Sunday, June 13, 2021

It's not That the Wind is Blowin'

When I finished the substantive work on this post, it occurred to me that the Valcourt-Williams case and the "arising out of" requirement are sorta' like a hurricane. Comedian Ron White describes a man who remained in the Keys during an evacuation. He said he was essentially proving his virility and bravery. Mr. White notes that "it isn't that the wind is blowin." No, "it's what the wind is blowin." He suggests that "if you get hit with a Volvo, it doesn't really matter how many sit ups you did that morning." Keep readin', I'll try to come back to this.  

I am honored to be presenting with the esteemed William Rogner this week at the "second" (thanks to COVID) 29th Annual Claims Management Conference of the Workers’ Compensation Claims Professionals (WCCP). I naively thought that we might finish the conversation we started at the Current Trends hour at the Forum in April. Mr. Rogner in April assured us that the “arising out of” discussion was worthy of our immediate attention. He reminded that this began in earnest in April 2019 with Sedgwick CMS v. Valcourt-Williams, 271 So. 3d 1133 (Fla 1st DCA 2019), and despite our limited time there was some animated conversation. From his involvement in all things workers’ compensation, he related a perception that the court’s decision was presenting some interesting questions in various trials.

Having now looked through a number of orders, I am convinced that we will not “finish” anything Tuesday at the WCCP. We may put a bit deeper scratch on the surface, but I am convinced that we will not be able to be comprehensive in our coverage. In short, as Willy Wonka once said, “So much time and so little to do. Wait a minute. Strike that. Reverse it.” There is, indeed, so much to cover here.

First, the volume. I ran a search for “Valcourt” on the OJCC “Finals by Keyword” search tool. Did you know you can search all the judge’s trial orders? It is a critical tool for anyone engaged in litigation in this state. It is an ideal method to study the law and familiarize with decisions. Go to the “Orders Search” tab at www.fljcc.org to learn more. My search yielded 19 cases citing Valcourt-Williams. To say they were interesting is a gross understatement. They are, without exception, well written and fascinating analyses, some more in depth than others. 

Walking

In Santiago v. SBA Communications, OJCC No. 20-001834, the judge reminded that the claimant bears the burden of proof that an injury arose from and was in the course and scope of employment. The judge provides an extensive explanation of “course and scope” and the personal comfort doctrine. There is also explanation of the evolution of “arising out of” as regards workers with “pre-existing conditions or competing causes of the . . . injuries.” The judge noted some perception in the community that Valcourt-Williams should be “viewed narrowly,” but acknowledged it is an en banc decision of the court. The judge interpreted the law as presenting a two-part analysis, “whether the risk was introduced by employment or introduced personally.” The judge presented various possible interpretations of the Valcourt-Williams opinion, the precedent cited, and some points not mentioned by the court, such as the “neutral risk” alternative. In denying compensability, the Judge concluded that Valcourt Williams is “expansive” and any determination of compensability requires “occupational causation,” that is risk. The Judge denied compensability of an injury when claimant was "walking toward her work station . . . , twisted her right ankle causing her to fall."

If you told me you had time to read one decision, Santiago would be my recommendation. The judge carefully dissects "the 2012 troika" - Caputo v. ABC Fine Wine & Spirits, 93 So.3d 1097 (Fla. 1st DCA 2012); Walker v. Broadview Assisted Living, 95 So.3d 942 (Fla. 1st DCA 2012); and Ross v. Charlotte County Public Schools, 100 So.3d 781 (Fla. 1st DCA 2012). These are somewhat founded upon Lanham v. Department of Environmental Protection, 868 So.2d 561 (Fla. 1st DCA 2004). The decision also provides illumination of Sentry Insurance Company v. Hamlin, 69 So.3d 1065 (Fla. 1st DCA 2011). Some have said that Hamlin is a critical landmark on the path to Valcourt-Williams. These precedents are critical, as are some others mentioned below. 

In Long v. City of Melbourne, OJCC No. 19-016164, the judge discusses Valcourt-Williams and an idiopathic condition. The worker suffered a collapsed arch, and the risk was that “walking, jogging, or climbing stairs” could result in such injury. The judge suggests that any of these might be an occupational risk, but concluded the worker had to prove that some such risk was one the worker “would not normally encounter . . .during his nonemployment activities." Upon that point, the judge found the evidence unpersuasive and denied compensability.

In Young v. CEMEX, OJCC No. 19-005255, the judge denied compensability of an injury in which the worker's “knee popped while he was simply walking on level ground.” In doing so, the judge made credibility determinations and discussed the claimant’s testimony as to when the "pop" occurred, that is while pivoting, or thereafter while walking. Despite this, the order grants compensability through the date the employer/carrier filed a “notice of denial of the entire claim.” No benefits were awarded.

