Sedgwick CMS and The Hartford/Sedgwick CMS v. Tammitha Valcourt-Williams

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D17-96

_____________________________

SEDGWICK CMS and THE

HARTFORD/SEDGWICK CMS,

Appellants,

v.

TAMMITHA VALCOURT-WILLIAMS,

Appellee.

_____________________________

On appeal from an order of the Judge of Compensation Claims.

W. James Condry, II, Judge.

Date of Accident: April 27, 2016.

April 5, 2019

ON HEARING EN BANC

WINSOR, J.

Tammitha Valcourt-Williams, a workers’ compensation

claimant, tripped over her dog while reaching for a coffee cup in

her kitchen. Because she had a work-from-home arrangement,

and because her fall occurred during working hours, Valcourt-

Williams sought workers’ compensation benefits. The Judge of

Compensation Claims determined the injury was compensable,

concluding that the work-from-home arrangement meant the

employer “imported the work environment into the claimant’s

home and the [c]laimant’s home into the work environment.” But

the question is not whether a claimant’s “home environment”

becomes her “work environment”; the question is whether the

employment—wherever it is—“necessarily exposes a claimant to

conditions which substantially contribute to the risk of injury.”

Sentry Ins. Co. v. Hamlin, 69 So. 3d 1065, 1068 (Fla. 1st DCA

2011) (citing Acker v. Charles R. Burklew Constr., 654 So. 2d

1211 (Fla. 1st DCA 1995)). Here, the relevant risk was that the

claimant might trip over her dog while reaching for a coffee cup

in her kitchen. That risk exists whether the claimant is at home

working or whether she is at home not working. It existed before

Valcourt-Williams took her job, and it will exist after her

employment ends (so long as she maintains a home with a dog).

Because the risk did not arise out of the employment, we must

reverse.

Valcourt-Williams was a workers’ compensation claims

adjuster for Sedgwick CMS, an appellant here. She was assigned

to Sedgwick’s Lake Mary office, but Sedgwick permitted her to

work from her home in Sierra Vista, Arizona. Because of the

different time zones, Valcourt-Williams began work at 4 a.m.

local time to meet the Lake Mary office’s 7 a.m. start time. On the

day of the accident, Valcourt-Williams had been working three

hours when she went downstairs for a cappuccino. As she reached

to get a cup, she fell over one of her two dogs. The fall resulted in

knee, hip, and shoulder injuries, as well as a workers’

compensation claim. Sedgwick denied the claim, contending that

the injuries did not arise out of the employment. After a hearing,

the JCC sided with Valcourt-Williams, and Sedgwick appealed.

The relevant facts are undisputed, and we review de novo the

JCC’s application of law to those facts. Aills v. Boemi, 29 So. 3d

1105, 1108 (Fla. 2010).

Employers must provide workers’ compensation benefits

when employees sustain injuries from accidents “arising out of

work performed in the course and the scope of employment.”

§ 440.09(1), Fla. Stat. (2016). Accidents occur “in the course and

the scope of employment” when they occur “in the period of []

employment, at a place where [the employee] would reasonably

be, while fulfilling her duties.” Bryant v. David Lawrence Mental

Health Ctr., 672 So. 2d 629, 631 (Fla. 1st DCA 1996). Here, the

parties agree that Valcourt-Williams’s injuries occurred in the

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course and scope of her employment: the injury was during work

hours, her home was where she “would reasonably be,” and her

coffee break was a permissible “comfort break,” see Bayfront Med.

Ctr. v. Harding, 653 So. 2d 1140, 1142 (Fla. 1st DCA 1995)

(noting that “a worker’s attendance to personal comfort during a

refreshment break . . . does not . . . remove the worker from the

course and scope of his employment” (marks omitted)). “Course

and scope” is not the issue here.

The issue here is whether the injury was “arising out of” the

employment. See Southern Bell Tel. & Tel. Co. v. McCook, 355 So.

2d 1166, 1167-68 (Fla. 1977) (noting “separate elements” of “in

the course” and “arising out of” employment); Sentry Ins., 69 So.

3d at 1070 (workers’ compensation does not cover accidents that

occur in course and scope but that do not arise out of

employment). As the Florida Legislature specified, “‘[a]rising out

of’ pertains to occupational causation. An accidental injury or

death arises out of employment if work performed in the course

and scope of employment is the major contributing cause of the

injury or death.” § 440.02(36), Fla. Stat.; accord Strother v.

Morrison Cafeteria, 383 So. 2d 623, 628 (Fla. 1980) (“[T]o be

compensable, an injury must arise out of employment in the

sense of causation and be in the course of employment in the

sense of continuity of time, space, and circumstances.”). More

simply, the “arising out of” limitation “requires that the risks

that caused [c]laimant’s accident and injuries [] be work-related.”

Sentry Ins., 69 So. 3d at 1068. An accident is thus compensable

only if “the employment necessarily expose[d] claimant to

conditions that would substantially contribute to the risk of

injury and to which the claimant would not normally be exposed

during his nonemployment life.” Acker v. Charles R. Burklew

Const., 654 So. 2d 1211, 1212 (Fla. 1st DCA 1995); accord Glasser

v. Youth Shop, 54 So. 2d 686, 687-88 (Fla. 1951) (finding injury

did not arise out of employment because claimant “was not on the

stairs because of his employment; he would have been there in

any event, regardless of whether he had brought his work

home”); Medeiros v. Residential Cmtys. of Am., 481 So. 2d 92, 93

(Fla. 1st DCA 1986); Grenon v. City of Palm Harbor Fire Dist.,

634 So. 2d 697, 699 (Fla. 1st DCA 1994) (“The employment must,

in some way, contribute an ‘increased risk’ of injury peculiar to

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that employment; otherwise, the statutory requirement that the

injury ‘arise out of employment’ would be eliminated.”).

This court has not hesitated to apply the “arising out of”

limitation where workplace injuries flowed from risks unrelated

to an employee’s work. In Medeiros v. Residential Communities of

America, for example, we held that if someone is injured at work

after fainting—but would have fainted just the same had she not

been at work—the resulting injury is not compensable. 481 So. 2d

at 93. The claimant in Medeiros could not succeed because she

could “not demonstrate[] that her physical surroundings on the

job in any way contributed to the risk of injury any more than

they would have in non-employment life.” Id. That same rule

applies whether the injury follows fainting, see id., a heart

attack, or—like here—a fall, see, e.g., Leon Cty. Sch. Bd. v.

Grimes, 548 So. 2d 205, 208 (Fla. 1989) (finding fall

noncompensable because claimant’s “employment in no way

contributed to her injury”); Duval Cty. Sch. Bd. v. Golly, 867 So.

2d 491, 494 (Fla. 1st DCA 2004) (“[W]e cannot say that a fall to a

level concrete floor is automatically compensable, irrespective of

the cause of the fall.”); Hernando Cty. Sch. Bd. v. Dokoupil, 667

So. 2d 275, 277 (Fla. 1st DCA 1995) (“The fact that the claimant

was in the course and scope of his employment when he fell is

insufficient; there must be some finding that the employment

created an increased risk of the fall itself or of the injuries which

resulted.”).

Regardless of the type of injury, compensability always turns

on whether the employment led to the risk—whether there was

“occupational causation,” § 440.02(36), Fla. Stat. In other words,

it is not enough to say this was a “workplace trip-and-fall”

because there is no statutory trip-and-fall exception. Whether the

accident is a fall—or anything else—a claimant cannot prevail

unless there was occupational causation, a risk not existent in

the claimant’s “non-employment life.” Mederios, 481 So. 2d at 93;

accord Glasser, 54 So. 2d at 687 (“Since industry must carry the

burden, there must then be some causal connection between the

employment and the injury, or it must have had its origin in

some risk incident to or connected with the employment, or have

followed from it as a natural consequence.”). In Valcourt-

Williams’s case, there is no such risk. Instead, it is undisputed

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that features of Valcourt-Williams’s “non-employment life”—her

dog, her kitchen, her reaching for a coffee cup—caused the

accident.

To adopt Valcourt-Williams’s contrary view, we would have

to hold that an employee’s tripping over her own dog at home on

a Friday is attributable to risks of employment while the same

employee’s tripping over the same dog at the same home on a

Saturday is not. We would have to hold that a home light

fixture’s falling on an employee in the afternoon is attributable to

risks of employment while the same home light fixture’s falling

on the same employee in the evening is not. And in doing so, we

would have to set aside the “arising out of” limitation the

Legislature enacted. Cf. Southern Bell, 355 So. 2d at 1168 n.3

(noting claimant’s concession that the same “activity might give

rise to the same [injury] if it occurred after work-hours, though in

that case there would be no recovery” and concluding that, “[i]n

short, [claimant] requested this Court to construe the ‘arising out

of’ requirement out of the statute, for all practical purposes”);

Hernando Cty. Sch. Bd., 667 So. 2d at 276-77 (“[I]f all falls onto

all surfaces were compensable, the statutory requirement that

the injury arise out of the employment would be completely

eradicated.”); Grenon, 634 So. 2d at 699 (“The Florida Supreme

Court has expressly declined to broaden the purpose of workers’

compensation legislation to allow recovery for all injuries

occurring in the workplace, including those arising out of

conditions personal to the claimant which are not caused or

aggravated by industry.”). We ought not do that.

To be sure, a handful of our earlier cases have overlooked or

ignored the statutory “arising out of” limitation, and we have not

always been consistent in our application of that limitation. For

example, in Holly Hill Fruit Products, Inc. v. Krider, this court

upheld a claimant’s award where the claimant had been hit by a

car after leaving work to buy cigarettes. 473 So. 2d 829, 830 (Fla.

1st DCA 1985). The court held that the claimant’s leaving work

for an “off-premises refreshment break of insubstantial duration”

was not enough to “remove [the claimant] from the course and

scope of his employment.” Id. at 830-31. But the decision never

addressed whether the accident was “arising out of” the

employment. Id. To the extent Holly Hill is read to allow

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compensation without an “arising out of” component—without

occupational causation—it cannot square with the clear statutory

directive. See also Bayfront Med. Ctr. v. Harding, 653 So. 2d 1140

(Fla. 1st DCA 1995) (relying on Holly Hill to find compensable

off-premises car accident while employee sought food or

cigarettes); Gray v. Eastern Airlines, Inc., 475 So. 2d 1288 (Fla.

