Opinion
Case No. 1D02-3605.
Opinion filed February 24, 2004.
An appeal from the Judge of Compensation Claims, Wilbur W. Anderson, Judge.
Richard A. Mullaney, General Counsel, and Douglass E. Myers, Jr., Assistant General Counsel, of the Office of General Counsel, Jacksonville for Appellants/Cross-Appellees.
Kristy J. Gavin and Kevin Blazs of Gobelman, Love, Gavin, Blazs Mathis, Jacksonville for Appellee/Cross-Appellant.
This is a workers' compensation action originally brought by Appellee David Golly, an employee of Appellant Duval County School Board. Mr. Golly suffered a severe closed head injury when he fell on a concrete walkway at Terry Parker High School in Jacksonville. The fall resulted from a medical condition not related to the workplace. In an extremely thorough and detailed compensation order, the Judge of Compensation Claims (JCC) found that, despite the idiopathic nature of the fall, because Mr. Golly suffered injuries from impact with a concrete walkway, the injuries must be compensable. The JCC reached his ruling by applyingProtectu Awning Shutter Co. v. Cline, 16 So.2d 342 (Fla. 1944), which held that a concrete floor was a special hazard of employment. We reverse. We affirm on the issue raised on cross-appeal because the JCC's findings are supported by competent substantial evidence.
On March 3, 2000, Mr. Golly was employed as a teacher at Terry Parker High School. While standing on a level concrete walkway during a planning period, Mr. Golly fell to the ground and sustained a severe closed head injury and broken left thigh. The medical testimony in the case concluded that Mr. Golly's fall was due to a seizure and syncopal episode. The JCC found, and competent substantial evidence supports, that the seizure and syncopal episode resulted from alcohol withdrawal syndrome, unrelated to Mr. Golly's employment as a high school teacher. Quite obviously, Mr. Golly's serious injuries did not result simply because he lost consciousness. Instead, these injuries resulted from his impact with the concrete walkway. The question in this case is, thus, whether a workplace impact with a level concrete surface, following a fall precipitated by an idiopathic or pre-existing condition, is compensable as a matter of law. This question has to do with what has been called the increased or special hazard doctrine in Florida law. Because the JCC concluded, as a matter of law, that the concrete floor should be considered a special hazard of employment, we review this matter de novo. See Gilbreth v. Genesis Eldercare, 821 So.2d 1226, 1228 (Fla. 1st DCA 2002).
In Cline, the 67-year-old claimant suffered a fainting spell, apparently related to a heart problem, and fell, striking his head against a concrete floor causing a skull fracture and death. 16 So.2d at 343. The supreme court characterized the issue as whether "the injury arises out of and in the course of the employment." Id. The court then described the public policy behind the Worker's Compensation Act in 1944:
The purpose of the act is to shoulder on industry the expense incident to the hazards of industry; to lift from the public the burden to support those incapacitated by industry and to ultimately pass on to the consumers of the products of industry such expenses.
Id. The court built upon this pronouncement by observing, "In this critical war period, industry requires the services of the aged and infirm. The Compensation Law is based primarily on social responsibility of one to another." Id. The court sustained recovery. Id. Importantly, the court characterized the appeal as "a border line case." Id. Underlying the ruling is the court's conclusion, apparently arrived at based upon its own knowledge, rather than evidence in the case, that although Mr. Cline might have fallen and sustained a fatal injury in his own house, such would be less likely had he remained "in the quiet of his own home, for without the physical exertion encountered in his work by a man of his age and physical condition, the chances of his falling were less likely." Id.
In Foxworth v. Florida Industrial Commission, claimant, an employee of the Industrial Commission, blacked out, fell and struck a hotel lobby floor. 86 So.2d 147 (Fla. 1955). The court examined the doctrine of increased hazard as applied to an idiopathic fall onto a level floor, and noted that area is "highly controversial." Id. at 151. The court noted that, following Cline, Florida has "favored the more liberal view allowing recovery." Id. Nevertheless, the court characterized the Cline facts as "the outer limits of the doctrine." Id. "To extend the rule further would be to eradicate completely the statutory requirement that the injury must be one arising out of the employment. The employment in some manner must contribute an increased hazard peculiar to the employment." Id. The court upheld the denial of benefits. Id. at 152.