Injury in a Personal Vehicle

In Ballard v. Hardee Correctional, OJCC No. 20-021918, location also receives significant attention, including ownership/control of the parking lot in which the injury occurred. Having concluded that injury was not in the “course and scope,” the judge also analyzed “arising out of.” The judge concluded that the injury to claimant’s foot in his own vehicle was not a risk “that was not there in his non-employment life.” The judge noted the injury could have happened “in any of the countless places he may park his car.” Thus, the injury did not “arise out of” the employment.

In Marrero v. D.R. Horton, OJCC No 19-023521, the judge denied compensability. There is discussion of deviation from employment, but with the employer’s knowledge. The order illustrates essentially a factual dispute involving an off-premises motor vehicle accident, and a credibility analysis that ended in disbelief of the claimant’s testimony regarding the work-purpose of a trip. While "arising out of" is mentioned, this is really more of a credibility and/or "course and scope" decision.

Falls

Soya v. Health First, OJCC No. 20-008027 involved a fall for unknown reasons. The best testimony essentially supported that the fall occurred, perhaps because a shoe became momentarily “stuck” to the floor. The Valcourt-Williams defense regarding “arising out of” was raised. Possibly, the case might have turned on whether the worker had left and returned for personal items (the “forgetful claimant cases”), but the judge was not persuaded. The judge concluded that there was no “condition that would substantially contribute to the risk of injury,” and denied compensability. There is an interesting discussion of the distinction of Vigliotti v. K-Mart, 680 So. 2d 466 (Fla. 1st DCA 1996), which makes distinction as to the known or unknown cause of the fall, but which does not discuss the “major contributing cause” distinction of Vigliotti (the Vigliotti court reversed without addressing MCC, leaving that for the judge to decide on remand) mentioned in Santiago, supra.

In Silverberg v. Palm Beach School Board, OJCC No.19-006573, the judge concluded the worker was “at or on his usual desk” and “on his usual chair.” His leg became numb, and upon arising the numb leg “gave way.” Finding no “risk of an injury more than they would have in non-employment life,” the judge concluded the employee’s “routine movements” did not affect employment risk. The claim was deemed not compensable.

In Rodgers v. Winn Dixie Stores, OJCC No. 20-010060 the judge interpreted Valcourt-Williams as “strongly reaffirming the statutory requirement” of “arising out of,” and the “substantial() contribut(ion) to the risk of injury. The worker was on break (suggesting personal comfort, and the "course and scope" discussion). He remembered reaching for the refrigerator door, and then "being on the floor surrounded by paramedics." No doubt of the fall and the injury (that), but the judge concluded the issue was why there was a fall. The argument apparently centered significantly upon the fall being “unexplained” and cited Caputo v. ABC Fine Wine & Spirits, 93 So. 3d 1097 (Fla. 1st DCA 2012) and Ross v. Charlotte Public Schools, 100 So. 3d 781 (Fla. 1st DCA 2019)(essentially the same “troika” cited in Santiago, supra,) and Sentry Insurance v. Hamlin, 69 so. 3d 1065 (Fla. 1st DCA 2011). Rejecting that “no fault” is synonymous with “no occupational cause,” the judge denied compensability. This is seemingly a conclusion that the worker must prove the occupational cause element.

In Rosa v. Salvation Army, OJCC No. 20-008766, the judge suggests that Valcourt-Williams establishes “differing standards as to the degree” of “arising out of.” The judge noted that the employment must present a risk, but also one “claimant would not ordinarily be exposed (to) during his nonemployment life.” Thus, not merely risk, but "occupational risk." The parties argued based upon the judge’s decision in Santiago, supra. Concluding that there was credible evidence of something “sticky” on the floor, the judge concluded this claim compensable. One may wonder if sticky floors are not ordinary in nonemployment life, and others will consider whether the court’s interpretation in Vigliotti is relevant to such a conclusion.

In Ugalde v. Garden of Memories, OJCC No. 18-14602. The judge discusses at length the potential for risks in the workplace, in large part from Medeiros v. Residential Communities of America, 481 So. 2d 92 (Fla. 1st DCA 1986); Hernando County School Board v. Dokoupil, 667 So. 2d 275 (Fla. 1st DCA 1995) and precedent cited there (of note is Foxworth v. Florida Industrial Commission, 86 So. 2d 147 (Fla. 1955). The evidence demonstrated a fall and work, and the judge concluded the circumstance of fall was critical in the “arising out of” analysis of Valcourt-Williams. The point, according to this decision, is whether the work was a cause of the fall. The judge concluded it was in this instance and ordered benefits.  

