.

3^rd COURSE: Thanksgiving

If you have hosted a Thanksgiving you know the preparation for the big event doesn’t begin with just the food in the 24 hours leading up to the feast.  It begins, maybe a week in advance, when you are pulling out dusty serving dishes to be washed, counting napkins and silverware, trying to find the extra leaf for the table, bathing the dog, and doing all the dusting, vacuuming, and mopping you have neglected since the last holiday you hosted. Well, these back-breaking holiday chores inevitably cause even our most agile-footed claimants to take a tumble aggravating or exacerbating work-related injuries.

In Walter Jay Pollard, Employee/Claimant, vs. Arbor Tree Management, Inc., d/b/a Suncoast Pontiac , Employer, and Amerisure Insurance Company, Carrier/Servicing Agent, 2005 Fla. Wrk. Comp. LEXIS 1179, OJCC Case No. 05-004920DBB, the Claimant was employed as an automotive technician working on cars and trucks on the date of accident of August 11, 2004. On that date he twisted his right knee getting out of a car he was working on, resulting in injury. Employer/carrier accepted the accident and injury as compensable and provided medical and indemnity benefits.  After his August 11, 2004 industrial accident an MRI was performed that was read as showing a rupture of the ACL. Dr. Shapiro performed ACL repair of claimant’s knee on September 17, 2004.

At his deposition, the claimant testified after his ACL surgery he had on and off sharp pain in his knee. On November 24, 2004 the Claimant was mopping the floor in the kitchen getting ready for Thanksgiving when the sharp pain occurred causing his knee to give out, and slip and fall on the wet floor.

Dr. Shapiro testified as a result of his fall the claimant fractured his patella and recommended that claimant undergo open reduction and internal fixation to repair it. Dr. Shapiro testified that the fractured patella was related to claimant’s surgery that he had for the August 11, 2004 industrial injury, as it is a complication that can happen from the surgery.

Dr. Shapiro testified patella fractures resulting as a complication of the ACL surgery is supported by the literature in orthopedics. Claimant underwent an E/C IME with orthopedic surgeon Dr. Alexander. Dr. Alexander wrote a report indicating the fracture would not have happened if it was not for the ACL injury and ensuing reconstruction, but after talking with counsel for E/C change his opinion that MCC was not the industrial accident.

After reviewing all the evidence, the JCC found the August 11, 2004 industrial injury and resulting ACL repair is and remains the major contributing cause of claimant’s patella fracture, resulting surgery, continuing need for treatment, and disability. The opinion of Dr. Shapiro was accepted over Dr. Alexander to the extent they differ in reaching this decision, although Dr. Alexander did agree with Dr. Shapiro in most respects, and agreed regarding MCC before Dr. Alexander changed his opinion.