Opinion
1D2021-1717
10-20-2023
Normandy Insurance Company, Appellant, v. Mohammed Bouayad and Value Car Rental, LLC, Appellees.
William H. Rogner of HR Law, P.A., Winter Park, for Appellant. Michael J. Winer of the Winer Law Group, Tampa; Michael A. Edwards, West Palm Beach; and Chuck Smith of C.W. Smith Law, P.A., Orlando, for Appellees. Mark A. Touby of Touby, Chait &Sicking, P.L., Coral Gables for Amicus Curiae Florida Workers' Advocates.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
Date of Accident: June 28, 2019.
On appeal from an order of the Office of the Judges of Compensation Claims. Neal P. Pitts, Judge.
William H. Rogner of HR Law, P.A., Winter Park, for Appellant.
Michael J. Winer of the Winer Law Group, Tampa; Michael A. Edwards, West Palm Beach; and Chuck Smith of C.W. Smith Law, P.A., Orlando, for Appellees.
Mark A. Touby of Touby, Chait &Sicking, P.L., Coral Gables for Amicus Curiae Florida Workers' Advocates.
ORDER ON MOTION FOR REHEARING EN BANC
A judge of this court requested a vote on Mohammed Bouayad's motion for rehearing en banc, in accordance with Florida Rule of Appellate Procedure 9.331(d). All judges in regular active service now having voted on the motion, that motion is DENIED.
ROWE, J., concurs with an opinion in which B.L. THOMAS, WINOKUR, NORDBY, and TANENBAUM, JJ., join.
TANENBAUM, J., concurs with an opinion in which B.L. THOMAS, J., joins, and ROWE, J., joins as to part II.
LONG, J., concurs with an opinion in which OSTERHAUS, C.J., and RAY, J., join.
M.K. THOMAS, J., dissents with an opinion in which LEWIS, ROBERTS, BILBREY, and KELSEY, JJ., join.
ROWE, J., concurring in the denial of rehearing en banc.
Rehearing en banc is never mandatory. Instead, the question of whether to order en banc rehearing is a matter left to the discretion of the district court of appeal. See Fla. R. App. P. 9.331(a) ("A majority of the participating judges of a district court of appeal may order that a proceeding pending before the court be determined en banc.") (emphasis supplied). The grounds for en banc review are limited. En banc rehearing may be authorized "solely on the grounds that the case or issue is of exceptional importance or that such consideration is necessary to maintain uniformity in the court's decisions." Fla. R. App. P. 9.331(d)(1). Every judge on this Court considered and voted on the motion for rehearing en banc. A majority chose not to exercise their discretion to order en banc rehearing.
As for exceptional importance, the Court declined to order en banc review under that ground. That does not mean that the Normandy decision is unimportant. Indeed, the panel majority certified a question of great public importance to the Florida Supreme Court, asking it to consider whether an injury caused by the act of a third-party tortfeasor can be compensable under the Workers' Compensation Law. After applying and distinguishing the supreme court's 1980 decision in Strother v. Morrison Cafeteria, 383 So.2d 623 (Fla. 1980), the majority certified the question in recognition of the tension between the holding in Strother and the Legislature's definition of occupational causation in the 1993 amendments to the Workers' Compensation Law. If review is sought in the Supreme Court and that Court agrees the Normandy decision is important enough to invoke its jurisdiction, it can exercise its discretion to review the decision. See Art. V, § 3(b)(4), Fla. Const. (providing that the Court "[m]ay review any decision of a district court of appeal that passes upon a question certified by it to be of great public importance").