1st DCA 1985) (relying on Holly Hill to find compensable a flight

attendant’s basketball injury from a YMCA pick-up game on a

flight layover).

Moreover, in at least one case, we arguably suggested that

any injury suffered on a “comfort break” within the course and

scope of employment was necessarily “arising out of”

employment. In Pan American World Airways v. Wilmot, we

found compensable a flight attendant’s injury after—while at

dinner on a layover—she “attempted to light a cigarette, and

burned her hand when the entire matchbook went up in flames.”

492 So. 2d 1373, 1373 (Fla. 1st DCA 1986). This court considered

the dinner to be within the “course and scope” of employment.

But rather than analyze the “arising out of” limitation, the court

rejected an argument that “risks arising from [smoking] are not

job-related” by saying the argument “ignores another principle

particularly applicable to workers’ compensation cases, the

personal comfort doctrine.” Id. at 1374. To the extent Wilmot

suggests that injuries necessarily arise out of employment

whenever the personal-comfort doctrine brings the injury within

the course and scope of employment, we reject it as inconsistent

not only with the statute but also with the supreme court’s

Southern Bell decision. See 355 So. 2d at 1168 (rejecting

compensability of bathroom injury sustained in course and scope

of employment because the accident was “simply not one ‘arising

out of . . . employment” (alteration in original)). If any ambiguity

remains, we hope to remove it now: For any injury to be

compensable, it must “arise out of” the employment; there must

be—as the statute says—“occupational causation.” § 440.02(36),

Fla. Stat.

None of this is to say, of course, that work-at-home

arrangements immunize employers from workers’ compensation

claims. Just as employer-premises accidents can have

occupational causation, so too can work-at-home accidents. Had

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Valcourt-Williams suffered an injury from a risk her employment

introduced—a repetitive stress injury from typing all day, as one

potential example—it would be no answer for the employer to say

she was hurt in her own home. Cf. Metro. Dade Cty. v. Russell,

637 So. 2d 69, 70 (Fla. 1st DCA 1994) (noting that accidents can

be compensable if “the injury resulted from an effort, exertion,

risk, or strain beyond that which is normally encountered in

Claimant’s non-employment life”). Nor are we holding—as the

dissents mistakenly suggest—that there can be no

compensability unless the employee is actively working at the

time of the accident. An accident on a break, for example, might

still “arise[] out of employment,” § 440.02(36), Fla. Stat., where

“the employment necessarily expose[d] claimant to conditions

that would substantially contribute to the risk of injury,” Acker,

654 So. 2d at 1212. But none of this relates to the situation we

face here. Here, the risk at issue—that Valcourt-Williams would

trip over her own dog in her own kitchen while reaching for a

coffee cup—was not a risk her employment introduced.

The Legislature has determined the reach of the workers’

compensation law. And under the system the Legislature

enacted, “[i]f industry does not contribute to the risk of the

accident resulting in injury, the workers’ compensation law does

not require industry to contribute to the cost of the injury.”

Sentry Ins., 69 So. 3d at 1071. Here, the employer did not

contribute to the risk that Valcourt-Williams would trip over her

dog. The workers’ compensation law therefore does not require

the employer to cover the cost of the injury.

REVERSED.

B.L. THOMAS, C.J., and WOLF, LEWIS, ROBERTS, WETHERELL,

ROWE, RAY, OSTERHAUS, KELSEY, WINOKUR, and JAY, JJ., concur.

BILBREY, J., dissents in an opinion joined by MAKAR, J.

MAKAR, J., dissents in an opinion joined by BILBREY, J.

M.K. THOMAS, J., recused.

7

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

BILBREY, J., dissenting.

Today, a majority of this court reverses decades of precedent

regarding the compensability of workplace injuries under Florida

workers’ compensation law. In doing so, the court takes the

benefits of the workers’ compensation system from many workers

who would previously have been protected in the event of

workplace injuries. But the court also opens many employers

and co-employees to tort liability where previously the immunity

from liability provided by the “Grand Bargain” or “Great Trade

Off” of workers’ compensation applied. 1

The majority proves today the maxim that bad facts make

bad law. At first glance, it may appear incontrovertible that

falling over one’s own dog in one’s own home is not compensable

under workers’ compensation. But distilled to the essential facts

Claimant, Tammitha Valcourt-Williams, was injured in a trip

and fall during work hours in her workplace (her house) when

she fell over personal property (her dog) while attending to her

personal comfort. The fact that Valcourt-Williams’s home was

also her workplace and her kitchen doubled as her workday

breakroom should do nothing to alter our consideration of her

claim. 2 Prior to today such a workplace injury from a neutral

1 The history of workers compensation and the creation of

the “Great Trade Off” is discussed in Lloyd Harger, Workers’

Compensation, A Brief History, Florida Department of Financial

Services, Division of Workers’ Compensation,

https://www.myfloridacfo.com/division/wc/infofaqs/history.htm

(last visited March 26, 2019).

2 The United States Census Bureau reports that in 2016,

7,591,793 Americans worked at home for a paid employer.

8

risk not caused by the employee’s preexisting or idiopathic

condition was undoubtedly compensable. But rather than just

reverse the Judge of Compensation Claims (JCC) by finding

(incorrectly) the dog to be a personal risk, the majority has

attempted to change the previously settled law on “arising out of”

so that now “arising out of” means only injuries that are directly

caused by working rather than incident to employment. Given

that, except in the bluest of blue-collar jobs, the vast majority of

risks present in the workplace are constantly present throughout

society, the majority decision today represents a radical shift in

the law.

I believe that in denying the Employer/Carrier’s motion for a

summary final order, the JCC was correct to rule for Valcourt-

Williams on the compensability issue. Applying established law,

the JCC determined that accident was compensable and awarded

benefits to Valcourt-Williams. Because the majority reverses,

and in doing so goes beyond what the E/C argued in overturning

decades of case law and essentially abrogating the long-settled

personal comfort doctrine, I respectfully, but strongly, dissent.

I. The Workplace Fall

As the en banc majority notes, the material facts relevant to

this appeal are not in dispute. Valcourt-Williams was and at the

time of the final hearing remained employed by Sedgwick CMS

as a claims adjuster. On April 27, 2016, Valcourt-Williams

resided in Sierra Vista, Arizona, and worked from her residence

as a remote employee for Sedgwick under a telecommuting

agreement. Valcourt-Williams’s normal work hours were 4 a.m.

to 12:30 p.m., Pacific Time, which matched Sedgwick’s workday

in its Florida office — 7 a.m. to 3:30 p.m., Eastern Time.

Valcourt-Williams took a mid-morning break from her work

at 7 a.m. local time to get a beverage. She went from her second-

floor home office downstairs to the kitchen where she retrieved a

https://factfinder.census.gov/faces/tableservices/jsf/pages/productv

iew.xhtml?pid=ACS_17_SPL_K200801&prodType=table (last

visited March 26, 2019).

9

cup from the cupboard to make instant cappuccino. When she

turned around she tripped over her dog and fell. She landed on

her right knee and hip and was injured.

II. The Claim for Workers’ Compensation

Valcourt-Williams timely reported the fall and injury to

Sedgwick (the E/C), which then authorized her to receive

treatment at an emergency room. Less than two weeks after the

fall, however, the E/C denied compensability. Valcourt-Williams

retained counsel and filed a petition for benefits. In the response

to the petition, the E/C asserted that the “[a]ccident and/or injury

did not arise out of employment.”

The E/C filed a motion for summary final order arguing the

material facts were not in dispute and that a dispositive

determination could be made as to whether the event was

compensable because it was undisputed that Valcourt-Williams’s

fall was caused by her personally-owned dog. The E/C’s motion

alleged that the dog was a risk that Valcourt-Williams imported

into the workplace, and these facts failed to establish a

compensable work-related accident occurred that arose out of

Valcourt-Williams’s employment. In response, Valcourt-Williams

argued that application of the personal comfort doctrine

warranted a finding that the accident was compensable.

Following a hearing on the motion, the JCC agreed that the

relevant facts were not in dispute and that Valcourt-Williams

sustained a compensable workers’ compensation accident which

arose out of and in the course and scope of her employment. The

JCC found that the fall was accidental, that it occurred during

Valcourt-Williams’s normal working hours, and that it occurred

during a refreshment break. The JCC also found that the break

was not in violation of any company rule, it was not in violation

of any provision found in the telecommuting agreement (having

found that the agreement did not limit Valcourt-Williams’s

ability to have pets in her home), it was a reasonable break

necessary to meet Valcourt-Williams’s personal comfort needs,

and it was conducive to facilitate Valcourt-Williams’s

employment.

10

In rejecting the E/C’s argument that the risk was a personal

one imported into the workplace by Valcourt-Williams the JCC

explained:

It was a neutral risk as permitted under the Sentry

Insurance Company [v. Hamlin, 69 So. 3d 1065 (Fla. 1st

DCA 2011)] case analysis. I find the Employer imported

the risk into the claimant’s home by authorizing and

permitting a remote office to be established with

reasonable expectations that comfort and refreshment

breaks would be required during her eight hour work

day. The Employer by virtue of the Telecommuting

agreement imported the work environment into the

claimant’s home and the Claimant’s home into the work

environment. The Employer’s Telecommuting

Agreement did not restrict the area where she could

take breaks, where she could use the bathroom or what

personal property she could keep in her home, including

pets. . . . [T]he Employer had the right to inspect and

obtain photographs of the Claimant’s work environment

and never asked to do either. The Employer created to

my mind what is tantamount to a satellite office for the

Employer from which the Claimant was working and

with it the risk of injury inside the home during normal

working hours and conditions as long as the Claimant

would be within the course and scope of her

employment.