In Lovett v. Gore Newspapers, the supreme court upheld recovery for a worker who, while working an overtime shift, felt ill, and then fell to a "tiled concrete floor" aggravating a pre-existing back condition. 419 So.2d 306, 308 (Fla. 1982). The supreme court allowed a recovery, applying the special hazard doctrine. Id. The court also noted, in a comment that we do not find extraneous, "petitioner was required to work two hours beyond her normal eight-hour shift despite her protestations that she was not feeling well." Id. This factor, combined with the fall to a concrete floor, led the supreme court to conclude, "[I]t cannot fairly be said that petitioner would just as likely have sustained an injury such as the one that occurred if she had been in her own home." Id.
In addition to relying upon the foregoing supreme court cases, appellee also relies upon our decision in Haynes v. World Color Press, 794 So.2d 674 (Fla. 1st DCA 2001). Claimant Haynes had a syncopal episode resulting in a fall, apparently, to a concrete floor, resulting also in the entanglement of her leg in a machine. Id. at 675. On appeal, Haynes argued that the JCC's finding that the syncopal episode, rather than a slip on water, caused the fall was not supported by competent substantial evidence. Id. This court rejected that contention. Id. Haynes also argued that even if she had a syncopal episode, the JCC should have allowed compensation based upon the special hazard doctrine of Cline andFoxworth. Id. This court found the second issue to be unpreserved and therefore did not reach it. Id. Here, appellee Golly grasps upon the language used by the Haynes court to characterize the unpreserved argument. This court described the unpreserved allegation as an "increased hazard" posed by "the concrete floor upon which she fell, or the machine in which her leg was entangled." Id.
This court, of course, continues to recognize the special or increased hazard doctrine. Discussing Foxworth, this court has noted, "When the fall is onto a level surface, compensability is justified when the surface itself is an unusual hazard, such as a hard concrete floor."Hernando County Sch. Bd. v. Dokoupil, 667 So.2d 275, 276 (Fla. 1st DCA 1995). Although we observed in Dokoupil that a concrete floor had been previously held an unusual hazard, we directed that the JCC must now apply the major contributing cause test required by section 440.02(32), Florida Statutes (Supp. 1994). Id. at 277. That statute provides:
"Arising 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.
Our cases confirm that the present test is different from that used before the major statutory revision several years ago. "As this court has recognized, the 1994 amendments to the workers' compensation law changed the prior case law definition of `arising out of' as used in chapter 440." Orange County MIS Dep't v. Hak, 710 So.2d 998, 999 (Fla. 1st DCA 1998). We have characterized the pre-1994 law as follows:
In the absence of an idiopathic or preexisting condition, a claimant's employment had to constitute only a contributing, competent, precipitating, or accelerating cause of the accident or injury. If the claimant had an idiopathic or preexisting condition, then for the injury to be compensable, the employment had to expose the 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."
Vigliotti v. K-mart, 680 So.2d 466, 468 (Fla. 1st DCA 1996). Now, under the terms of section 440.02(32), "the claimant must establish that the employment occurrence is the most preponderant cause of the injury."Hak, 710 So.2d at 999. The statutory changes, as we have construed them, very strongly suggest that a claimant must now make a specialized, fact-based showing, in order to succeed under the increased hazard doctrine.
Applying the major contributing cause statute to the present case, we cannot say that a fall to a level concrete floor is automatically compensable, irrespective of the cause of the fall. The statute now directs the JCC to make a determination of whether work performed in the course and scope of employment is the major contributing cause of the injury. The supreme court in 1944 had no major contributing cause statute with which to contend. Moreover, the supreme court, in an admittedly "border line case," applied a paternalistic public policy that is no longer justified under the Florida Workers' Compensation Act. Cline, 16 So.2d at 343. As is now well known, the Legislature, upon amending the Workers' Compensation Act in 1993, set out a legislative intent that differed from that which had prevailed earlier. See Ch. 93-415, Laws of Fla. Among other things, the Legislature stated:
It is the specific intent of the Legislature that workers' compensation cases shall be decided on their merits. . . . In addition, it is the intent of the Legislature that the facts in a workers' compensation case are not to be interpreted liberally in favor of either the rights of the injured worker or the rights of the employer. . . . [T]he laws pertaining to workers' compensation are to be construed in accordance with the basic principles of statutory construction and not liberally in favor of either employee or employer.
§ 440.015, Fla Stat. (1999).
