Personal Comfort? Testing Compensability

On November  4, 2016 Judge Wil Condry issued a summary Final Order in the case of Valcourt-Williams v. Sedgwick Claims Management. On April 5, 2019 the Florida First District Court of Appeal reversed the decision in an en banc decision. There are those who believe that this decision will have serious implications for Florida workers' compensation. 

There are several points of interest. First, the injured worker is coincidentally employed by a company that adjusts workers' compensation claims. Second, the jurisdiction of the case is in Florida, but the accident occurred in the Claimant's home in Arizona. Third, the injured worker was a telecommuter, working remotely pursuant to a written agreement with the employer. Fourth, the opinion employs the process of en banc proceedings. And, finally, the opinion includes two dissenting opinions that raise intriguing points, one being the value of marketplace predictability in workers' compensation. As an aside, the Court's decision comes just over two years after the notice of appeal was filed January 5, 2017. 

The facts of the case are not complex. The Claimant worked in Arizona on a 04:00-12:30 workday (to conform to the time zone in Florida). She equipped a work space with desk, etc. and regularly worked there pursuant to the written agreement with the employer. On April 27, 2016, she took a break in the morning and visited her kitchen for a beverage. There, she retrieved a cup, turned, and tripped over her pet dog. She fell to her knee and injured herself. 

The real dispute in the case is centered on the risk of the fall. The trial judge concluded that by written agreement the workplace had been "imported" into the Claimant's home. He held the injury compensable under the personal comfort doctrine. The trial judge had determined the case to be compensable essentially because it had occurred during work hours, in the workplace, and on a break that was of value to both the employee and employer. Twelve of the Court's judges disagreed that the injuries were compensable and reversed the trial judge's decision. Two judges wrote dissenting opinions. 

The majority concluded that the worker's location was not relevant. Many in workers' compensation today discuss the potential for increased prevalence of telecommuting, but the Court stressed: 

There are two primary statutory requirements for compensability of a work injury in Florida (and similarly in various other states' statutory frameworks), found in section 440.09(1): "injury or death arising out of work performed in the course and the scope of employment." (Emphasis added). 

The Court's majority concluded that "the relevant risk was that the claimant might trip over her dog while reaching for a coffee cup in her kitchen." And, it concluded that tripping "risk exists" in Claimant's home every day she is in the home, whether working or not. Therefore, the Court concluded that "the risk did not arise out of the employment." The Court cited multiple prior decisions in support of that legal conclusion.

As to "arising out of," the Court concluded that "the employment must, in some way, contribute an ‘increased risk’ of injury peculiar to that employment." Thus, the accident must be in the course and scope and arise out of employment, and the personal comfort doctrine is applicable to the "course and scope" element. Multiple citations were provided to appellate decisions regarding falls and other conditions that were "in the course and scope," but in which "arising out of" was nonetheless deemed to be absent. The Court also readily conceded that precedent on this distinction has "not always been consistent" (citing various instances in which "arising out of" was seemingly discounted). 

Thus, the decision reinforces that both "course and scope" and "arising out of" employment must be proven. Critically, the Court clarified that the personal comfort doctrine is applicable to only the "course and scope" element. 

Judge Bilbrey "strongly" dissented. He contends that the conclusion of non-compensability exposes employers to potential tort liability. Notably, there is skepticism that it does so in these facts of home-based telecommuting, but his statements seem directed in that regard at the broader potentials for traditional employment. That employment may evolve into various forms, some will say, will increasingly demand legal consistency from our courts. Judge Bilbrey says that "decades of precedent" are reversed by the majority's decision. And, he concludes that the majority's holding "takes the benefits of the workers’ compensation system from many workers." He contends those workers were protected through prior interpretations, and that they are without recourse in workers' compensation as a result of this decision. He likewise cites multiple precedent in support of his contentions. 

Judge Bilbrey argues that this case presents "bad facts" and that thereupon the Court "make(s) bad law." He argues that any trip and fall during work hours in the workplace should be compensable (whether from a dog, or "if she had slipped on a liquid substance on the floor, on a lose [sic] kitchen floor mat, or over her own two feet)." He disagrees with the majority's dissection of precedent, and denies any historical inconsistency with the precedent he cites. Instead, he concludes that before this decision a fall at work "was undoubtedly compensable," and finds the court's majority decision a departure therefrom. Judge Bilbrey disagrees with the majority's analysis of "arising out of" and contends that the majority is changing "the previously settled law on 'arising out of.'” 