I find that the claimant was required to get up early

and work in order to accommodate the employer’s

schedule in Lake Mary, Florida. Therefore she had to

get up at 4:00 a.m. Pacific Standard time (an extremely

early time for most people) in order to be at work for the

employer in Florida at 7:00 a.m. It was reasonably

foreseeable that the claimant would have to take

comfort or refreshment breaks and the logical place with

which she could do so was in her home kitchen and

bathrooms. Such personal comfort activities provide a

benefit to the employer and are reasonably incidental to

the performance of her work activities. Therefore I find

the accident indeed flowed from the employment as a

11

natural consequence and that taking a break to get

something to drink during normal working hours has a

relationship to her work and is a necessary function of

her being able to continue to work for 8 hours during the

day. Bayfront Med. Ctr. v. Harding, 653 So. 2d 1140

(Fla. 1st DCA 1995). I do not find as the E/SA argues

that the Claimant imported the risk into the work place.

I find the tripping over the dog would be no different

than if she had slipped on a liquid substance on the

floor, on a lose [sic] kitchen floor mat, or over her own

two feet. I find the accident would be compensable.

In the summary final order, the JCC reserved jurisdiction to

determine what injuries, if any, were related to the fall. A final

merits hearing then took place. The JCC found that when

Valcourt-Williams fell she sustained a traumatic loosening of

hardware which had previously been implanted in her right knee

— Valcourt-Williams having undergone bilateral knee

replacement surgeries in 2009. The JCC directed the E/C to

authorize ongoing treatment for Valcourt-Williams’s work-related

right knee injury as the nature of the injury and the process of

recovery may require. The E/C was also directed to pay Valcourt-

Williams temporary total disability benefits, along with penalties

and interest.

III. JCC Was Correct in Determining a Neutral Risk

I first address the E/C’s argument that the JCC erred in

finding that the accident arose out of Valcourt-Williams’s

employment because the risk of injury created by her dog was

entirely personal and had no cognizable relationship to her

employment. The en banc majority’s opinion discusses this

argument but in its ultimate holding goes well beyond what the

E/C argued. Because the relevant facts are undisputed, the issue

is a question of law, which is reviewed de novo. See Airey v. Wal-

Mart/Sedgwick, 24 So. 3d 1264 (Fla. 1st DCA 2009).

Section 440.09(1), Florida Statutes (2016), states in part,

“The employer must pay compensation or furnish benefits

required by this chapter if the employee suffers an accidental

compensable injury or death arising out of work performed in the

course and the scope of employment.” I begin with a recognition

12

that the analysis here should be unaltered by the fact that

Valcourt-Williams’s workplace was a non-traditional one. The

personal comfort doctrine is a long-standing acknowledgement

that, during a work day, an employee engaging in personal

comfort activities, such as a refreshment break, benefits the

employer so long as the activities are incidental to the

performance of work activities. As we stated in Harding, “a

worker’s attendance to personal comfort during a refreshment

break is conducive to the facilitation of the employment.” 653 So.

2d at 1142 (quoting Holly Hill Fruit Prods., Inc. v. Krider, 473 So.

2d 829, 830 (Fla. 1st DCA 1985)). A worker remains in the course

and scope of employment while attending to matters covered by

the personal comfort doctrine. Harding, 653 So. 2d at 1141-42.

However, to satisfy the “arising out of work” requirement of

section 440.09(1), the personal comfort doctrine applies only

when there is a work-related or neutral risk. Southern Bell Tel.

& Tel. Co. v. McCook, 355 So. 2d 1166 (Fla. 1977) (approving the

personal comfort doctrine but holding that injury sustained by

claimant attending to personal comfort is not compensable if

workplace provided none of the risk and did not otherwise

contribute to injury). If there is a work-related or neutral risk,

then the injury is one “arising out of work.”

We have discussed the three categories of risks causing

workplace injuries as follows:

[R]isks distinctly associated with the employment, risks

personal to the claimant, and “neutral” risks—that is,

risks having no particular employment or personal

character. Griffith v. Budget Rent-A-Car Systems, Inc.,

692 So. 2d 294, 296 (Fla. 3d DCA 1997) (quoting A.

Larson, The Law of Workmen’s Compensation § 7.00

(1984)). Harms from risks peculiar to employment are

universally compensable. Id. Harm caused by personal

risks are universally noncompensable. Id. It is within

the third category (neutral risks) that most controversy

in modern compensation law occurs. Id.

Hamlin, 69 So. 3d at 1069-70. Therefore, compensable personal

comfort cases must meet a three-part test, which we stated in

Hamlin as follows:

13

(1) The activity has been a traditional or routine part of

the work place experience (incidental to work);

(2) The employee’s participation in activity of this type

has been held to benefit the employer by producing a

refreshed employee; and

(3) The injury results from either a work created risk or

a neutral risk.

Id. at 1072.

Here, the E/C contends that the injury suffered was a result

of a personal risk. Yet, Valcourt-Williams’s injury passes all

three parts of the Hamlin test. First, her coffee break was an

activity that is a routine part of the workplace experience, and

the JCC found that she was on a work break as permitted by

Sedgwick. Second, Valcourt-Williams’s undertaking a break was

a benefit to Sedgwick. The JCC found “that taking a break to get

something to drink during normal working hours has a

relationship to her work and is a necessary function of her being

able to continue to work for 8 hours during the day.” Third, the

injury resulted from a neutral risk. The JCC found that tripping

over the dog was “no different than if she had slipped on a liquid

substance on the floor, on a lose [sic] kitchen floor mat, or over

her own two feet.” The JCC’s finding is consistent with decades

of our case law which holds a trip and fall in the workplace to be

compensable so long as it was not caused by a claimant’s

idiopathic or preexisting condition. 3 See Ross v. Charlotte Cty.

Pub. Sch., 100 So. 3d 781 (Fla. 1st DCA 2012) (fall due to foot

caught in linoleum flooring compensable); Walker v. Broadview

Assisted Living, 95 So. 3d 942 (Fla. 1st DCA 2012) (foot slip while

walking the hallway compensable); Caputo v. ABC Fine Wine &

Spirits, 93 So. 3d 1097 (Fla. 1st DCA 2012) (fall with resulting

head injury such that claimant did not know how the accident

3 Hence workplace fainting, as mentioned by the en banc

majority, or any other idiopathic or preexisting condition

personal to a worker, does not arise out of employment and is

therefore not compensable.

14

occurred compensable); Lanham v. Dep’t. of Envtl. Prot., 868 So.

2d 561 (Fla. 1st DCA 2004) (trip and fall on a sidewalk a quarter

of mile from work while taking a walk on a paid break

compensable); Citrus Mem’l. Hosp. v. Cabrera, 388 So. 2d 345

(Fla. 1st DCA 1980) (slip and fall in the workplace restroom

compensable).

It is essential to the analysis that Valcourt-Williams was no

more engaged with her dog when she tripped than she would

have been, for instance, with a briefcase, backpack, purse, gym

bag, or even her own shoes had she tripped over any of those

items instead — all of which are employee-owned property

commonly brought into the workplace. The JCC recognized as

much when he noted that had Valcourt-Williams been playing

with her dog, the injury would not have been compensable. 4 It is

foreseeable that an employee will bring or attempt to bring the

employee’s own personal property, not otherwise prohibited by

the employer, into the workplace and that the property or the

attempt to procure the property may create a neutral risk

resulting in a compensable injury. See Harding, 653 So. 2d at

1142 (injury from off-premises automobile accident on a break

during working hours while attempting to get food or cigarettes

compensable); Louis v. Louis’s Amoco, 534 So. 2d 417 (Fla. 1st

DCA 1988) (employee’s injuries from drinking contaminated soft

drink purchased from employer compensable); Krider, 473 So. 2d

at 830 (injury to claimant struck by automobile while walking

across road to purchase cigarettes on break during work hours

compensable); Baker v. Orange Cty. Bd. of Cty. Comm’rs, 399 So.

2d 400 (Fla. 1st DCA 1981) (injury from battery operated socks

claimant wore to ward off frostbite compensable).

Other states have considered workplace falls over personal

property and found them to be compensable under workers’

4 The risk here that is compensable is the neutral risk of a

workplace trip and fall. Had the Claimant been bitten by her

dog, the risk to be considered would have instead been the risk of

an attack by her dog — presumably a personal risk in most

workplaces.

15

compensation. In McBride v. Midwest Estate Buyers, LLC, No.

93A02-1612-EX-2920, 86 N.E.3d 452 (table), 2017 WL 2492774

(Ind. Ct. App. 2017), a jewelry store clerk tripped and fell when

the zippers on the inside of her boots hooked together. The court

in McBride discussed the same three categories of risks we

considered in Hamlin. McBride at *2. In McBride, there was no

pre-existing illness or condition involved, thus, the fall was not

caused by McBride’s personal risk. Id. Rather, the appellate

court reasoned, in reversing the compensation board’s denial of

compensability, that

[a]lthough her choice of clothing and footwear is a

personal choice and in this case was not dictated by

company policy, an employee of a fine jewelry store

would certainly be required to wear some form of

footwear. Further, McBride testified she often dressed

up and tried to look stylish for her work which involved

meeting with customers. Therefore, we think McBride’s

case falls within the third category, those risks neither

distinctly employment related nor distinctly personal in

character.

Id. at *3.

In Sandberg v. JC Penney Co., 260 P. 3d 495 (Or. Ct. App.

