Briefly Speaking (4/4/2022)

Steven Silberberg v. Palm Beach County School Board and York Risk Services Group

First DCA Judges: Tenanbaum, Thomas, Winokur                Order date:  2/16/2022

JCC Stephenson:   West Palm Beach District                         Order date:   11/26/2019

OJCC Case:   19-006573CJS                                                    Date of Accident:    2/21/2019

Appellate Order:   Click Here

Briefly:  Compensability in the age of Valcourt   

Summary:    The Claimant had been sitting at his desk at work when his leg went numb. When the Claimant stood, he lost his balance and fell to the floor, breaking his leg. Both the Claimant and the E/C obtained IMEs, who both opined that the leg numbness was caused by nerve compression that could happen anytime, anywhere. At trial, the Claimant made no claims that any of his work conditions, such as the floor, desk, or chair, increased his risk of injury. The JCC, following the DCA’s opinion in Valcourt-Williams, denied compensability of the claim, finding that the injury did not arise out of the Claimant’s work as a teacher, even though the Claimant’s fall occurred at work and while working. The JCC held that there was no evidence that the job environment in any way contributed to the risk of injury any more than Claimant’s non-work life. The Claimant appealed this decision and the DCA issued a lengthy opinion analyzing the case law on these issues. In doing so, they greatly narrowed the impact of Valcourt to apply only to personal comfort breaks. If a non-work factor contributed to an accident, the employee must demonstrate that the employment itself created the hazard or increased the risk of the accident. An idiopathic condition which results in injury to the worker does not arise out of employment unless the employment in some way contributes to the risk of accident or aggravates the injury. To determine if a claimant is performing work, the court talked about the “any exertion” test from Caputo where they state that any exertion in furtherance of work will do. The mundane exertion of walking to get around work is enough to establish a work cause because the “any exertion” test does not look at the quality or quantity of the activity. Even sitting at work qualifies as “any exertion” if an accident or fall occurs and there is no idiopathic condition. If an idiopathic condition is added to the examples provided by the Court, then the “any exertion” test no longer applies because there is more than one cause. In those cases, the increased hazard analysis is necessary to determine whether work or the idiopathic condition is the MCC. The DCA found that the JCC properly assessed whether the Claimant’s work could be the preponderant cause. The Claimant brought to work his inherently personal physiological tendency that his leg would go numb due to his vasculature. The Court noted that “there is no doubt” that the sitting was his exertion for work, that sitting was a work activity; however, to establish that sitting was the MCC of his fall as compared to his idiopathic condition, the Claimant needed to present evidence that sitting was an exertion or strain more or different than what he would encounter in his non-work life, and he did not. Therefore, because there was no increased hazard, the DCA concluded his accident did not arise out of employment and was not compensable.


Zahava Soya v. Health First, Inc. and CCMSI

First DCA Judges: Roberts, Ray, Bilbrey                                   Order date:  2/21/2022

JCC Dietz:   Sebastian/Melbourne District                               Order date:   12/10/2020

OJCC Case:   20-008027RLD                                                     Date of Accident:    12/13/2019

Appellate Order:   Click Here

Briefly:  Compensability in the age of Valcourt   

Summary:    The Claimant was leaving work for the day and walking across the carpeted floor when she unexplainably tripped and fell. No abnormalities were noted on the work surface, which was slip-resistant. The JCC denied compensability of the claim on the basis of that the “injury did not arise out of employment because an accident is compensable under Valcourt only if the employment necessarily exposed the claimant to conditions that would substantially contribute to the risk of injury to which the Claimant would not normally be exposed during her non-employment life.” The Claimant appealed and the DCA found that the increased hazard analysis applied in this case, as in Valcourt, was incorrectly applied. According to the DCA, the increased hazard analysis should only be applied where there is a contributing cause to the accident that is outside of employment (in Valcourt, the claimant’s dog). In the case at hand, there was no known cause of fall, so no application of the increased hazard analysis was warranted. “Clumsiness is covered.” From Judge Bilbrey’s concurring opinion, the following is an important takeaway: “Workplace slip and falls, as well as other common workplace injuries, remain compensable . . . so long as the injury ‘arises out of employment’ no matter if the claimant was ‘literally performing work at the time’ of the injury.”


Felix Aquino v. American Airlines and Sedgwick CMS

First DCA Judges: Osterhaus, Rowe, Winokur                        Order date:  3/9/2022

JCC Medina-Shore:   Miami District                                        Order date:   12/2/202

OJCC Case:   20-005859SMS                                                   Date of Accident:    3/18/2019

Appellate Order:   Click Here

Briefly:  Compensability – Going or Coming Statute

Summary:    The Claimant had clocked out from his job and was walking through airport security toward the parking lot shuttle stop when he injured his leg. E/C denied compensability of the claim and at final hearing, the JCC found that the injured worker’s claim was not compensable per the “going or coming” statute – “An injury suffered while going to or coming from work is not an injury arising out of and in the course of employment . . .” Claimant appealed, arguing that his accident occurred while crossing ground between two parts of his employer’s premises – the work site and the airport employee parking lot, and that the public areas should have been considered part of the premises. Claimant’s injury occurred in a public area, essentially like a public sidewalk, over which the Claimant’s employer had no control. The fact that employees journeyed across public areas of the airport and parked in a non-exclusive lot did not convert these public areas into employer’s premises. The DCA affirmed the denial of compensability.


Kelly Air Systems, LLC & AmTrust North America of Florida v. Dorinda Kohlun

First DCA Judges: Long, Osterhaus, Winokur                         Order date:  3/16/2022

JCC Clark:   Ft. Myers District                                                  Order date:   3/10/2021

OJCC Case:   20-019782FJC                                                      Date of Accident:    8/6/2020

Appellate Order:   Click Here  

Briefly:  Compensability – Going or Coming / Traveling Employee

Summary:    The Claimant was employed as an air conditioning service tech and his responsibilities included performing service calls within a four-county area. The employer provided a company vehicle, over which the employee had exclusive ability to drive to and from work and allowed for incidental personal trips on the way to and from work, like gas and grocery trips, per the employer handbook. Use of the company vehicle was not required, but was provided for convenience. At the time of the accident, the Claimant was traveling from his final service call and had clocked out by reporting to his supervisor that he had finished work for the day. The JCC found the accident and subsequent injuries to be compensable.  The going and coming rule generally finds that injuries that occur while an employee is traveling to or from work are not compensable even where the employer has provided transportation if the transportation was available for the exclusive personal use by the employee. The E/C appealed this decision and the DCA reversed. The DCA stated that ”exclusive personal use means that an injury is not compensable where the employee’s transportation is available exclusively to that employee and that the employee can use the transportation as if it were personal property for the purpose of going to and coming from work.” And although the injured worker could qualify as a traveling employee, he was not in “travel status” at the time of injury as he was not being compensated for travel to and from work, thus his accident/injuries were not compensable.