In Galas v. Winn Dixie, OJCC No. 19-029119, the judge concluded that the accident was “pivoting on his leg to return to his work area.” Finding the worker credible, the judge concluded that time limits on the work at hand (unloading truck), a “pace that he would not use in his normal non-work life” satisfied the legal burden of an “increased risk() associated with his employment.  

In Tola v. Winn Dixie, OJCC No. 19-016663, there is an analysis concluding that the Valcourt-Williams court “receded from a number of prior holdings,” which effectively did not address “arising out of.” There is also discussion of idiopathic injury, and the same three cases cites elsewhere (“Caputo, Walker, and Ross”). Concluding that the worker was moving to the counter to assist a customer, and did not suffer an unexplained collapse, but stumbled and fell, the judge found the accident compensable. This might be a "pace" case similar to Galas

In Luraschi v. Blacktip Services, OJCC No. 19-028322, the judge concluded that the claim was compensable under the “premises rule” as the injured worker was on her way to the workplace, but was already on the employer’s premises when she encountered a “hazard sign” near where she fell and video evidence demonstrated a slip “at or near the area of the hazard sign.” The precise nature of the hazard is less than clear, but the sign seems to signal the existence of a hazard. The judge awarded benefits.

Rivera v. International Paper Co., OJCC No. 20-006618 concludes that the condition of the ground, the work area, created a risk “not something one does in non-employment life.” The decision includes discussion of many of the same precedents, and aptly notes “it is not enough to say a trip and fall at work is a ‘workplace trip and fall.’” The judge seems to conclude that characterizations and labels give way to the facts and circumstances; that is, a fall from work, not merely while at work (course and scope).

In Crouse v. Precision Mechanical, OJCC NO 19-031519, the judge cited Valcourt-Williams and the “arising out of” requirements. Noting that the worker fell, “while carrying a 20 foot long metal pipe over uneven terrain,” and concluded that this satisfied the risk requirement. Benefits were awarded.

Pushing/Pulling

In Wall v. Staff Zone, OJCC No. 19-032768, the judge provides a brief discussion of Vigliotti and Valcourt-Williams. The judge found that there was an event at work, pushing a pallet, and the medical evidence supported that was the major contributing cause of the onset of symptoms.  

Course and Scope

Castano v. Nobel Learning, OJCC Case No 20-006592 engages the Hamlin analysis and discusses Valcourt-Williams. It notably examines course and scope in regards to a firearm discharging and causing injury. The conclusion is founded on various conclusions regarding horseplay, personal comfort, and the presence of risk (the three-risk Hamlin analysis). The judge concluded that the accident “did not arise out of his employment.”

Rodriguez v. Sunrise Landscaping Contractors, OJCC No. 18-028462 (February 9, 2021) involved a man provided housing by the employer, and the so-called “bunkhouse rule.” The employer raised the “arising out of” defense. One of the more intriguing citations there is to Inmon v. Convergence Emp. Leasing III, Inc., 243 So. 3d 1046, 1048 (Fla. 1st DCA 2018). There an employee was struck while walking ”on US Highway 1.” The court focused upon the intoxication defense and the stacking of inferences (which the JCC in Rodriguez focused upon). However, no one raised the “arising out of” defense in Inmon. In Rodriguez, the judge concluded the accident was compensable, as it did “arise out of” the employment as the event “arose out of the location” of the employer-provided “bunkhouse.” This wording (“location”) might be confused for “course and scope,” but that is mere coincidence. 

In Anders v. Shawn’s Deli, Inc., OJCC No. 18-029274, the judge discusses Valcourt-Williams in the context of the “occupational causation” that is “a risk not existent in the claimant’s non-employment life.” Citing Hamlin, there is a review of the three categories of risk. Rejecting argument that evidence demonstrated a “criminal past,” the judge concluded that “some jobs are more prone to workplace assaults than are others.” The judge did not conclude that the workers’ duties “increase(d) his risk” of being shot, but that the “environment of the claimant’s employment” in fact did. Concluding this to be an occupational risk, the judge found the claim compensable and awarded benefits. In a different context, violence rather than fall, this analysis is reasonably consistent with that above in Rosa (sticky floors), Ugalde (coworker distraction), Galas and Tola (pace of work); Luraschi (unidentified but warned-of risk), Rivera (condition of ground), and Crouse (20 foot pipe).

Returning to Ron White, "it's (apparently) not that" the ankle's twisting, the arch is collapsing, the knee is popping, or the person is falling, its "why" those things are happening. In considering these various decisions, the "why" seems to be the critical element. Stairs, are something we may encounter anywhere, does that mean that stair climbing at work cannot cause an injury "arising out of" my work? The trial decisions above do not seem to suggest so. The evolution is before us however, and there is the potential for further explanation from the court and the judges.