The Florida First District Court of Appeal issued a decision on February 16, 2022 in Silberberg v. Palm Beach County Schools, Case number 1D20-75. It is a very detailed return to the topics of "course and scope," and "arising out of" that underlaid the Valcourt-Williams decision. See Personal Comfort? Testing Compensability (April 2019). The Silberberg case is mentioned in It's not that the Wind is Blowin' (June 2021), regarding various cases citing Valcourt-Williams. See also Preservation and Interpretation (July 2021).
The Court's en banc decision in Valcourt-Williams v. Sedgwick has given the Florida workers' compensation community much about which to think. It's not that the Wind is Blowin' (June 2021). There has been much discussion about the scope of that interpretation. Some see it as "Changing everything," and others not so much. Silberberg provides a detailed explanation of "arising out of" as well as its interaction with Major Contributing Cause. The opinion should be considered a "must-read" for anyone working in the Florida workers' compensation community. It provides explanation and clarity.
Factually, the employee in this case sat for a short time at a classroom desk, "five minutes or less." Upon standing, he found one of his legs had become "numb just before he stood up." This was described as the leg having "no feeling." The worker's "leg gave way, causing him to fall on the linoleum floor and break his left femur." The trial judge concluded that this injury was in the "course and scope" of the employment, but that it did not "arise out of" the work performed.
In some regards, the analysis is reasonably straightforward. The two medical experts in the case each reached the same conclusion, that the sitting resulted in "experienc(ing) a compressed nerve." There was also mention of the possible involvement of "vasculature." The condition was described as "a very common phenomenon 'that most people experience at least once in their life,'” Note that this was "something that could happen anywhere." That is a critical point.
The decision focuses the reader on the relevance of the presence of any "pre-existing condition," "personal risk," and the "increased hazard" concept. In focusing the analysis, the Court reiterated the distinction between "arising out of" and the "course and scope:"
"The words ‘arising out of’ refer to the origin of the cause of the accident, while the words ‘in the course of employment’ refer to the time, place, and circumstances under which the accident occurs.'”
That an injury occurs at the work site is primarily part of the "course of employment" analysis. However, the "arising out of" requires proof of "a causal connection between the employment and the injury.” In this regard, the Court provides edification of the social rationale for placing responsibility upon an employer for an injury, referred to as "the burden" an employer must carry. It is the business that profits from the investment of labor, and essentially it is therefore seen as socially just that the business bear the expense of injuries that result therefrom.
There is explanation also of the evolution in Florida workers' compensation from "any presumption in favor of the employee or employer," to the so-called level playing field. This involves discussion of statutory amendments in both 1990 and 1993, citing the Vigliotti v. K-mart Corp., 680 So. 2d 466, 468 (Fla. 1st DCA 1996) decision which interpreted those changes.
The Court reiterates that there are no "'gimmes' regarding causation based on the mere fact that the accident or injury happened at work." It is possible that such a location test may weigh significantly in the "course and scope," but not necessarily the "arising out of." Therefore, location is something that may be considered but is not controlling as regards the latter.
Notable cases cited in Silberberg include Hernando Cnty. Sch. Bd. v. Dokoupil, 667 So. 2d 275, 277 (Fla. 1st DCA 1995); Sentry Ins. Co. v. Hamlin, 69 So. 3d 1065, 1070 (Fla. 1st DCA 2011); Grenon v. City of Palm Harbor Fire Dist., 634 So. 2d 697, 699 (Fla. 1st DCA 1994); and Acker v. Charles R. Burklew Constr., 654 So. 2d 1211, 1212–13 (Fla. 1st DCA 1995). As the dates make clear, these analyses have been around for years.
However, the Court specifically noted that "decisions like Walker and Ross are also alive and well." Walker v. Broadview Assisted Living, 95 So. 3d 942 (Fla. 1st DCA 2012); Ross v. Charlotte Cnty. Pub. Schs., 100 So. 3d 781 (Fla. 1st DCA 2012). Thus, a specific and separate analysis is appropriate when the facts do not demonstrate "an intervening idiopathic condition or personally presented external hazard having played a role." These instances, the Court notes, are "any exertion test" cases, similar to Caputo, see infra. These "any exertion" analyses and decisions, the Court explains in Silberberg, are "left untouched by Valcourt-Williams."