As for maintaining decisional uniformity, this Court declined to determine this case en banc under that ground, too. En banc rehearing was properly denied because the Normandy decision does not depart from the plain language of the applicable statutes or this Court's decisions applying those statutes. Three decades ago, the Legislature made clear that compensability under the Workers' Compensation Law turns not just on whether the claimant was in the course and scope of work when the industrial accident causing injury occurred but also on whether the injury arose out of the work performed by the claimant. See Ch. 93-415, § 2, at 73, Laws of Fla.; id. § 112m at 215 (defining "arising out of"); § 440.09(1), Fla. Stat. (2018) (providing that compensability turns on whether an employee suffered "an accidental compensable injury . . . arising out of work performed in the course and scope of employment.").
Even then, it was not a novel concept that a claimant seeking compensation must make a showing both on course and scope and on occupational causation. Just last year, the Court repeated that a claimant must make both showings, explaining that this requirement has existed "for decades." See Silberberg v. Palm Beach Cnty. Sch. Bd., 335 So.3d 148, 154 (Fla. 1st DCA 2022) ("For decades the supreme court has been telling us that . . . an employee must 'show that the accident or injury happened not only in the course of [his] employment but arose out of it. There must have been a causal connection between the employment and the injury.'" (quoting Gen. Props. Co. v. Greening, 18 So.2d 908, 911 (Fla. 1944))). Stated simply and once again, the Workers' Compensation Law does not cover all workplace injuries; it covers only work-caused injuries.
The result is that sometimes workplace injuries-even catastrophic injuries like the ones suffered by Bouayad-will not be compensable under the Workers' Compensation Law. Even so, it is not our task to expand the reach of the Law and second guess the policy decisions of the Legislature. See Westphal v. City of St. Petersburg, 194 So.3d 311, 331-32 (Fla. 2016) (Canady, J., dissenting) ("We have long recognized that the Legislature should be afforded latitude in the structuring of remedies both outside the worker's compensation context . . . and within the workers compensation context.") (citations omitted).
Put differently, it is not within the power of the courts to make employers universal insurers of all injuries that occur at work, regardless of whether the injury arose out of the employment. Only the Legislature has that authority. The Legislature no doubt could have enacted a statute making compensable any injury suffered by an employee while the employee is on the clock and present at work-including injuries caused by the intentional acts of strangers to the workplace. But the Legislature did not adopt such a statute. Instead, the Legislature enacted a statutory framework with a limited reach-providing for compensability only when an employee's injury is caused by work. If compensability under the Workers' Compensation Law is to be expanded beyond work-caused injuries, that task is reserved for the Legislature, not the courts. See Thompson v Fla. Indus. Comm'n, 224 So.2d 286, 287 (Fla. 1969) (explaining that the remedy for any inadequacy in the Workers' Compensation Law "lies with the Legislature"); see also Matrix Emp. Leasing, Inc. v. Hadley, 78 So.3d 621, 626 (Fla. 1st DCA 2011) (en banc) (explaining that this Court lacks "the authority to rewrite the [workers' compensation] statutes").
TANENBAUM, J., concurring in the denial of rehearing en banc.
There are two intimations in the dissent to which I want to respond. First, there is no law and no supreme court holding- none-that requires a three-judge panel of a district court of appeal to follow a decision of a prior panel of the same court regarding a point of law. Second, there ultimately is no legal significance in this court's denial of the motion for rehearing en banc, which simply comes as part of a purely administrative process that allows this court collectively to supervise, in its discretion, the disposition work of its rotating lineup of constituted three-judge panels. Despite what the dissent suggests, the panel's decision in this case is consistent with what statutory law has commanded, and what the supreme court has directed, for decades. There is no reason for this court to reconsider the matter en banc.
I
Frankly speaking, the idea that three independent judicial officers constituting one of this court's panels are legally "bound"by a decision of a prior panel of equivalent judicial officers comes from . . . nowhere. Well, at least nowhere in the law. The so-called "prior panel precedent" (or "horizontal precedent") rule is a fallacy, a figment, a chimera. It has no basis in our state constitution or in any statute. No foundation can be found even in a rule. In fact, when a rule was proposed that would have mandated this approach, the supreme court rejected it-with a mention that such an approach might not comport with the constitution. See In re Rule 9.331, Determination of Causes by a Dist. Ct. of Appeal En Banc, Fla. Rules of App. Proc., 416 So.2d 1127, 1128 (Fla. 1982) ("Without addressing possible constitutional problems, we find that a strict rule of procedure would be unworkable and inappropriate under the circumstances.") (emphasis supplied)).