2011), claimant was injured while working in her home when she

tripped over her dog while going to the garage to retrieve fabric

samples for work. The controversy, like our situation here,

focused on the requirement that the injury arise out of and occur

in the course of employment. The court noted that while

working, the claimant’s home environment became her work

environment. 260 P.3d at 500. Quoting Larson’s Workers’

Compensation Law, the court noted that “the hazards of home

premises encountered in connection with performance of the work

are also hazards of the employment.” Sandberg, 260 P.3d at 500

(quoting Arthur Larson and Lex K. Larson, 1 Larson’s Workers’

Compensation Law § 16.10 [4], 16-37 (2009)). The court also

noted that “although the employer may not have had control over

claimant’s dog, it had control over whether claimant worked

away from the studio.” Sandberg, 260 P.3d at 500. The court

concluded by analogizing that if “claimant tripped over a dog and

16

injured herself while meeting with a customer in the customer’s

home, her injury would arise out of her employment,” so injuring

herself by tripping over the dog while working at home as a

requirement of employment also arose out of work. Sandberg,

260 P.3d at 501.

When neutral risks result in workplace injuries, the personal

comfort doctrine instructs that those injuries will be found

compensable because an employee attending to personal comfort

“is conducive to the facilitation of the employment.” Krider, 473

So. 2d at 830-31. Cf. Galaida v. AutoZone, Inc., 882 So. 2d 1111,

1113 (Fla. 1st DCA 2004) (explaining that “[b]eing exposed to a

firearm, however, is not a foreseeable consequence of an

authorized cigarette break, especially when the possession of a

firearm is strictly prohibited by the employer. Moreover,

Galaida’s possession of a firearm, in violation of his employer’s

policy, was not conducive to the employer’s interests.”). 5

5 As we stated in Galaida, “The personal comfort doctrine

incorporates a foreseeability element to the cause of injury.” Id.

at 1112. Given, Ross, Walker, Caputo, Lanham, and Cabrera,

among other cases, it is clearly foreseeable that an employee

would trip and fall in the workplace. If the foreseeability is

focused on dogs or other pets, as Judge Makar discusses in his

dissent, it is clearly foreseeable that an American household

would have a common house pet. Dissenting op. at 34 (Makar,

J.). The foreseeability of the presence of a dog here may have

changed had it been banned by Sedgwick, as the employer

banned the firearm in Galaida, but dogs were not prohibited by

Sedgwick.

17

IV. Majority Goes Beyond What E/C Sought

In arguing that we should reverse the JCC, the E/C claimed

only that Valcourt-Williams’s risk of tripping over her dog was a

personal risk under the Hamlin framework. The E/C had

previously made the personal risk argument before the JCC. As

set forth above, I disagree with the E/C’s argument. But if the

court were to adopt the E/C’s contention and hold that the

presence of a dog was a personal risk akin to the firearm in

Galaida that would not cause a paradigm shift in Florida

workers’ compensation law. I respectfully submit that the en

banc majority has gone beyond what the E/C has sought, has

upended the long-standing personal comfort doctrine, and has

now defined “occupational causation” in “arising out of” to mean

only “directly caused by” engaging in the core functions of

employment. See § 440.02(36), Fla. Stat.

Barring fundamental error, we can only reverse on what is

argued below. Davis v. State, 136 So. 3d 1169 (Fla. 2014);

Williams v. State, 213 So. 3d 1123 (Fla. 1st DCA 2017). Further,

we cannot reverse on a ground not argued on appeal. See I.R.C.

v. State, 968 So. 2d 583, 588 (Fla. 2d DCA 2007) (noting that to

reverse based on grounds not argued by the appellant would be

“at odds with the structure of the appellate process which

requires that a reviewing court ordinarily reverse only on the

basis of the specific arguments presented by the appellant”). As

the above quotation from the JCC’s decision shows, the issue he

considered was the nature of the risk under our Hamlin

framework. Neither before the JCC nor before our court did the

E/C argue that our “arising out of” jurisprudence was wrongly

decided and needed to be discarded en banc and en masse.

Part of the problem with the en banc majority’s reasoning is

the majority opinion at times mixes “course and scope of

employment” with “arising out of.” The majority claims that to

hold for Valcourt-Williams, “we would have to hold that an

employee’s tripping over her own dog at home on a Friday is

attributable to risks of employment while the same employee’s

tripping over the same dog at the same home on a Saturday is

not.” Majority op. at 5. Yes, we would, and we should. But this

is a course and scope of employment consideration. If injured

18

during a break from work during the workday, under the

personal comfort doctrine the employee remains in the course and

scope of employment. Lanham, 868 So. 2d at 563. This is so

regardless of whether the injury occurs on or off the employer’s

premises. Id. If an employee is injured outside of the workday,

then barring various exceptions not applicable here, the employee

is not in the course and scope of employment, so the injury is not

compensable. See Fidelity & Cas. Co. of New York v. Moore, 196

So. 495, 496 (Fla. 1940) (holding that generally, “the injury must

occur within the period of the employment”).

Of course, although not addressed by the majority, “arising

out of” and “course and scope” “are part of a single test, such that

the strength of one element may cure the weakness of the other.”

Grenon v. City of Palm Harbor Fire Dist., 634 So. 2d 697, 699

(Fla. 1st DCA 1994). “The phrase ‘arising out of’ refers to the

origin of the cause of the accident, while the phrase ‘in the course

of employment’ refers to the time, place and circumstances under

which the accident occurs.” Id. (citing Bituminous Cas. Corp v.

Richardson, 4 So. 2d 378 (Fla. 1941)).

The majority opinion puts at risk many established doctrines

of Florida workers’ compensation by interpreting “occupational

causation” in “arising out of” to only mean directly performing

work. See § 440.02(36), Fla. Stat. We considered this exact issue

in upholding the “premises rule” in Vigliotti v. K-Mart Corp., 680

So. 2d 466 (Fla. 1st DCA 1996). The premises rule provides

workers’ compensation benefits to employees who are “off the

clock” and not actually engaged in work, but who are preparing

for or departing from work when injured on the employer

premises. In Vigliotti, we stated:

We have considered carefully K-Mart’s contention

that the phrase “work performed” must be construed to

include only actual performance of primary job duties by

an employee. As previously noted, this construction

would broaden the potential tort liability for every

employer in Florida. Moreover, this construction would

contravene the legislative intent to ensure the prompt

delivery of benefits to the injured worker by an efficient

and self-executing system. § 440.015, Fla. Stat. Indeed,

19

K-Mart’s construction would lead to expensive and time

consuming judicial inquiry in a broad range of cases

that are now undoubtedly handled administratively

without the intervention of attorneys. Scenarios

discussed in the briefs and at oral argument included a

roofer injured while climbing down a ladder at the end

of his shift and a clerical worker injured while taking a

restroom break. Under K-Mart’s view, employers would

be completely free to argue in such cases that work

performed did not contribute to the injury, and hearings

would then be required on this issue. Such a procedure

would be neither efficient nor self-executing.

Vigliotti, 680 So. 2d at 467.

The majority rationale also calls into question, without being

able to overturn, the “bunkhouse rule” approved by the Florida

Supreme Court. See Wilson Cypress Co. v. Miller, 26 So. 2d 441

(Fla. 1946). The bunkhouse rule instructs “that when the

contract of employment contemplates that the employee shall

sleep on the employer’s premises, as an incident to the

employment, and is injured while not engaged on a purely

personal mission, the injury is compensable.” Id. at 442. There

Miller was sleeping on his employer’s houseboat when killed in a

fire. Id. at 441. Clearly, Miller was not engaged in work at the

time, nonetheless the Florida Supreme Court found his death

compensable. Id. The majority rationale would also call into

question the “horseplay doctrine” which holds compensable those

injuries resulting from “an insubstantial deviation . . . which does

not necessitate the complete abandonment of the employment

and the concentration of all energies for a substantial part of the

working time.” Boyd v. Florida Mattress Factory, Inc., 128 So. 2d

881, 882 (Fla. 1961).

Many of the cases cited by the majority in support of the

argument that Valcourt-Williams’s fall does not “arise out of”

work are in fact cases where the claimant’s idiopathic condition

caused the injury. See, e.g., Southern Bell Tel. & Tel. Co. v.

McCook, 355 So. 2d 1166 (Fla. 1977) (congenital abnormality in

lower back); Acker v. Charles R. Burklew Constr., 654 So. 2d 1211

(Fla. 1st DCA 1995) (preexisting degenerative arthritis);

20

Medeiros v. Residential Cmtys. of Am., 481 So. 2d 92 (Fla. 1st

DCA 1986) (dizziness from a prior non-work-related automobile

accident); Grenon (aggravation of preexisting back injury); Leon

Cty. Sch. Bd. v. Grimes, 548 So. 2d 205 (Fla. 1989) (fall caused by

leg brace worn due to polio). There was no argument here that

the fall was caused by Valcourt-Williams’s preexisting knee

surgeries. Even as to idiopathic falls, there is an exception not

applicable here under which injuries from falls are found to arise

out of employment if “the injuries from the fall can be attributed

to some increased hazard attendant to the job such as where the

fall is onto dangerous objects.” Foxworth v. Fla. Indus. Comm’n,

86 So. 2d 147, 151 (Fla. 1955); see also Duval Cty. Sch. Bd. v.

Golly, 867 So. 2d 491 (Fla. 1st DCA 2004).

The majority incorrectly cites the exception applicable to

idiopathic conditions mentioned in Golly as if it was the rule.

Majority op. at 4. But in Walker we recognized that only if a

personal or idiopathic condition is involved is it necessary for

“claimants to establish that ‘the employment itself created the

hazard of the risk.’” 95 So. 3d at 943 (quoting Hernando Cty. v.

Dokoupil, 667 So. 2d 275, 276 (Fla. 1st DCA 1995)). 6 If an

idiopathic or preexisting injury is not involved, then it does not

matter that the injury could have also occurred had the employee

not been at work. “Only if the employer and carrier have

satisfied that burden of proof [that an idiopathic or preexisting

condition was involved] is it appropriate for the JCC to hold the

claimant to the more stringent standard for compensability . . . to

establish that the employment exposed the claimant to risk of

6 Furthermore, had the majority provided a complete

quotation from Metropolitan Dade County v. Russell, 637 So. 2d

69 (Fla. 1st 1994), this point would have been demonstrated.

Majority op. at 7. In Russell we said, “If the JCC finds that

Claimant has an idiopathic condition, then before the causal

connection can be found and the work injury deemed

compensable, the JCC specifically must find also that Claimant

demonstrated that the injury resulted from an effort, exertion,

risk, or strain beyond that which is normally encountered in

Claimant’s non-employment life.” Id. at 70 (emphasis added).

21

injury greater than the employee would normally encounter in

non-employment life.” Bryant v. David Lawrence Mental Health

Ctr., 672 So. 2d 629, 631 (Fla. 1st DCA 1996). The majority

opinion discards this well-stated holding from Bryant.

