In April 2019, I posted Personal Comfort? Testing Compensability (April 2019). That post discusses an en banc decision of the Florida First District Court of Appeal in Valcourt-Williams v. Sedgwick Claims Management. The dispute there regards a telecommuting employee who had an office in her home. Taking a break one morning, she went to the kitchen for a beverage, tripped over her pet dog, and fell. The injured worker in that case has sought review by the Florida Supreme Court.
There are various points of interest in the Court's analysis. And, in conversations since that time, I have had multiple lawyers contend that this decision is not really about telecommuting, but about whether the work performed "exposes a claimant to conditions which (sic) substantially contribute to the risk of injury." The majority in Valcourt-Williams concluded that the fall was not compensable because the risk of tripping existed on the premises regardless of her working there. In other words, she might have tripped over the same dog in the same kitchen when she was off work.
The Florida Court explained that there are two requirements for compensability, that "injury or death arising out of work performed in the course and the scope of employment." (Emphasis added) Section 440.09(1), Florida Statutes. Thus, the two requirements are both "location" and "activity" related, that is "course and scope." However, there is also the requirement that the work performed leads to the injury, "arising out of." As the work performed by Ms. Valcourt-Williams was not shown to contribute some "increased risk" of a fall, as compared to her life generally, the Court concluded the accident was not compensable. Notably, some judges expressed other thoughts. The decision is worth reading.
The case came back to mind when the Kentucky Court of Appeals released Bluegrass.org v. Higgins in June.
Ms. Higgins worked with patients suffering from mental illness and "spent 60-70% of her work time in the field and the remainder working from home." Her occupation was "a mobile case manager." She had an office "set up in her house," which was neither inspected or controlled by the employer (in Valcourt-Williams the employer had approved a home-office workplace).
On June 17, 2017, Ms. Higgins had been in the field and returned home for lunch. She clocked out using a computer program, ate, and "clocked back in." Ms. Higgins then "did some computer work," and "spoke to a client." As the call was concluding, she arose from her chair "took a couple of steps, and fell." She testified that her reason for arising was to get her keys and drive to pick up a form for the client with whom she had just been speaking. Thus, she was "on the clock" at the time of the fall in her home.
The trial judge found several questions relevant.
"whether Plaintiff was considered to be on the operating premises of the employer, and"
"whether Plaintiff was performing a service to the employer under the going and coming rule."
The Court clarified that "perils encountered during travel to and from work are no different from those encountered by the general public." Thus, they "are neither occupational nor industrial hazards." This is the "going and coming rule" which holds that "injuries that occur during travel to and from work generally are not compensable."
The trial judge concluded that Ms. Higgins "did not sustain an injury in the course and scope of her employment, as the injury did not occur on the operating premises," and the "going and coming rule does not apply.”
Kentucky has an administrative appeal process. In Florida, the trial judge's decision is reviewed by the Florida First District Court. In Kentucky, the first level of review is by the Workers' Compensation Board. The Board reversed the trial judge. It reminded that an idiopathic fall, from a "purely individual cause" to which the "work does not contribute (to) independently," is not compensable.
The Board addressed the "going and coming rule" and concluded that it does not apply in this instance because Ms. Higgins was working, was clocked in, and had not left to retrieve the form when fell. Therefore, the Board held that "the going and coming rule does not apply as a matter of law in this instance." The Board concluded that the fall occurred "in the course and scope of her employment," in rejecting the trial judge's "going and coming rule" analysis.
The Board instructed the ALJ to "determine whether the accident occurred due to an unexplained or idiopathic fall or work-related incident." The fall is "unexplained" if the cause cannot be determined sufficiently." In that instance, the Kentucky law says there is "a rebuttable presumption that an unexplained fall which occurs during the course of employment is work-related. The authority explaining that presumption, Workman v. Wesley Manor Methodist Home, 462 S.W. 2d 898 (KY Ct. App. 1971) was premised in part on the "statutory admonition to construe the law liberally." Thus, if "unexplained," the fall is compensable unless the employer meets its burden of demonstrating that the accident is not.
The Court in Kentucky also explained in Workman that "idiopathic" is a cause. Thus if the fall is idiopathic, it is not "unexplained." Instead, it is explained by the idiopathic, "personal risk," explanation. This may correlate with the pet dog cause. Falling over a pet is not "unexplained." Falling because a normal everyday body movement is not necessarily "unexplained." This analysis is discussed in Acker v. Burlew Construction, 654 So.2d 1211 (Fla. 1st DCA 1995), which was cited in Valcourt-Williams, both in the majority and dissenting opinion. A fall caused by some known personal condition is not compensable. Leon County School Bd. v. Grimes, 548 So.2d 205 (Fla, 1989).
In Kentucky, the employer sought review of the Board's determination, asserting that legally Ms. Higgins was "in transit" when the fall occurred. The Court of Appeals was not persuaded to accept this re-asserted and explained the "going and coming" argument. The Court of Appeals affirmed the Board's interpretation of the law and the instructions to the trial judge on remand.
The analysis of the Board and Court was thus focused upon whether the fall was "unexplained" or "explained." Presumably, if Ms. Higgins had tripped over her dog, the accident would thus be "explained" and the analysis would shift to the other issues raised by the court, essentially whether the fall was a "work-related incident." That would necessarily follow a path analyzing both the arising out of and the course and scope of, perhaps similarly to the Court's analysis in Valcourt-Williams v. Sedgwick Claims Management.
However, whether Ms. Higgins' fall is or is not compensable begins with an analysis of whether the cause of that fall is or is not determinable. Recently, I engaged in a conversation with an outstanding intellect that practices in workers' compensation. He asserted that much of the law has to do with "lines" that the law, or the legislature, draws. Through the conversation, I discerned that there may or may not be universal agreement as to where and when lines are established, but the role of the law is to do so. And, in that process, there may be outcomes with which any individual may take issue, or in which find disappointment. However, those are nonetheless the lines that define what is or what is not workers' compensation.
The Kentucky Court analysis is interesting, and it reinforces the importance of two points. First, the parties must recognize the legal issue that is of importance. In Higgins, the Court concluded that focus on the "going and coming" was misdirected or misdirection. Second, having identified the legal issue, it is incumbent upon the parties to present evidence in support of their respective conclusions. Finally, the "lines" of the law will assign to one side or the other the obligation of a burden of proof. Thus, the law ascribes to one or the other the burden of proving, and the logic of those lines is for the legislature to define.