The JCC in the present case did not make a particularized finding of special or increased hazard. Instead, the JCC felt constrained by Cline to find that the concrete surface was, as a matter of law, an increased hazard. This conclusion is clearly set out in paragraph 8 of the compensation order. The major contributing cause statute, as applied by this court in Dokoupil, requires a particularized finding of "whether the claimant's conditions of employment created an increased risk of the injuries he sustained." 667 So.2d at 277.
Accordingly, we REVERSE the order on appeal, and REMAND for further proceedings consistent with this opinion. We AFFIRM the issue raised on cross-appeal.
BOOTH, J., concurs.
ERVIN, J., dissents with opinion.
It is unclear from the majority's opinion whether it has concluded that the legislature's enactment of the major-contributing-cause (MCC) statutes has repealed the increased-hazard doctrine, recognized in this jurisdiction for 60 years. If the doctrine remains viable, I see no reason to remand for the judge of compensation claims (JCC) to determine whether the conditions of employment (here, a concrete walkway) created an increased risk to claimant. Remand for such purpose in Hernando County School Board v. Dokoupil, 667 So.2d 275 (Fla. 1st DCA 1995), was altogether appropriate in that, unlike the present case, there was no evidence of an increased hazard. The court specifically recognized that [w]hen the fall is onto a level surface, compensability is justified when the surface itself is an unusual hazard, such as a hard concrete floor. Id. at 276.
I confess my own uncertainty over the doctrine's continued applicability; nevertheless, I see no need to reverse and remand for further proceedings, because, even assuming that the doctrine has been legislatively superseded, the order is, in my judgment, supported by competent, substantial evidence, and for that reason alone should be affirmed. While finding that the fall onto a concrete walkway was the result of a seizure and syncopal episode, the JCC also found that those conditions did not directly cause claimant's injuries, but that his impact with the walkway was the MCC of the injuries. The judge next decided, after considering applicable case law, including Protectu Awning Shutter Co. v. Cline, 16 So.2d 342 (Fla. 1944), that a concrete surface constitutes a special hazard of employment. I am therefore of the opinion that further remand for the purpose directed by the majority is unnecessary, because it appears that the JCC has already made such finding.
In determining that the surface with which claimant's body collided was a special hazard of employment, the JCC was obviously attempting to comply with the legal test of causation, which has traditionally been applied to idiopathic injuries in this jurisdiction. The increased-hazard doctrine is one part of the legal/medical causation test Professor Larson has advocated for determining the compensability of injuries occurring during the course of employment in which a personal contribution is involved. In adopting this test in Market Food Distributors, Inc. v. Levenson, 383 So.2d 726, 727 (Fla. 1st DCA 1980), we made the following pertinent observations:
Professor Larson's analysis of the problem relating to idiopathic cases is helpful. He suggests the problem can best be resolved by considering the legal cause of the injury, and then, its medical cause. 1B A. Larson, Workmen's Compensation Law, 38.83 at 7-233 (1980). The inquiry focuses first upon what kind of exertion satisfies the legal test, i.e., whether the injury is one caused by the employment, and, if the exertion is legally sufficient to support compensation, next whether medically it caused the injury. Id. at 7-235. As to the legal test, if the employee brings to the job some personal element of risk unrelated to his employment (for example, a preexisting condition), before the injury can be found compensable, the employment must involve an exertion greater than that normally performed by the employee during his non-employment life. But, if the employee has no prior weakness or disease, any exertion connected with the employment and causally connected with the injury as a matter of medical fact is adequate to satisfy the legal test of causation. In both cases it is still necessary for a claimant to establish that medically the particular exertion causally contributed to the injury. Id. at 7-237.
(Emphasis added.)
As applied to idiopathic-fall cases, the legal test is satisfied by proof showing that the employment contributes to the risk or aggravates the injury. See Foxworth v. Florida Indus. Comm'n, 86 So.2d 147, 151 (Fla. 1955). This test, of course, was devised at a time when, as we observed in Orange County MIS Department v. Hak, 710 So.2d 998, 999 (Fla. 1st DCA 1998), a claimant was required to prove only that the employment was a contributing, competent, precipitating, or accelerating cause of the accident or injury. It is entirely possible that the separate legal test of causation is no longer applicable by reason of the legislative amendments. Nevertheless, it appears that the MCC statute in effect at the time of claimant's accident, pertaining to injuries suffered at a workplace in which a personal element is involved, still requires proof that the employment in some way contributes to the risk or aggravates an injury. We have interpreted the statute to mean that the employment contribution must be greater than any other single cause. See Closet Maid v. Sykes, 763 So.2d 377, 381 (Fla. 1st DCA 2000).