In Ross, we wisely rejected a JCC’s conclusion that “because

Claimant could not establish an increased risk of harm associated

with her employment . . . Claimant could not establish that the

injury arose out of employment because the accident could have

happened elsewhere.” 100 So. 3d at 782. We held that such a

conclusion would implicate section 440.10(2), Florida Statutes,

which provides that, absent narrow exceptions, “[c]ompensation

shall be payable irrespective of fault as a cause for the injury.”

Again citing Walker, we stated, “Thus, in the absence of any

medical evidence to establish the existence of a pre-existing

condition, it was not necessary for Claimant to show an increased

risk of harm associated with her employment in order to

establish the causal connection between her employment and her

accident.” Ross, 100 So. 3d at 782-83.

The majority also discredits the personal comfort doctrine

without being able to explicitly overrule it since the doctrine was

approved by the Florida Supreme Court in McCook. There the

Court stated, “The fact that McCook was attending to a personal

matter at the time of the accident is irrelevant, since it was

incidental to employment and therefore a matter within the

‘personal comfort doctrine.’” 355 So. 2d at 1168, n.2 (citing 1 A.

Larson, The Law of Workmen’s Compensation s. 12.00 (1972)).

The approval of the personal comfort doctrine under Florida law

seems to be rooted in the Florida Supreme Court’s recognition

that an employee is in the course and scope of employment if the

employee is “reasonably fulfilling the duties of this employment

or engaged in doing something incidental to it.” Fidelity &

Cas. Co. of New York v. Moore, 196 So. 495, 496 (Fla. 1940)

(emphasis added). The majority’s narrow definition of

occupational causation is contrary to the Florida Supreme Court

approving coverage for injuries arising from incidental causes.

Many of the injuries which we have previously found

compensable could have just as easily occurred outside of work.

Under the majority’s rationale these injuries would not be

22

compensable, contrary to our holdings in Caputo, Walker, and

Ross, because the risk does not flow only from employment.

Majority op. at 6-7. Since most employees walk, whether on or off

the job, under the majority’s view no workplace slip and fall

would be compensable. Since all humans must eat, drink, and

excrete, whether on the job or off, any break from an employee’s

occupation for personal comfort would not be compensable. In

fact, in most occupations, many of the functions of daily work life

are also performed outside of the workplace. Office workers

complete paperwork at home. Restaurant workers cook and

serve food at home. Childcare workers care for children at home.

Even many blue-collar workers perform similar work at home —

autoworkers fix their own cars, custodians clean their own

homes, shop workers engage in their trade as hobbyist or

volunteers. By limiting compensability of a workplace injury to

only those injuries which narrowly flow directly from the

employment, the majority has overturned (or at least attempted

to overturn) over forty years of case law, disregarded the settled

definition of “arising out of,” and severely limited the benefits of

workers’ compensation.

Uncertainty has undoubtedly been injected into the workers’

compensation system by the majority’s holding. Are the personal

comfort and other long-established doctrines of workers’

compensation law extant or extinct after today? I think these

doctrines survive since they spring from the Florida Supreme

Court; but how should the majority’s narrow interpretation of

occupational causation be seen by a claimant, employer, claim’s

adjuster, attorney, or JCC? Markets crave certainty, and the

Florida workers’ compensation system is a huge market. 7 By the

7 “In 2017, 242 privately-owned insurers actively wrote

workers’ compensation insurance in Florida. In total, private

sector insurers wrote $3,183,302,670 in premium.” 2018 Workers’

Compensation Annual Report, Florida Office of Insurance

Regulation,

https://www.floir.com/siteDocuments/2018WorkersCompensation

AnnualReport.pdf (last visited March 26, 2019).

23

majority’s opinion we have injected substantial uncertainty in the

multibillion-dollar Florida workers’ compensation marketplace.

V. Potential Impact of Loss of Exclusivity of Remedy

The Grand Bargain of workers’ compensation provides a

great benefit to employers and co-employees in mandating the

statutory benefits provided by workers’ compensation as the

exclusive benefits an employee can receive for accidental injury

from a covered employer. See § 440.11, Fla. Stat. But for

workers’ compensation protection, exclusivity of remedy would

not be present, and an employee could sue the employer and co-

employees for negligence. See Fidelity & Ca. Co. of N.Y. v.

Bedingfield, 60 So. 2d 489 (Fla. 1952).

By disclaiming workers’ compensation coverage (or more

likely its workers’ compensation carrier disclaiming coverage),

the employer may be opening itself and its employees to tort

liability. In Schroeder v. Peoplease Corp., 18 So. 3d 1165 (Fla. 1st

DCA 2009), this court determined that a genuine issue of

material fact existed as to whether the employer’s notice of denial

of workers’ compensation benefits precluded the employer from

asserting an immunity defense. “Whether estoppel is appropriate

in this case and whether the employer took irreconcilable

positions is dependent upon the meaning to be accorded the

notice of denial.” Id. at 1170. More recently, the Third District

affirmed the trial court’s denial of a motion for summary

judgment based upon the defense of workers’ compensation

immunity where the carrier denied benefits on grounds that the

employees’ injuries were not the result of an accident in the

course and scope of their employment. Ocean Reef Club, Inc. v.

Wilczewski, 99 So. 3d 1 (Fla. 3d DCA 2012).

The Fifth District agrees. In Byerley v. Citrus Publishing,

Inc., 725 So. 2d 1230 (Fla. 5th DCA 1999), the court concluded:

Thus, to permit an employer to deny benefits then

later assert immunity because the employee is entitled

to benefits would be to render this statutory provision [§

440.11, Fla. Stat.] meaningless. In this case, the notice

of denial stated that Byerley’s injury was not covered

24

because it did not occur in the course and scope of her

employment, Byerley accepted and relied on the denial,

bore her medical expenses, then sued the employer in

tort as permitted by the statute. Here, the elements of

estoppel are shown, and therefore, the employer is not

entitled to summary judgment on the basis of the

Workers’ Compensation Act.

Id. at 1232-33; see also Gil v. Tenet Healthsystem N. Shore, Inc.,

204 So. 3d 125 (Fla. 4th DCA 2016).

Here, even though Valcourt-Williams would likely not have a

tort cause of action, if we eliminate compensability for workplace

slip and falls — injuries incidental but not directly caused by

employment — other employees who suffer workplace injuries

which are no longer compensable would likely be able to sue.

Clever attorneys could bring civil actions against employers for

workplace falls caused by tripping over another’s property, failing

to provide safe footwear, failing to have non-skid flooring, failing

to inspect, failing to maintain the premises, and the myriad of

other grounds asserted for premises liability.

Additionally, eliminating compensability for workplace slip

and falls opens the possibility of an injured worker suing fellow

employees. Those fellow employees are currently immune from

suit for negligence under section 440.11(1), Florida Statutes. If

exclusivity does not apply, it is easy to imagine a cause of action

arising out of a fellow employee’s spilt beverages, bags or other

obstacles left on the floor, a foot sticking out from behind a desk,

or accidental jostling. In absence of workers’ compensation

exclusivity, one could see many situations where a fellow

employee risks tort liability for automobile accidents. See, e.g.

Abraham v. Dzafic, 666 So. 2d 232, 233 (Fla. 2d DCA 1995)

(finding a co-worker was immunized from suit for automobile

negligence where both co-workers were traveling from a jobsite

“to the same hotel for rest and relaxation”). 8

8 Furthermore, bring your child to work days and bring your

pet to work days would seem to be especially fraught with the

25

Today the majority opinion potentially eliminates the many

benefits of workers’ compensation and substitutes the

uncertainty of tort claims. 9 We wisely chose not to take that

action 23 years ago in Vigliotti when confronting what was then a

new statutory definition of “arising out of,” and nothing has

changed since. In Vigliotti, we expressed concern that to

construe “arising out of” as the majority does today “would result

in claimants . . . bringing suit in tort against their employers for

injuries they have suffered during work hours, while they are on

the employers’ premises, but when they are not literally

performing work.” 680 So. 2d at 487. Today the majority charts

a course towards uncertainty and away from the Legislative

intent “to assure the quick and efficient delivery of disability and

medical benefits to an injured worker and to facilitate the

worker’s return to gainful reemployment at a reasonable cost to

the employer.” § 440.015, Fla. Stat. (2016).

VI. Conclusion

Because the risk Valcourt-Williams encountered when she

was attending to her personal comfort on her refreshment break

was a neutral risk of a workplace trip and fall, she met her

burden to prove that her accident arose out of and in the course

and scope of her employment and was therefore compensable.

Because the majority reverses and goes far beyond what the E/C

sought in overturning or otherwise questioning many established

workers’ compensation cases, and in doing so opens employers

and co-employees to tort liability, I respectfully, but strongly,

dissent.

possibility of co-employee lawsuits under the majority’s change to

the meaning of “arising out of.”

9 Undoubtedly some injured workers would be happy for the

substitution. The potential damages for tort claims include non-

economic damages such as pain and suffering, emotional distress,

and loss of consortium which are not present as Florida workers’

compensation benefits.

26

MAKAR, J., dissenting.

I join Judge Bilbrey’s opinion, which explains why

jurisprudential change is unwarranted in this “trip-and-fall-

during-a-personal-comfort-break” case, which ought to be

affirmed based on the thorough factual findings and thoughtful

legal analysis in the JCC’s final summary order (see Appendix). A

few points merit mention.

To begin, the only issue in this workers’ compensation case is

whether the workplace accident that occurred during an

authorized comfort break arising from an authorized work-at-

home arrangement is compensable. As fate would have it, the

employer is a workers’ compensation claims processing company,

Sedgwick Claims Management Services, Inc. (“Sedgwick”), and

the employee, Tammitha Valcourt-Williams (“V-W”), is an

experienced workers’ compensation account claims adjuster.

Sedgwick and V-W entered a Telecommuting/Remote Work

Agreement for V-W to continue working for the company from her

new home in Arizona, from 4:00am-12:30pm PST, to match the

normal workday hours in Sedgwick’s home office in Lake Mary,

Florida, where she’d been working. In Arizona, V-W worked from

one of her townhome’s upstairs bedrooms, which she dedicated

entirely to her work for Sedgwick, and furnished with a desk,

chair and other office equipment at her own expense; Sedgwick

provided the computer.