See, e.g., Wanless v. State, 271 So.3d 1219, 1223 (Fla. 1st DCA 2019) ("We are of course bound to follow our own decisions unless and until an intervening decision from the Florida Supreme Court, the United States Supreme Court, or this court sitting en banc compels otherwise."); Sims v. State, 260 So.3d 509, 514 (Fla. 1st DCA 2018) ("Each panel decision is binding on future panels, absent an intervening decision of a higher court or this court sitting en banc."); see also Fox v. Fox, 262 So.3d 789, 792 (Fla. 4th DCA 2018) ("A panel of our court has no authority to overrule or recede from our precedent on the same legal issue."); State v. Washington, 114 So.3d 182, 188-89 (Fla. 3d DCA 2012) ("This panel is not free to disregard, or recede from, that decision; only this Court, sitting en banc, may recede from an earlier opinion."); cf. Schofield v. Judd, 268 So.3d 890, 898-99 (Fla. 2d DCA 2019) (stating that "any subsequent panel decision issued from our court that conflicts with our court's prior holding" on a point of law "cannot be considered binding"); Wood v. Fraser, 677 So.2d 15, 18 (Fla. 2d DCA 1996) (mentioning the "long-standing policy of this court" to not recede from a prior panel decision, "even if it were inclined to do so, without first seeking en banc consideration from the full court pursuant to Florida Rule of Appellate Procedure 9.331").
My suspicion is that the concept was reflexively imported from federal appellate court practice, even though federal appellate courts face a procedural landscape that significantly differs from ours in Florida. Cf. 28 U.S.C. § 46 (establishing by statute three-judge appellate panels of a circuit court and the court's ability to consider appeals en banc); Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 400 (2010) ("But Congress, unlike New York, has ultimate authority over the Federal Rules of Civil Procedure; it can create exceptions to an individual rule as it sees fit-either by directly amending the rule or by enacting a separate statute overriding it in certain instances."); Hanna v. Plumer, 380 U.S. 460, 472 (1965) ("For the constitutional provision for a federal court system (augmented by the Necessary and Proper Clause) carries with it congressional power to make rules governing the practice and pleading in those courts, which in turn includes a power to regulate matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either.").
This is not to say that the supreme court expressly rejected the so-called rule, but it is clear that the supreme court was uncomfortable making it a procedural mandate.
The supreme court's hesitancy here may, in part, be attributable to the fact that this ostensible "rule" at the time was lacking not just an ancient origin but also any historicity at all. Indeed, the "rule" has a relatively recent vintage. Before 1965, such a rule, at all events, would not have been necessary because no district court had more than three judges anyway. See § 35.06, Fla. Stat. (1963) ("There shall be three judges of each district court of appeal."); § 35.06, Fla. Stat. (1965) ("The number of judges of each district court of appeal shall be as follows: ...."); ch. 65-294, § 1, at 1023, Laws of Fla. (setting the number of judges for several district courts to five). Every court basically sat "en banc" in every case. Once there were more than three judges on a district court, however, different panels of the same court were faced with how to treat decisions of prior panels (or of the whole court, when it had only three judges). A panel of this court wasted no time coming up with an answer, soon walking back another panel's decision that it considered to be incorrect. See Robertson v. State, 219 So.2d 456, 459 (Fla. 1st DCA 1969) ("Accordingly, we recede from that portion of our decision in DeMotte, supra, which holds that it is unnecessary to advance arguable reversible error during trial as a prerequisite to consideration of this class of cases wherein a convicted person claims frustration of his right to appeal." (emphasis supplied)).