Section 440.09(1)(b), Florida Statutes (2000), provides:
If an injury arising out of and in the course of employment combines with a preexisting disease or condition to cause or prolong disability or need for treatment, the employer must pay compensation or benefits required by this chapter only to the extent that the injury arising out of and in the course of employment is and remains the major contributing cause of the disability or need for treatment.
The statute has since been amended to require the employer to pay compensation or benefits only to the extent that the injury arising out of and in the course of employment is and remains more than 50 percent responsible for the injury as compared to all other causes combined[.] 440.09(1)(b), Fla. Stat. (2003).
Thus, if the MCC amendments no longer demand the claimant to establish the legal cause of his injuries that were attributable in part to a preexisting condition, the claimant must still, in my judgment, supply sufficient medical proof that the workplace's contribution to the risk was greater than any other single cause of the injuries he suffered. Professor Larson explains the difference in proof between the two tests as follows:
Under the legal test, the law must define what kind of exertion satisfies the test of arising out of the employment.
Under the medical test, the doctors must say whether the exertion (having been held legally sufficient to support compensation) in fact caused this collapse.
2 A. Larson, Larson's Workers Compensation Law 46.03[1] (2003) [hereinafter Larson].
Medical causation was proved in the case below not by the strength of a legal presumption, but through the testimony of witnesses relating that the concrete walkway on which claimant fell resulted in devastating injuries, and that it was a hazard he would not normally encounter in his non-employment life, where a fall would far more likely occur on a carpeted or linoleum-covered floor; hence, the injuries he suffered at the workplace would reasonably be expected to be greater than, say, had he fallen at home. Accordingly, it is my opinion that when a prior condition is involved, a claimant can establish that the employment was the MCC of injury by showing, through a combination of lay and medical proof, that the employment was the direct cause of the injury, and that it aggravated the claimant's injuries or increased the risk of harm.
A closed head injury and a left femur fracture led the JCC to direct the employer/carrier to provide claimant with, among other things, permanent total disability and assisted-living or attendant-care benefits. Neither of these awards has been challenged in this appeal.
Claimant testified that the floor of his small apartment was 80 percent carpeted and 20 percent linoleum.
To explain my position further, I believe it helpful to examine the case law of the state of Oregon interpreting its MCC statutes. In Closet Maid, 763 So.2d at 389-91 (Benton, J., concurring and dissenting), it was pointed out that the Florida Legislature had modeled the provisions of its act after those in Oregon. In arguing that the majority's construction of the Florida provisions should comply with the interpretations given the parallel statutes by Oregon courts, Judge Benton reiterated the time-honored rule recognizing that when a Florida statute is patterned after that of another jurisdiction, Florida courts will apply a similar interpretation to the Florida statute. Id. at 390, n. 14.
In obedience to the above rule, I have undertaken an examination of pertinent Oregon cases, and it appears from my review that in order for a work-related activity to be considered the MCC of an injury or condition to which a personal element may have contributed, the evidence must reveal that such activity was the immediate, direct cause of the injury, and not a cause that may have simply contributed to the injury. InPortland Adventist Medical Center v. Buckallew, 861 P.2d 380 (Or. Ct. App. 1993), the issue before the court was whether the employee's diabetes-related neuropathy was simply a predisposition to, or was a cause of, his occupational disease, Charcot's joint, an arthritic condition in his ankles characterized by the destruction of joint surfaces. A referee found that the claimant's work activity (his on-the-job walking) was the MCC of his arthritic condition, and that his neuropathy created a predisposition to the condition, but did not cause it. Id. at 381. The Oregon Workers Compensation Board affirmed, and the employer appealed, contending before the Court of Appeals that the evidence showed that the claimant's neuropathy was, in fact, the cause of the disease.
In rejecting the argument, the court emphasized the medical testimony, which opined that while a combination of the claimant's personal and work-related trauma brought about the disabling condition, the claimant's idiopathic condition, neuropathy, only caused a loss of feeling and thereby made him more susceptible to injury. In other words, [t]he loss of feeling does not itself create trauma; it is trauma [the work activity] that causes the Charcot's joint. Id. at 382. The court explained the rationale why the employment should be deemed the MCC of the injury, rather than the idiopathic condition, which was only remotely connected to the injury:
"An employer is responsible for a disease that a claimant who has a particular susceptibility or predisposition develops due in major part to conditions at work. The predisposition to disease is not a bar to compensability, if work causes the disease.
