Recently, the First District Court of Appeal issued an opinion in Soya v. Health First, Inc., Case No. 1D21-59 (Fla. 1st DCA Feb. 22, 2022), that added some much needed clarity to the “arising out of” requirement in Florida Workers’ Compensation Law. These waters, calm for years until significantly churned up two years ago and left murky by Sedgwick CMS v. Valcourt-Williams, 271 So.3d 1133 (Fla. 1st DCA 2019), now are substantially more clear again with regards to what constitutes an accident that can form the basis of a compensable claim.
By way of history, on April 5, 2019, the DCA released an “en banc” opinion on rehearing (meaning that all of the DCA’s eligible judges participated in the ruling) in Sedgwick CMS v. Valcourt-Williams that resulted in the denial of workers’ compensation benefits to a remote-working insurance claims adjuster who tripped over her pet dog while on a “personal comfort” coffee break in the downstairs kitchen of her own home. In the seven-page majority opinion, the court addressed whether the injury was “arising out of” the injured worker’s employment, ultimately deciding that benefits should be denied, because Ms. WIlliams’ employer “did not contribute to the risk” that she would trip over her dog while working from home. Rather, the Valcourt-Williams majority held that “an accident becomes the carrier’s liability only if the employment necessarily exposed the injured worker 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.” In the process, the DCA expressly overruled several prior cases and – painting with a very wide brush – appeared to have tacitly overturned several other cases that lawyers and judges had been relying on for many years as established law guiding whether carriers were liable for certain accidents.
After Valcourt-Williams, nearly all insurance carriers – and many judges – were denying carrier liability for accidents where the accident’s cause was unknown, on the basis that it “could have happened elsewhere” besides the workplace. The Valcourt-Williams majority opinion was heavily criticized, though, with many agreeing with the dissenting opinion of Judge Ross Bilbrey. The majority opinion has been a source of controversy and confusion amongst the lawyers and judges in the workers’ compensation community since it was released.
Most notably, in Silberberg, an appellate opinion released just a week before Soya, the DCA affirmed a JCC’s denial of benefits where the JCC “followed” Valcourt-Williams in her order. Mr. Silberberg was a teacher who, while at work, did nothing more than go to stand up in an ordinary way from his ordinary chair under other ordinary circumstances, only to have his leg fall asleep and cause him to fall to the ground and suffer injury. The JCC concluded that there was no evidence that the “physical surroundings on the job in any way contributed to the risk of an injury more than they would have in [his] nonemployment life.” The DCA therefore concluded that, because Mr. Silberberg did not establish that his sitting for work was anything more than “an incidental trigger” of an idiopathic response, and because the same activity outside of work was just as likely to have been that trigger, his sitting at work was not the preponderant cause of his fall. Interestingly, the DCA observed in Silberberg that there “has been some misunderstanding with regard to [the] scope and significance” of Valcourt-Williams. As a harbinger of things soon to come in Soya, the DCA downplayed the importance of Valcourt-Williams, calling it a “quite narrow” decision and characterizing it as involving “an otherwise unremarkable trip-and-fall-at-work accident that happened to occur during a comfort break and involve the employee’s own dog as a tripping hazard.”
A week after Silberberg was released, the DCA released Soya, purporting to resolve any remaining controversy regarding the scope of Valcourt-Williams. Therein, they confirmed that the increased hazard analysis under Valcourt-Williams applies only where there is a contributing cause outside of employment (e.g., the dog). Its application in Soya, where the cause of the fall was entirely unknown, was “overbroad” and therefore was reversible error. Indeed, the three-judge panel – which included Judge Bilbrey – agreed with Ms. Soya that Valcourt-Williams in fact overruled only four “outlier” cases and was otherwise limited in its application. The Court explained that, where an accident’s cause is unknown, it is error to deny compensability on grounds that the accident “could have happened elsewhere.” Indeed, citing Florida Supreme Court precedent, the Soya Court announced that even simple “clumsiness [resulting in injury] is covered.” In reaching this conclusion, the panel in Soya ratified the applicability of 2012’s Ross v. Charlotte County Public Schools and its progeny, adopting one of Ms. Soya’s central arguments, i.e., that, other than in very limited circumstances not applicable here, the award of compensability in Florida’s workers’ compensation system is not based on an analysis of fault.
Relying on the 25-year old case of Vigliotti v. K-mart Corp., the DCA in Soya also rejected the Employer/Carrier’s argument that Ms. Soya was not “actively engaged” in work at the time of her accident. Rather, they agreed that walking through the Employer’s building on her way out of work was an “unavoidable part of her job.” To conclude otherwise, the Court acknowledged, would create the opportunity for injured employees to file civil tort suits against their employers for injuries they have suffered during working hours, while they are on the employers’ premises, but when they are not literally performing work. Neither the Vigliotti Court nor the Court in Soya saw anything in any amendments to Chapter 440 that indicated that the Legislature intended to broaden tort liability of employers in this fashion and thus open the proverbial floodgates to civil litigation outside the workers’ comp system.
In summary, Soya made clear that the broad language used in the Valcourt-Williams opinion did not represent the sweeping change that some thought it to be. Rather, the Court agreed that Valcourt-Williams is actually narrow in application and did not apply to the facts of the instant case, where Ms. Soya’s unexplained fall happened during an “unavoidable” part of her job. Ms. Soya will now be able to receive workers’ compensation benefits that had been improperly denied, and carriers across the state will no longer be able to escape liability for such benefits merely because an injured worker could have encountered a similar risk in his or her ordinary life.
Importantly, though, as of this writing, neither Soya nor Silberberg is yet fully final (even though the DCA has already referred to Silberberg in a footnote in Aquino v. American Airlines, Case No. 1D20-3777, a public parking lot case, for the premise that compensability may be denied in walking-at-work accident cases where an idiopathic condition, such as a “ruptured Achilles tendon,” has contributed to the accident). In Silberberg, the unsuccessful appellant filed a motion for rehearing, and the defense responded on March 9th. The motion remains pending. Similarly, in Soya, the Employer/Carrier’s attorney filed two motions: one, to have the three-judge panel reconsider the outcome, specifically challenging how the majority opinion’s pronouncement that “clumsiness is compensable” can be harmonized with the broad-brush holdings of the en banc court in Valcourt-Willams; and, two, to have the full appellate court hear the matter en banc, which would allow all of the DCA judges (including most of those that participated in the V-W opinion) to weigh in on this subject. Stay tuned for the outcome of Bouayad, too, which involves similar issues and is scheduled for oral argument before the DCA with the same two attorneys (Mike Winer and Bill Rogner) from Soya on April 7, 2022.
Ken Schwartz, Esq. Winer Law Group