On April 27, 2016, V-W took a mid-morning break, walked

downstairs to her kitchen, and tripped and fell while making

an instant cappuccino. 1 No dispute exists that Sedgwick

permitted its employees to take personal comfort breaks, that V-

W was on an authorized personal comfort break in a location in

her home where a break was allowable (her kitchen), and that

1 During the pendency of her workers’ compensation claim,

V-W emailed her fact pattern (without identifying it was her

situation) to defense counsel that the carrier had used in the past

who opined that it was compensable (“Unfortunately, this

appears to be a compensable claim, based on these facts.”).

27

she was engaging in a permissible activity (making a beverage)

when the trip and fall occurred. An accidental slip and fall under

such workaday circumstances is generally compensable—whether

it occurred in Sedgwick’s Lake Mary home office or in V-W’s

home office—under the personal comfort rule. Sentry Ins. Co. v.

Hamlin, 69 So. 3d 1065, 1072 (Fla. 1st DCA 2011) (“The courts

have consistently awarded benefits to accidental injuries suffered

while an employee is engaging in personal comfort activities,

based on the rationale that such activities provide a benefit to the

employer and are reasonably incidental to the performance of

work activities.”). As this Court held in Hamlin, an employee who

engages in acts of “personal comfort such as eating a snack,

smoking, or taking a restroom break” engages in “an activity that

the law deems as incidental to work” and thereby arising from

the work itself. Id. For example, injuries to a worker who is hit by

a car while walking across the street to a convenience store are

compensable because an “off-premises trip . . . motivated by a

desire to purchase cigarettes . . . was a foreseeable and non-

prohibited refreshment break activity.” Holly Hill Fruit Prods.,

Inc. v. Krider, 473 So. 2d 829, 830 (Fla. 1st DCA 1985); cf.

Hamlin, 69 So. 3d at 1072 (worker who was injured by a tow

truck attempting to repossess his car from the employer’s parking

lot, was deemed to not be on a personal comfort break and

thereby denied coverage).

Given this background, the question of “exceptional

importance” in this en banc hearing involving the personal

comfort rule is whether V-W tripping over her Shih Tzu—versus

her handbag, a kitchen chair, an open cabinet drawer, a

newspaper, spilled coffee/milk, a space heater, a rug/floor mat, a

doorsill, a Roomba,® untied shoelaces, a power cord/computer

cable, a banana peel, a recycling bin, a pet water bowl, her son’s

schoolbooks or spattered oil from her husband cooking breakfast, 2

a loose floorboard or uneven tile, a trash can or bag, or her own

feet while reading an email on her cellphone—renders her claim

2 V-W lives with her husband (a professional cook) and a 14-

year old son along with a 50-pound Husky, a 22-pound Shih Tzu,

and a cockatoo.

28

per se non-compensable. See Fla. R. App. P. 9.331(a) & (c) (2019)

(“En banc hearings and hearing” impermissible “unless the case

or issue is of exceptional importance”) (“A hearing en banc may

be ordered only by a district court of appeal on its own motion.”);

IOP 6.4 (2019).

To resolve this case, the key factual inquiry is whether

Sedgwick prohibited dogs in the home work environment and, if

not, was it foreseeable that an accident of this type might arise in

a personal comfort break. In this regard, it has been noted that

“[e]very ‘personal comfort’ case accepted as compensable by [this

Court] has met three prongs:

(1) The activity has been a traditional or routine

part of the work place experience (incidental to

work);

(2) The employee's participation in activity of this

type has been held to benefit the employer by

producing a refreshed employee; and

(3) The injury results from either a work created

risk or a neutral risk.

Hamlin, 69 So. 3d at 1072. Because the first two prongs are met

in this case, the remaining issue is whether the record evidence

establishes that the trip and fall was due to a work-related or

neutral risk. Id. (“The personal comfort rule only applies when

there is either a work-related, or neutral risk.”). Work-related

risks are those directly associated with the work performed, such

as risks of injury from dangerous or malfunctioning machines,

risks of increased occupational diseases, and the like. Neutral

risks are neither entirely work-related nor directly related to an

employee’s personal idiopathic health deficiencies; they are risks

common to employees, such as motor vehicle accidents, slips on

wet surfaces, falls on stairs, and so on.

Trips, slips, and falls are consistently among the top two-

three causes of workplace injuries and workers compensation

29

costs. 3 They are inherent in the workplace, whether it is a

company’s home office, a field office, a work-at-home office, or an

off-premises location where a non-prohibited refreshment break

occurs. The neutral risk of a fall exists in each of these locales

during a personal comfort break and is thereby work-related. Not

every injury that occurs during a personal comfort break is

compensable, of course, but slip and falls typically are because of

the control that employers have over the time, place, and manner

of work breaks; the neutral nature of slips and falls; and the

foreseeability test that weeds out implausible or questionable

scenarios. See Galaida v. Autozone, Inc., 882 So. 2d 1111, 1113

(Fla. 1st DCA 2004) (employee who brought a gun onto

employer’s premises and accidentally shot himself during a

cigarette break was not a “foreseeable consequence” to which

compensability applies under personal comfort rule). It is

expected that persons who are allowed to work from their homes

will take periodic breaks and may suffer compensable injuries

from falls arising from a range of causes. The exceptions to

compensability in these situations are where (a) an employee has

a personal idiopathic health condition or some other disqualifying

pre-existing personal factor that caused her injury, Medeiros v.

Residential Communities of Am., 481 So. 2d 92, 93 (Fla. 1st DCA

1986) (“When a claimant suffers from an idiopathic, or pre-

existing, condition which results in injury, the injury is

compensable only if the claimant can show that it ‘arose out of’

his employment.”); (b) the risk is one the employer controls and

has prohibited, Galaida, 882 So. 2d at 1112-13 (Fla. 1st DCA

2004) (noting that to cross the street to purchase cigarettes was a

“non-prohibited refreshment break,” but that firearm causing

injury was “strictly prohibited”); or (c) the risk encountered

during the break is unforeseeable, Id. at 1112 (“The personal

comfort doctrine incorporates a foreseeability element to the

3 See National Safety Council, Injury Facts, Top Work-Related

Causes, https://injuryfacts.nsc.org/work/work-overview/top-work-

related-injury-causes/ (last visited March 26, 2019); National

Safety Council, Injury Facts, Workers’ Compensation Costs,

https://injuryfacts.nsc.org/work/costs/workers-compensation-

costs/ (last visited March 26, 2019).

30

cause of injury.”). Only the latter two factors—foreseeability and

employer control—are at issue in this case.

Let’s first look at employer control of the home work

environment. Sedgwick’s pro forma telecommuting agreement,

which says the company “considers telecommuting to be an

appropriate work arrangement,” is slightly over three-pages,

single-spaced and addresses seven topics: the scope of the

agreement, the terms and termination of the agreement,

performance expectations, travel, work environment, equipment

and supplies, liability and miscellaneous matters. It makes clear

that telecommuting “is not an entitlement,” is “permitted in

[Sedgwick’s] sole discretion,” and embodies Sedgwick’s authority

to control the nature of the arrangement and the work-at-home

environment.

The agreement, however, says very little about the work-at-

home environment other than that the employee “must establish

an appropriate work environment free from distractions within

his or her home. A professional business environment must be

maintained that includes, but is not limited to, the elimination of

background noise” and must not be “a replacement for dependent

care.” The “home office” itself “must be clean and free from

obstructions” and the “work station” is to be “designed for safe,

comfortable work.” Photos of the “work station” might be required

“for approval” by Sedgwick (who “has the right to monitor

activity” on all its equipment and communications systems).

The agreement was silent on all other aspects of the home

office and its environment, including standards or guidelines for

bathrooms, kitchens and other places where

refreshment/personal comfort breaks would occur within the

home.

Sedgwick, despite its full control over the terms of the

telecommuting agreement and the conditions of the work-at-

home environment, asserts that it does not have such power;

instead, it asserts that it is V-W who has “sole control” over the

situation. Sedgwick characterizes this case as one in which the

JCC “declared a personal, uncontrollable, unforeseeable risk” as a

work-related risk. (Emphasis added). But that’s simply not the

31

case. Sedgwick had the authority to prohibit all pets, including

dogs, from the work environment but did not do so. At best, its

corporate representative testified in deposition only that pets

were not permitted in the Lake Mary, Florida, office, leaving

unanswered how Sedgwick handles its telecommuting

arrangements with each of its work-at-home employees.

Sedgwick points to the “free from obstruction” language in its

agreement, but that only applies to the “home office” (which is

not where V-W fell); Sedgwick also presented no definition or

interpretation of this term and how an employee would

understand that it included a dog. More importantly,

compensable workplace accidents occur even where a fall is over

an “obstruction”—an employer cannot eliminate the

compensability of all workplace trips/falls simply by pointing to a

policy that workspaces must be free of “obstructions.”

Because this case was decided on a final summary order,

Sedgwick has accepted the JCC’s factual findings without

challenge; Sedgwick only contests the legal conclusion of

compensability. The JCC found:

• Sedgwick “had the right to inspect [V-W’s] work

premises and review her work situation for safety and to

make sure that she had a comfortable working situation.

• Sedgwick “never did inspect or view her home office set-

up either in person or by video or photographs.”

• “The Telecommuting Agreement did not limit the

personal property that the Claimant could have in her

home. The agreement notably required the office space to

be free from hazard. Yet there is no evidence of hazard in

the office space to suggest that the claimant was non-

compliant with the agreement.”

• V-W says “she owned dogs when she worked” in the

Lake Mary office,” but “whether this is true or not, the

Telecommuting Agreement does not limit the Claimant's

ability to own and possess pets in her home office.”