That was not a one-off, either. See, e.g., Jones v. Jones, 330 So.2d 536, 539 (Fla. 1st DCA 1976) ("In view of the foregoing, we recede from the ruling in Hardy that separate amounts should be awarded for support of each minor child in all cases." (emphasis supplied)); Fauls v. Sheriff of Leon Cnty., 384 So.2d 238, 240 (Fla. 1st DCA 1980), approved, 394 So.2d 117 (Fla. 1981) ("We hereby recede from our opinion and decision in Simpson v. Woodham, supra, to the extent that any statement therein would require a contrary decision in this case." (emphasis supplied)).
The supreme court acknowledged this approach with approval. See Little v. State, 206 So.2d 9, 10 (Fla. 1968) ("If the two [panel] decisions conflicted, the only result would be that the instant decision, being later in point of time, would overrule Allison as the decisional law in the First District." (emphasis supplied)). The approach, in fact, still carries the supreme court's imprimatur. See R.J. Reynolds Tobacco Co. v. Marotta, 214 So.3d 590, 604 (Fla. 2017) ("Alternatively, to the extent that these [panel] cases do conflict, the difference could be attributed to a change in the Fourth District's position regarding implied conflict preemption in tobacco product liability cases." (citing Little v. State for the proposition quoted above)); State v. Walker, 593 So.2d 1049, 1050 (Fla. 1992) (citing Little and dispensing with jurisdiction as being improvidently granted after a subsequent panel of the First District Court of Appeal reached a decision that effectively overruled a prior panel decision, thereby obviating a "direct and express conflict" that had existed between the prior panel and the Fourth District Court of Appeal).
Where did this supposed rule of "binding" come from, then? Despite what appears to be clear and persistent precedent recognizing the authority of panels to recede from prior panel decisions, panels claiming to be "bound" by prior panel decisions tend to cite the supreme court's administrative pronouncement "that, to carry out the purpose behind our new appellate structure, a three-judge panel of a district court should not overrule or recede from a prior panel's ruling on an identical point of the law." In re Rule 9.331, 416 So.2d at 1128 (emphasis supplied). There are at least two problems with reliance on the quoted language.
Of course, the irony is that adherence to a rule that makes "prior panel precedent" binding requires one to overlook even older precedent (and more recent supreme court practice) to the contrary.
First, the quote is not a holding of the court, tied to a conclusive determination of an appellate dispute before it. That is, the supreme court's statement was not issued in connection with its conclusive determination of a legal dispute between two adverse parties-The court was not speaking in connection with its exercise of judicial power. Indeed, the supreme court does not have the constitutional authority to direct by rule a merits disposition of a lower court because, when issuing a rule opinion, the supreme court is operating in its administrative, not judicial, capacity. See Art. V, § 2(a), Fla. Const. In this context, there would be no lower tribunal court judgment on review-so no basis to issue a mandate having the force of a judgment. If the statement were a holding, then the quoted language from the court in Marotta and Walker (taking a subsequent panel opinion as legally operative within the district court's jurisdiction) would make no sense. Suffice it to say, the quote under discussion here was, at best, administrative guidance.
Second, the word I highlighted two paragraphs ago ("should") makes the guidance precatory, aspirational, and expectational. See also In re Rule 9.331, 416 So.2d at 1128 ("We would expect that, in most instances, a three-judge panel confronted with precedent with which it disagrees will suggest an en banc hearing." (emphasis supplied)). In the same opinion, the supreme court stated the following, which is practically a truism: "Under our appellate structural scheme, each three-judge panel of a district court of appeal should not consider itself an independent court unto itself, with no responsibility to the district court as a whole." Id.