In that sense,
the employer takes that employee as it finds her. If, in contrast, a claimant develops a disease in major part because of factors personal to her that are independent of any activities or exposures either off or on the job, the claim is not compensable, even if work contributed to some degree to causing the disease."
Id. (quoting Liberty N.W. Ins. Corp. v. Spurgeon, 820 P.2d 851 (Or. Ct. App. 1991)) (emphasis added).
The distinction between an immediate, direct cause that results in injury and a contributing cause is further illustrated by Georgia Pacific Corp. v. Warren, 796 P.2d 1246 (Or. Ct. App. 1990), in which compensation was sought for the claimant's carpal tunnel syndrome. In appealing the order of the Workers Compensation Board awarding compensation, the employer relied upon an opinion of an examining physician stating that the disease was the slowing of the median nerves in the claimant's wrists, which was entirely idiopathic and not affected by the employment. The court approved the Board's order, explaining that the treatment sought was not for the slowing of the nerves, but for the carpal tunnel syndrome, which first caused the condition to be symptomatic and disabling, and that the treatment did nothing to correct the underlying slowing of the median nerve. Id. at 1247. It further noted that the employer's physician admitted that the carpal tunnel syndrome was brought on by the claimant's work activity. Finding the Board's order supported by competent, substantial evidence, the court affirmed it.
In the case at bar, while claimant's idiopathic condition may have been a contributing factor in causing him to fall, just as the claimants preexisting conditions in Buckallew and Warren contributed to their compensable injuries, such personal element was not the MCC of his injuries, which the JCC explicitly found, based on the evidence, was the direct result of his collision with a hazard that clearly aggravated the extent of his injuries, a concrete walkway.
Four of five expert medical witnesses opined that the MCC of claimant's injuries was the fall and impact of his body on the concrete walkway. The fifth, the employer's expert, neurosurgeon John S. Boggs, while testifying that the MCC of claimant's injuries was the seizure he suffered, admitted that the trauma claimant experienced resulting from the collision of his head on the walkway was the cause of his head injury, and not the seizure itself.
The analysis of the Oregon Court of Appeals, in focusing on the immediate cause of the injury as a means of ascertaining the MCC of an employee's injuries, is consistent with that of the JCC below, as well as of the Florida Supreme Court in Cline, which primarily considered the claimant's fall onto a hard, concrete floor to be the cause of his injury, a skull fracture, resulting in his death, rather than what may have been the cause of the fall. Cline instructs that in circumstances in which the employment aggravates the risk or contributes to the injury, the emphasis should be placed on the immediate cause of the injury, rather than the cause of the accident; an approach I consider to be more consistent with the no-fault concept of workers compensation, instead of the fault-based system of negligence.
The hardness of the surface on which an employee may fall has long been considered an added hazard of employment. See Larson, 9.01[4][e] (quoting from the Scottish case of Wright Greig, Ltd. v. M. Kendry, 56 S.L.R. 39, 11 B.W.C.C. 402 (1918), wherein the court observed that the employee was required to work at a place which turned out to be a place of special danger, because but for the hard concrete floor the fatality would not or might not have occurred[.]).
In the case at bar, competent, substantial evidence clearly supports the judge's finding, based on the totality of the evidence, that claimant's injuries were a direct result of his impact with a concrete walkway, and that this impact was the MCC of his injuries. In reviewing questions pertaining to aggravations of prior weaknesses, the responsibility of an appellate court is as follows:
Whether the employment aggravated, accelerated, or combined with the internal weakness or disease to produce the disability is a question of fact, not law, and a finding of fact on this point by the commission based on any medical testimony . . . will not be disturbed on appeal.
Larson, 9.02[5] (emphasis added) (quoted with approval in Haas v. Seekell, 538 So.2d 1333, 1335-36 (Fla. 1st DCA 1989)). More recently, inChavarria v. Selugal Clothing, Inc., 840 So.2d 1071 (Fla. 1st DCA 2003) ( en banc), we ruled that the findings of a JCC in resolving conflicting medical opinions will be affirmed if they are supported by competent, substantial evidence, and it appears the JCC did not overlook or ignore contrary opinions in the record. As I have stated, the JCC did all that any appellate court could reasonably expect him to do. Because I am of the firm belief that the order is supported by competent, substantial evidence, and the findings clearly display the reasons for his determination, I would affirm.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.