These factual findings, among others in the order (see Appendix),

buttress the conclusion that Sedgwick had control over the home

environment (which it did not exercise) and that Sedgwick failed

to prove that V-W was prohibited from having her personal

32

property, including her Shih Tzu, in her kitchen where the

refreshment break occurred. In essence, V-W’s home environment

was her work environment, and Sedgwick had the authority to

control and impose restrictions as to the risk at issue despite its

failure to do so. Sandberg v. JC Penney Co. Inc., 260 P.3d 495,

500 (Or. Ct. App. 2011) (holding employer’s claim that it lacked

control over the risk of a dog in a work-at-home studio “is

unwarranted because, although the employer may not have had

control over claimant's dog, it had control over whether claimant

worked away from the studio.”). The ordinary hazards in an

employee’s home office, kitchen or bathroom that are encountered

in connection with a work-related activity, such as a refreshment

break, are hazards of the employment unless excluded by the

employer; here, they were not, thereby supporting

compensability. Moreover, no evidence suggests that V-W

“imported” a purely personal risk into the workplace, such as an

idiopathic condition; see Leon County Sch. Bd. v. Grimes, 548 So.

2d 205 (Fla. 1989) (claimaint’s fall, which resulted solely from

pre-existing personal medical condition, was not compensable);

instead, Sedgwick authorized the work-at-home arrangement and

did not exclude a common houseful feature, a dog, from its

telecommuting agreement and must bear the foreseeable

consequences.

Next, let’s turn to foreseeability. Was it foreseeable that V-W

might fall in the way she did, i.e., over her Shih Tzu, during a

refreshment break? V-W says that Sedgwick knew she had dogs

in her home because “her dogs [were] a topic of conversation”

when she worked in Sedgwick’s Lake Mary office. She argued

that “it is foreseeable that a person who is allowed to work from

their home will take periodic breaks and may suffer injuries from

falls regardless of the cause of the fall. Had she fallen on a piece

of ice that had melted or a plumbing leak or some foreign object

that was on the floor, this would still be a compensable accident.”

The JCC found that Sedgwick’s telecommuting agreement

did not preclude pets in the home work environment, which

makes a trip over a pet an obvious possibility. It’s no different

than if Sedgwick permitted dogs in its own workplace, for

example, by allowing comfort/therapy dogs, by providing ADA

accommodations with service dogs (something many employers—

33

including courts—have done) or by affirmatively embracing the

dog-at-work experience (as many companies have done, including

major ones like Amazon, Google, and Ticketmaster). See Brittany

Shoot, 10 Pet-Friendly Companies Where It's Always Take

Your Dog to Work Day, F ORTUNE (June 22, 2018),

http://fortune.com/2018/06/22/take-your-dog-to-work-day-pet-

friendly-companies/ (noting that “Take Your Dog to Work Day®”

is the Friday after Father’s Day). And the prevalence of pets in

the home is substantial and increasing: A 2017-2018 industry

survey found that 68% of U.S. households have pets, up from 56%

in 1988. See Pet Industry Market Size & Ownership Statistics,

AMERICAN PET PRODUCTS ASSOCIATION,

https://www.americanpetproducts.org/press_industrytrends.asp

(last visited Mar. 25, 2019). Of the 84.6 million homes having

pets, 60.2 million had dogs, which is roughly 48% of all

households. Id. Cats came in second at 38%. Id. A prior survey in

2012 found that the percent of households owning dogs was

36.5%, comprising 69.9 million dogs in 43.3 million homes. See

U.S. Pet Ownership Statistics, AMERICAN VETERINARY MEDICAL

ASSOCIATION, https://www.avma.org/KB/Resources/-

Statistics/Pages/Market-research-statistics-US-pet-

ownership.aspx (last visited March 21, 2019). Cats, again, were a

close second at 30.4%. Id. These data make clear that employers

should reasonably foresee that employees have dogs and other

pets in their homes with their attendant benefits and risks.

By casting dog ownership as a purely and exclusively

personal risk that doesn’t “arise out of” employment as a matter

of law, the Court thereby categorically prohibits coverage for

workplace accidents even where an employer affirmatively allows

pets in the workplace. As a result, 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, which thwarts the point of the workers’ compensation

system. See generally Taylor v. Sch. Bd. of Brevard County, 888

So. 2d 1, 5 (Fla. 2004) (“In the ordinary case, when we are faced

with a situation where an employee is injured on the job there

exists a natural inference that the injury is covered by the

Legislature's workers' compensation scheme. That is the

fundamental purpose of the law, to provide benefits for work

34

place injuries in place of common law remedies.”). Alternatively,

employers with pet-friendly policies will have to enter

indemnification agreements for workplace accidents or obtain

supplemental insurance coverage, both options raising costs and

stifling the modern trend that sees multiple benefits for canine-

friendly workplaces (such as decreased stress levels, promoting a

friendlier/relaxed atmosphere, attracting top young millennial

talent, and so on). Not every business wants or can be pet-

friendly (due to allergies, unsuitability of some workplaces for

pets, and like issues), but judicially imposing a per se rule that

“dogs = personal risk = no coverage” unnecessarily dampens

workplace innovation and managerial creativity with no upside.

Finally, as Judge Bilbrey points out, this is a “course and

scope” case, not an “arising out of employment” case. That’s

because the personal comfort doctrine, by its very nature, arises

solely out of the need for employers to make allowance for

authorized breaks to tend to personal needs during the workday;

it is an exclusively work-related doctrine because it exists solely

to facilitate the employer-employee relationship during work

hours. It is casually connected to and originates solely from

employment. Why else would a personal comfort break of short

duration be authorized other than to facilitate the employment

relationship during the workday? One doesn’t take a personal

comfort break unless one is at work (which explains why V-W

tripping over her dog on a Saturday/Sunday wouldn’t be

compensable). And wouldn’t it be an oddity to exclude all

personal risks from coverage for personal comfort breaks? Most

items over which V-W might trip and fall in her kitchen or office

could be dubbed as “personal” because she owns them and uses

them for her personal benefit (chair, rug, etc.), but that doesn’t

provide a limiting principle for denying coverage. Instead, the

better approach is the existing one in personal comfort cases,

which limits “personal risk” to the defined category of pre-

existing idiopathic conditions and focuses on the factual findings

of each case to make an assessment as to whether the risk is a

“neutral” one the employer allowed/prohibited and the

foreseeability of the risk.

All this said, given that Sedgwick did not limit pets in V-W’s

work-at-home agreement, made no effort to control risks in the

35

kitchen or other areas where home comfort breaks might occur,

and knew or should have known that V-W had pets at home, the

foreseeability of a slip and fall over a dog is clear, particularly in

light of the data on the extent of home pet ownership and the

growing trend of allowing dogs in the workplace. As the Supreme

Court said fifty years ago, the “statutory phrase ‘arising out of

and in the course of employment,’ which appears in most

workmen's compensation laws, is deceptively simple and

litigiously prolific.” Cardillo v. Liberty Mut. Ins. Co., 330 U.S.

469, 479 (1947). This dog-at-work litigation proves this timeworn

point. Q.E.D.

APPENDIX

OVERVIEW

Ms. Valcourt-Williams, a 53 year old account claims

adjuster, sustained injuries from a trip and fall accident on

April 27, 2016 that she maintains occurred within the

course and scope of her employment with Sedgwick Claims

Management Services. The accident occurred at her home in

Sierra Vista, Arizona while she was employed as a remote

employee for the company under a telecommuting remote

employment agreement. The E/SA contends that under the

Telecommuting Agreement entered into between the

parties, and given the undisputed details of Ms. Valcourt-

Williams fall and any alleged injuries, the accident is not

compensable as a matter of law.

***

In regard to the issue on the merits of the Motion for

Summary Final Order, the Claimant maintains she

complied with the terms of the Telecommuting Agreement

and that the accident arose out of and occurred within the

course and scope of employment consistent with the case law

governing the personal comfort doctrine. The E/SA submits

that the accident did not arise out of employment and as

such its compensability should be denied. Given the

undisputed facts in this case and for the reasons stated

below I find the claimant's accident of April 27, 2016 is

36

compensable and that the Claimant's accident arose out of

and in the course and scope of her employment.

Claimant was hired by the Employer in 2011 and she

worked in the Lake Mary office of the Employer until

December of 2014 when she and the Employer entered into a

Telecommuting/Remote Work Agreement (hereinafter

referred to as Telecommuting Agreement). This agreement

provided that the Claimant would create a work

environment in her home for the employer. I find her home

became her office during her regular working hours which

were from 7am-3pm Lake Mary, Florida time.

Pursuant to the Telecommuting Agreement, Claimant

converted a room in her town- home to an office specifically

designated for her adjusting work with Sedgwick. As part of

her employment, she was required to work specific hours

and was allowed to take periodic breaks just as though she

was working in the Sedgwick office in Lake Mary, Florida.

She was required to be working from 7am to 3pm Lake

Mary, Florida time. Her designated work location was from

her home in Sierra Vista, Arizona. She was required to set

up specific equipment, some of which was provided by the

Employer, in her home and convert some space in her home

to accommodate the office set up required by the Employer.

Under the Telecommuting Agreement, the Employer had the

right to inspect her work premises and review her work

situation for safety and to make sure that she had a

comfortable working situation. The Employer never did

inspect or view her home office set-up either in person or by

video or photographs. The Telecommuting Agreement did

not limit the personal property that the Claimant could have

in her home. The agreement notably required the office

space to be free from hazard. Yet there is no evidence of

hazard in the office space to suggest that the claimant was

non-compliant with the agreement.

The facts are not in dispute. Claimant suffered and

accident during the course of her employment when she had

taken a mid-morning break to get a cup of coffee. She uses a

bedroom on the second floor of her two-story townhome as

37

her dedicated home office. On April 27, 2016 at 7:00 a.m.

Pacific Standard time (10:00 Eastern) she suffered her

accident. According to her un-contradicted testimony the

Claimant begins work at 4:00 a.m. Pacific Standard time in

order to work for her employer for its Florida hours of 7:00

a.m. until 3:30 p.m. Her accident occurred when she left her

upstairs office and went downstairs to go into the kitchen.

She retrieved a cup from the cupboard to make some instant

cappuccino and when she turned around she tripped over

her dog and fell landing on her right knee and hip

sustaining according to her, injuries. As to the extent there

may be justiciable controversy as to whether an injury

occurred, such matter is not a proper subject for a motion for

summary final order and will ultimately be decided from

consideration of the totality of the evidence produced and

received at the final hearing.