Judge Bilbrey accuses the Court of exceeding its purpose. He asserts that the court's holding "goes well beyond what the E/C argued." He contends the role of a court is to determine the issues that it is brought, rather than to bring issues unmentioned by the parties. The judge asserts that the real issue in the case is the personal comfort doctrine and determination of what kind of "risk" the pet dog presented. He explains there are three categories:

He asserts that the Employer argued that the "risk of tripping over her dog was a personal risk." Accepting that pled argument, he says, would  similarly result in reversal of the trial decision. If the Court is to reverse, he argues, that is the appropriate grounds as that is the issue brought by the parties. But, the decision of the majority instead "cause(s) a paradigm shift in Florida workers’ compensation law." This decision, he contends, defines “arising out of” to mean only “directly caused by.” He asserts that the majority conflates "course of employment" and "arising out of," and its decision improperly limits the personal comfort doctrine's application to only "course of employment."

Judge Bilbrey argues that this "paradigm shift" (this change) brings uncertainty to the Florida workers' compensation system. He notes that Florida workers' compensation is close to a $4 billion industry. He says that "markets crave certainty," and this decision instead creates doubt. He questions 

Judge Makar also dissented, and joined in Judge Bilbrey's conclusions. He contends that the only issue is "whether the workplace accident that occurred during an authorized comfort break arising from an authorized work-at home arrangement." His analysis is focused upon the "course and scope" and personal comfort doctrine. As the worker was not precluded from having a dog in the workplace, his conclusion is that the dog was an accepted and foreseeable risk. He expresses that "foreseeability and employer control - are at issue in this case."

Judge Makar provided statistics regarding the foreseeability of pets in the home. For these, he cites websites of the American Pet Products Association and American Veterinary Medical Association. He cites magazine articles regarding a practice of taking pets to work. From these provided statistics, he concludes that the presence of pets is something the employer "should reasonably foresee." 

Judge Makar contends that the majority decision thus concludes that "accidents that occur in workplaces with pet-friendly policies are not covered under Chapter 440 and the injured party’s remedy is a personal injury lawsuit against the company, the dog owner, and perhaps others involved." He contends that this is contrary to "the point of the workers’ compensation system."

In the end, it is clear that the majority sees this fact pattern as an "arising out of" analysis and the dissenting judges instead see a "course and scope" analysis. The majority consensus is that the injury was in the "course and scope," and it accepts the "personal comfort" analysis. But, the majority concludes that the work itself must nonetheless cause the injury. The dissent instead perceives an expansion of various decisions addressing ideopathic conditions which by happenstance result in workplace symptom onset; it contends that the doctrine applicable to such is expanded by the majority to include non-ideopathic "accidents" like falls. The dissent may even foreshadow such expansion to the traditional employer workplace. 

Some may suggest that each argument is defensible with the help of the various appellate decisions cited. Perhaps it is telling that the compensability interpretation lacks clarity in 2019? After all, both terms are included in section 5866(9), Fla. Stat. (1935). These two terms have been bedrock of Florida workers' compensation for 84 years, since its very inception. Is it troubling that both majority and dissent can each cite persuasive precedent in support of their respective conclusions? Is it concerning that such definitions are subject to (at least perceived) lack of clarity 84 years into this Grand Bargain? Does that breadth of potential interpretation affect risk managers, claims adjusters, attorneys, and others in the community?

Returning to the points of interest mentioned at the outset. telecommuting is here, and its strengths and benefits may be particularly helpful to service industries. The various states themselves define what accidents are subject to the jurisdiction of the state, and potentially this case could have been litigated instead in Arizona (site of accident) or even the home office location of the employer. Careful counsel will consider such choice of jurisdiction issues. Though not compensable in Florida, might it have been so under some other jurisdiction's law? Finally, the market should expect that appellate decisions will bring clarity and consistency, that expectation is heightened for en banc proceedings. 

Regardless, there is likely merit in discussing the value of marketplace predictability in workers' compensation. Every lawyer respects precedent and craves consistency, when that supports her or his current client's victory. When precedent does not support the lawyer's position, counsel will argue mightily to distinguish or overturn precedent. Some perceive this as grounds to derogate lawyers, courts, and the process. But, the art of argument and distinction is a lawyer's purpose and prerogative. It is the lawyer's job to advocate for that lawyer's client, and the specifics that client faces. Derogating lawyers for seeking a positive outcome for her or his client is disingenuous; that is their very purpose. 

The law thus cannot necessarily look to attorneys for consistency and clarity, their role is to advocate. The marketplace should be able, however, to look to courts for clarity and consistency. Whether one agrees or disagrees with Judge Bilbrey's substantive analysis in dissent, we should all perhaps periodically return to the question of "how should" any judicial decision "be seen by a claimant, employer, claim’s adjuster, attorney, or JCC?" We should all question our clarity, our explanation, and our consistency. What has occurred, "what is so," may be easily explained, but the clarity of our effort as attorneys, adjusters, risk managers, and trial judges at explaining what that means, the "so what?" is critical to our roles, our community of workers' compensation, and our state.