Rather than hold or direct that a panel follow another panel's ruling, then, the court announced its expectation that a three-judge panel not "rule indiscriminately without regard to previous decisions of the same court." Id. (emphasis supplied). Even if the court had not said this, the idea makes jurisprudential sense. A three-judge panel should approach a legal question on which a prior panel has already spoken with the same circumspection, care, respect, and good judgment that the supreme court utilizes when that court considers a decision issued by a prior composition of its membership. The court described this modest approach as follows:
It is no small matter for one Court to conclude that a predecessor Court has clearly erred. The later Court must approach precedent presuming that the earlier Court faithfully and competently carried out its duty. A conclusion that the earlier Court erred must be based on a searching inquiry, conducted with minds open to the possibility of reasonable differences of opinion.State v. Poole, 297 So.3d 487, 506 (Fla. 2020).
As I address in more detail below, the state's appellate judicial power is vested in both the supreme court and the district courts of appeal. Three-judge panels, in turn, typically exercise this authority on behalf of their respective district courts. The constitution's only prerequisite regarding the exercise of that power by a panel is that it must be with the concurrence of two of the three judges. See Art. V, § 4(a), Fla. Const. There are no other limitations (other than, of course, the constitutional and statutory text that provide the rules of decision). This does not mean, though, that without a rule of "binding," individual panels will do what they want, and uncertainty will be the rule.
Functionally, of course, a panel of the district court (and the court as a whole) is subject to the supervision and control by the supreme court, which is superior over all other courts in our constitutional structure and possesses writ power to compel compliance with its decisions and directives. See Berger v. Leposky, 103 So.2d 628, 631 (Fla. 1958); cf. Beach Resort Hotel Corp. v. Wieder, 90 So.2d 52, 53 (Fla. 1956) ("When our opinion was filed and our mandate went down the Circuit Court had no right to ignore it. On the contrary that court had a duty, under the mandatory direction contained therein, to comply therewith."); State v. Parks, 128 So. 837, 838 (Fla. 1930) ("The duty of the circuit judge under the circumstances was merely a ministerial one to enter a correct decree in accordance with the opinion and decision of this court.").
In addition, as I discuss below, a majority of a district court's complement of participating judges may exercise administrative control over the dispositional work of a panel. As I mention, that is presumably what the supreme court had in mind when it adopted rule 9.331. See Hon. Albert Branson Maris, Hearing and Rehearing Cases in Banc, 14 F.R.D. 91, 96-97 (1954), cited in Chase Fed. Sav. &Loan Ass'n v. Schreiber, 479 So.2d 90, 93 (Fla. 1985) ("The principal utility of determinations by the courts of appeals in banc is to enable the court to maintain its integrity as an institution by making it possible for a majority of its judges always to control and thereby to secure uniformity and continuity in its decisions, while enabling the court at the same time to follow the efficient and time-saving procedure of having panels of three judges hear and decide the vast majority of cases as to which no division exists within the court." (emphasis supplied)).
This control, in a way, resembles the means available to the supreme court, but it is different in that the administrative authority of the whole court is internal, subject to discussions among the judges about how an appeal should be resolved. Cf. In re Fla. Rules of App. Proc., 374 So.2d 992, 993 (Fla. 1979) ("Presently the district courts hold ad hoc conferences to discuss problems of conflicts between panels and to determine whether a panel should recede from a prior written opinion of the court. This proposal will formalize that process and provide a method for securing the input of counsel to resolve cases worthy of en banc determination."). By contrast, one panel of judges at the district court obviously has no tools at its disposal to compel another panel of judges at the same court to do anything. No panel has writ power against or administrative control over another panel. The most effective tool at the disposal of a panel of judges to "compel" a subsequent panel to follow its rule of decision is this: Its collective ability to make its reasoning rational, clear, and true to the text of the law. In other words, if a panel wants another panel to follow the legal principles it has set out, its opinion should be legally and logically compelling.
This control also is different because the whole court may effectively allow-by refusing to hear an appeal en banc or by denying a motion for rehearing en banc-a panel's decision to go out on behalf of the court, even though the legal reasoning behind the decision conflicts with that of a prior panel. That subsequent decision, then, would hold the status as the prevailing rule of decision, binding on lower tribunals within the court's jurisdiction.
