Case Law Update March 2022
Updated 3-18-22
| Aquino v. American Airlines/Sedgwick, (Fla. 1st DCA 3/9/22) Compensability/Course and Scope/Coming and Going The DCA affirmed the JCC’s determination that the claimant’s accident/injury was not compensable under the going and coming rule. As a baggage handler, the claimant alleged his injury occurred after clocking out, walking through the terminal towards a shuttle bus stop and injuring his calf stepping off of a curb. The DCA analyzed the JCC’s application of the going and coming rule, and rejected the claimant’s argument that the rule didn’t bar coverage because the entire area from work site to employee parking lot should have been considered the employer’s premises. Although the DCA recognized there are exceptions to the rule (i.e. special hazard) the premises rule requires the employer exercise “actual domination or control” over the area. The DCA affirmed that the claimant traversing a public area not owned, maintained or leased by the employer did not convert the area into an employer controlled site. They further rejected the claimant’s argument that the E/C waived their right to deny compensability. Although the E/C initially provided treatment, they denied the claim less than 14 days later. Interestingly, a footnote cited to the recent Silberberg case, saying it was unclear that even if the accident occurred on premises, it would be compensable, noting 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”(also citing to Valcourt-Williams.) Click here to view Order Santiago v. SBA/Travelers (Fla. 1st DCA 3/16/22) Compensability/Arising out of The DCA reversed and remanded for consideration under the recent “arising out of” Soya case (“clumsiness is covered”), which the JCC did not have for his consideration. While not listed in the opinions, the underlying Order under review is similar to Soya (a stumble or trip for no reason/no articulated workplace connection) with the added element of a shoulder injury allegedly resulting from raising the arm during the fall, but with a potential prior shoulder injury). Stay tuned. Click here to view Order Lakin v. Hernando County Sheriff/Fla. Sheriffs Risk Mgmt. Fund, (Fla. 1st DCA 3/16/22) Presumption/Pre-Employment Evidence of Hypertension The DCA affirmed the JCC’s denial of compensability, finding he properly relied upon the EMA’s testimony that the claimant’s elevated blood-pressure reading at the time of his pre-employment physical was evidence of hypertension, and that such was sufficient evidence to rebut the presumption. The DCA rejected the claimant’s argument that only a “diagnosis” of hypertension can negate the presumption of compensability, noting that “any evidence” of hypertension can suffice. They found that although the prior Harper case affirmed a JCC’s finding that similar prior elevated blood-pressure readings were not sufficient to overcome the presumption, different facts and different medical opinion distinguished the two cases. Finally, the DCA rejected the claimant’s argument the EMA opinion should be stricken per Daubert, as the EMA’s opinions were based on sufficient facts, data and opinions and were the product of reliable principles and methods. Click here to view Order Kelly Air Systems/Amtrust v. Kohlun, (Fla. 1st DCA 3/16/22) Compensability/Going and Coming/Traveling Employee The DCA reversed the JCC’s finding of compensability. The claimant performed service calls for an A/C repair business in a four-county area. He had the exclusive ability to take his employer-provided vehicle to and from work and to make incidental personal trips. At the time of the accident he was traveling home from his final call and had clocked out. The DCA first examined the “going and coming” section of the statute, which excludes as compensable accidents incurred going to and from work, where the employer provided transportation was available for exclusive personal use (absent a special errand for the employer). The DCA rejected the JCC’s analysis that the going and coming rule did not apply, because the exclusive personal use of the vehicle did not allow travel outside of work. They noted this claimant’s exclusive personal use for travel to and from work was sufficient under the statute. Under the traveling employee section, a traveling employee’s injuries must arise out of work and not involve travel to and from work. The DCA rejected the JCC’s finding of compensability based upon his finding that the claimant was a traveling employee, noting that the relevant question is whether the accident occurred in “travel status.” Finding the claimant’s accident occurred during uncompensated (clocked out) travel not connected to employment, they reversed and remanded. Click here to view Order |