There is an explanation of the Valcourt-Williams analysis when there is a contributing non-work condition or risk that is implicated along with a work risk. In that instance, we are reminded that the determination of "major contributing cause" would require demonstration that "work must be more than just a cause - it must be the preponderant cause compared to any idiopathic cause." (Emphasis added).
But, "in the absence of any idiopathic cause, there are not competing causes in the mix to assess, and the MCC standard would not be necessary." In that instance, instead of the Valcourt-Williams analysis, the "any exertion test" would be used in determining compensability. In that test, the law:
"does not look at the quality or quantity of the activity. 'Any exertion' means any effort in furtherance of work will do."
The court then turns to two prior decisions for an analysis and explanation of the distinction. Caputo v. ABC Fine Wine & Spirits, 93 So. 3d 1097 (Fla. 1st DCA 2012) and Sedgwick CMS v. Valcourt-Williams, 271 So. 3d 1133 (Fla. 1st DCA 2019). The court explains that "In Caputo, there was . . . no evidence pointing to any non-work explanation for the fall." Thus, the "any exertion test" "was enough of a causal connection between the work and the accident."
However, in Valcourt-Williams, a "different problem" was analyzed. That question was "whether exertion at work but during a comfort break is work at all when considering causation." It noted that "A comfort break is inherently personal, and there usually is much about the break that will not be clearly work-related." Thus, a factual determination as to whether the particular exertion is in fact personal or not, thus "arising out of" or not.
The Court is clear that Caputo was "not even mention(ed)" in the Valcourt-Williams decision (though Caputo, Walker, and Ross are mentioned in the dissenting opinion there). It explains that Caputo was not cited because in Caputo "there was no evidence of any other risk contributing to the fall." Thus, the Court notes that "reports of Caputo’s implicit demise at the hands of Valcourt-Williams are greatly exaggerated." Perhaps here a homage to an "often misquoted quip" of Mark Twain?
The Court clarifies in Silberberg that "Valcourt-Williams was a narrow, trip-and-fall/comfort-break-accident case." Therefore, the decisions overruled by that decision "were those that seemed to hold - contrary to this principle - that an injury at work necessarily arose out of work because the accident happened on a comfort break." This, it is clear, is too simple a test of compensability.
Of particular note, in deciding if there is some "other risk," the risk need not be "pre-existing" in that it was "previously manifested or diagnosed." Instead, a "dizziness, labyrinthitis, or epilepsy" might suffice, as could some "external failure of equipment . . . like a leg brace." Thus, in this case, the "leg numbness while simply sitting" was similar to the facts of Grenon and Acker (supra), and the Court affirmed that the resulting fall had not been proven compensable.
The Court clarified that such instances will require examination of the facts. It noted, "each employee brings a slightly different risk of physiological response to work activity." In this case, the
"medical evidence in this case established that Silberberg’s leg falling asleep could have happened anywhere, at any time; but his particular physiological phenomenon fortuitously happened at work and caused his fall."
Thus, the work did not create or cause the risk of the fall. While the sitting did "trigger() his idiopathy—his leg falling asleep," the work was nonetheless not the major contributing cause of the injury. To prove that it was, the worker would have to demonstrate more, e.g. "that the sitting at the time of the accident was an exertion or strain more or different than what he ordinarily would encounter in his non-work life." Hypothetically, the Court noted, the worker might do so in some factual scenario with proof that:
"he had to sit for an unusually long period of time, or that the chair in his classroom was unusually hard or particularly prone to causing one’s leg to fall asleep."
The risk, in such a setting, will require more than the risk merely existing. The risk at work must be shown in some manner to be more than the risk elsewhere in the worker's life.
The Silberberg decision is absolutely a "must read" for those who would strive to understand the import of the Valcourt-Williams decision, the decisions there "expressly overruled," and the distinction of situations that instead present the "any exertion" analysis.