The accident was reported to her employer immediately

after she completed making her coffee and returned upstairs

to her home office. The parties acknowledge that the accident

occurred during the time period the claimant was to work for

the employer. Claimant represents that she owned dogs when

she worked for the Employer in the Lake Mary office from

2011 through 2014. Regardless of whether this is true or not,

the Telecommuting Agreement does not limit the Claimant's

ability to own and possess pets in her home office.

I find the Claimant's April 27, 2016 accident arises out

of her employment and is therefore compensable. I find the

fall, which was accidental, occurred during her normal work

hours and at the time that it did as a result of her

refreshment break from work for the employer. I find the

comfort break was reasonable and to be anticipated and

foreseeable by the Employer. The claimant was not in an

area that she was forbidden to be and was in the kitchen of

her home which would be similar to the break room at an

office. The fact that the claimant was allowed to operate out

of her home, I find that it was reasonably foreseeable to the

employer that the Claimant would take periodic breaks for

her comfort to attend to personal needs including coffee

breaks and bathroom breaks. I further find that the

38

claimant attending to a reasonable personal comfort needs is

conducive to the facilitation of the employment. Thus I find

from the evidence presented no deviation from employment

and no temporary abandonment of the job can be reasonably

inferred. I find that her comfort break was not in violation of

any company rule or was shown in the Telecommuting

Agreement to be prohibited. Available use of her kitchen and

bathroom would be necessary to meet her personal comfort

needs.

I do not find that at the time of her accident the

claimant was on a purely personal mission having no

relationship from work nor do I find that the Claimant took

any affirmative action that took her out of her normal work

and into a purely personal situation. The facts in this case

in my opinion are clearly distinguishable from the facts in

Sentry Insurance Company v.Hamlin, 69 So.3d 1065 (Fla. 1st

DCA 2011). In Sentry, the worker was not pursuing personal

comfort but rather was on a purely personal mission of

attempting to recover personal items from his vehicle that

was being repossessed and being towed away at the time of

his injury. None of the items he was trying to retrieve were

related to work and he took the affirmative action by going

into his repossessed vehicle while it was being towed away.

It was by those personal efforts that the workers' injury was

caused. He was performing an activity clearly of no benefit

to the employer whatsoever. The claimant here was

obtaining refreshment and nourishment to continue in her

work for the employer.

The E/SA argues that the accident was not a work

created risk. But this tribunal rejects this argument as

clearly the Claimant was in the course and scope of her

employment at a mid­ morning break. She was on a work

permitted break in a "break room" of which the Employer

either knew or should have known was a place where she

would getting [sic] something to drink which is permitted

by her employer. It was a neutral risk as permitted under

the Sentry Insurance Company case analysis. I find the

Employer imported the risk into the claimant' s home by

authorizing and permitting a remote office to be

39

established with reasonable expectations that comfort and

refreshment breaks would be required during her eight

hour work day. The Employer by virtue of the

Telecommuting agreement imported the work environment

into the claimant's home and the Claimant' s home into the

work environment. The Employer's Telecommuting

Agreement did not restrict the area where she could take

breaks, where she could use the bathroom or what personal

property she could keep in her home, including pets. Sy

Jenkins, the adjuster for the E/SA, admitted that the

Telecommuting Agreement did not restrict the Claimant' s

ability to have pets in her home. He further admitted that

the Employer had the right to inspect and obtain

photographs of the Claimant's work environment and

never asked to do either. The Employer created to my mind

what is tantamount to a satellite office for the Employer

from which the Claimant was working and with it the risk

of injury inside the home during normal working hours and

conditions as long as the Claimant would be within the

course and scope of her employment.

I find that the claimant was required to get up early

and work in order to accommodate the employer's schedule

in Lake Mary, Florida. Therefore she had to get up at 4:00

a.m. Pacific Standard time (an extremely early time for most

people) in order to be at work for the employer in Florida at

7:00 a.m. It was reasonably foreseeable that the claimant

would have to take comfort or refreshment breaks and the

logical place with which she could do so was in her home

kitchen and bathrooms. Such personal comfort activities

provide a benefit to the employer and are reasonably

incidental to the performance of her work activities.

Therefore I find the accident indeed flowed from the

employment as a natural consequence and that taking a

break to get something to drink during normal working

hours has a relationship to her work and is a necessary

function of her being able to continue to work for 8 hours

during the day. Bayfront Med. Ctr. v. Harding, 653 So.2d

1140 (Fla. 1st DCA 1995) I do not find as the E/SA argues

that the Claimant imported the risk into the work place. I

find the tripping over the dog would be no different than if

40

she had slipped on a liquid substance on the floor, on a lose

kitchen floor mat, or over her own two feet. I find the

accident would be compensable.

In regard to the above findings I do not find that the

accident was distinctly and wholly personal in nature.

Claimant was not carrying out a mission that was purely

personal and not related to work, incidentally or otherwise.

Had the claimant been playing with the dog and was injured

in the process of doing so, then I would find the accident

would not be compensable, that there would be no job

connectedness and that there would indeed be a deviation

from employment to otherwise bar compensability. Such was

not the case here. Thus this case is distinguishable from the

trial level case of Kimberly Shepherd v. The Pantry, 13-

013620WWA (Decided 12/20/13) that the E/SA offers for my

consideration. And the facts in this case are also

significantly different from the Sentry case upon which the

E/SA relies.

In summary I find the claimant complied with the

Telecommuting Agreement. Her home office (upstairs

bedroom dedicated as her office) was apparently free of any

obstructions and included those items required to make the

office safe and functional. At least there was no evidence

that it was not. There is no showing that the accident

actually occurred in the home office because of an

obstruction therein. Furthermore the agreement does not

exclusively deny all accidents that occur in other areas of the

home which appears to be the suggested argument in the

E/SA' s motion. The specific language is that, "injuries

occurring in other locations in Colleague's home ordinarily

will not be covered." As heretofore alluded to, I find it is

reasonable that accidents that occur in the bathroom or

kitchen may be compensable as those areas would be

necessary for a worker to meet their personal comfort needs.

I find that it would be most illogical for the claimant to leave

her home in order to meet those personal comfort needs.

Especially given the claimant gets up as early as 4:00 a.m.

in order to render the adjusting services to her employer in

Florida. Meeting her personal comfort needs adheres to the

41

benefit of the employer and flows from the employment as a

natural consequence. Holly Hill Fruit Products, Inc. v.

Krider, 473 So.2d 829 (Fla. 1st DCA 1985) It is foreseeable

that the claimant may want and may need to take a coffee

break to keep her mind alert and to remain focused in her

work. It is reasonable to conclude that the claimant who is

permitted to work from her home would go to her kitchen on

breaks. I find that she did not leave her work premises at

the time of the injury as she was in an area in her general

and necessary work environment. I find there is indeed the

connection between the Claimant's employment and her

accident which arose from her employment. I find the

personal comfort doctrine does apply in this case

notwithstanding the E/SA' s protestations to the contrary.

Lastly I find the claimant did not do anything affirmatively

to cause her accident. It was an unexpected event or result

that happened suddenly.

I do not find under these facts presented that the

claimant imported her personal property, the dog, as to

affirmatively cause this claim to be non-compensable.

Additionally there is no clear and undisputed evidence that

there was any personal medical condition of the Claimant

that caused her fall. As such her fall at this juncture is found

to be compensable. Walker v.Broadview Assisted Living, 95

So.3d 942, (Fla.1st DCA 2012)

In order for summary judgment to be granted, there

must be no genuine issue as to any material fact and one of

the parties must be entitled to judgment as a matter oflaw.

"Summary judgment is proper only where the pleading and

record do not reflect conflicting issues of material fact." See

Levey G. Getelman, 408 So.2d 663,665 (Fla. 3rd DCA

1981). If issues of fact exist and the slightest doubt remains,

summary judgment cannot be granted.

All doubts as to the existence of genuine issues of

material fact are to be resolved against the moving party.

The moving party is required to produce probative evidence

indicating conclusively that genuine issues of material fact

do not exist. Until such time as it does so, the opposing party

42

is under no obligation to show that issues remain to be tried.

See Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966) and

Fletcher Co. v. Melroe Mfg. Co., 261 So.2d191, 193 (Fla.

1st DCA 1972). Once the moving party introduces evidence

of its prima facie right to summary relief, the non-moving

party must produce competent counter evidence. Simply

asserting that an issue of fact exists will not suffice. See

Landers v. Milton, 370 So.2d 368 (Fla. 1979) and

Almand Construction Co.• Inc.• v. Evans, 547 So.2d

626, 628 (Fla. 1989).

Upon review of the record submitted, considering

the arguments of counsel and being otherwise advised in

the premises, I find that there are no genuine issues of

material fact as to only certain issues.

a. I find that the Claimant was in the course and scope

of her employment.

b. I find based on the above that she had an accident

during her normal working hours on the work

premises established by the Telecommuting

Agreement and that her accident and possibly her

injuries arose out of and in the course of her

employment as a Telecommuting Employee

working from a satellite office of the Employer.

c. I find that the Claimant sustained a compensable

workers' compensation accident when she fell on

her mid-morning break and was reportedly injured

as a result of that fall.

d. I reserve jurisdiction to determine what injuries,

if any, were directly related to her fall of April 27,

2016 and this will be determined following the

final hearing on November 8, 2016.

WHEREFORE IT IS HEREBY ORDERED AND

ADmDGED that:

The Employer/Servicing-Agent' s Motion for

Summary Final Order is DENIED, and I find the

Claimant sustained a compensable workers'

compensation accident on April 27, 2016 which arose

43

out of and in the course of her employment with the

Employer.

DONE AND ORDERED in Chambers in Orlando,

Orange County, Florida.

Honorable W. James Condry Judge of

Compensation Claims

400 W. Robinson Street, Suite 608-

North Orlando, Florida 32801

_____________________________

James N. McConnaughhay of McConnaughhay, Coonrod, Pope

Weaver, & Stern, P.A., Tallahassee, and Elizabeth V. Bogle,

Pensacola, for Appellants.

Bill McCabe, Longwood, and Glen D. Wieland, Orlando, for

Appellee.

44