To be sure, a district-court panel should respect the work of a prior panel of the court's judges-constitutional officers of equal judicial dignity faithfully applying the law as they see it. Respect, though, is one thing; duty is another. Judges on the subsequent panel have the same duty to be faithful to the text of the law (i.e., the constitution and statutes). If the subsequent panel, in its collective judgment, determines that there is a clear, bona-fide conflict between the prior panel's decision and the legal text, the panel has both the authority and the duty to choose the law over the prior panel's decision. See State v. Gray, 654 So.2d 552, 554 (Fla. 1995) ("Yet stare decisis does not command blind allegiance to precedent. Perpetrating an error in legal thinking under the guise of stare decisis serves no one well and only undermines the integrity and credibility of the court." (internal quotation and citation omitted)).
This jurisprudential approach no doubt is what the supreme court expects of three-judge panels of the district courts. Treating the court's statements in In re Rule 9.331 in this light also comports with the supreme court's approach to conflicting panel decisions when it has been exercising its judicial power. Most importantly, the approach is consistent with the manner in which the constitution vests appellate judicial power in both the supreme court and the district courts.
Simply put, there is no constitutional or statutory basis for a district court panel to claim that it is "bound" by a prior panel decision. No rule establishes this principle. The supreme court has never held this to be the rule, and its judicial opinions expressly point in the opposite direction.
One three-judge panel is no more bound by a prior three-judge panel than the current supreme court is bound by a decision of a "predecessor court." In fact, the three-judge panel and the supreme court both are bound only by the jurisprudential considerations applied under the judicial policy of stare decisis. There is no doubt that the panel majority here hewed to those considerations.
II
As Judge Rowe notes, consideration of an appeal by a district court's full complement of judges is not required by the current iteration of rule 9.331, under any circumstances. The decision to consider-or reconsider-a matter en banc necessarily is a discretionary one. This court's ability to "go en banc," at best, is only a procedural mechanism, adopted by rule under the supreme court's administrative authority. See In re Fla. Rules of App. Proc., 374 So.2d at 993 ("The purpose of the proposed recommendation is to provide a formal procedural mechanism to permit the district courts to settle conflicts of decisions arising within the same district and to speak with one voice as a court on matters of exceptional importance." (emphasis supplied) (quoting report of Appellate Structure Commission regarding proposed en-banc rule)); cf. Art. V, § 2, Fla. Const. ("The supreme court shall adopt rules for the practice and procedure in all courts including . . . the administrative supervision of all courts ...." (emphasis supplied)).
Yes, early on in my judicial career, I questioned the constitutionality of the whole en-banc regime (which Judge MK Thomas notes) See State v Petagine, 290 So.3d 1106, 1108 (Fla 1st DCA 2020) (Tanenbaum, J, concurring) ("Believe it or not, we as a full court cannot override a panel decision simply because a majority of us disagree with it. I vote to deny the appellee's request for rehearing en banc because both the Florida Constitution and the applicable appellate rule tell me that we have no authority to grant it."). This administrative tool no doubt is here to stay, its constitutionality being accepted by the supreme court. Cf. Chase, 479 So.2d at 93 (claiming to have recognized the constitutionality of the en-banc process, albeit in a non-adjudicatory, administrative proceeding). Experience also has led me to a deeper understanding of the judicial power vested by our constitution. As an alternative to my analysis in Petagine, then, here I try (briefly) to make heads-or-tails of the rule-as adopted by the supreme court-within our constitutional structure, but starting with the premise that the process is valid.
The Florida Constitution vests the district courts of appeal with the State's judicial power of appellate review. See Art. V, § 1, Fla. Const. ("The judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts."); Art. V, § 4(b)(1)-(2), Fla. Const. (granting district courts the jurisdiction to "hear appeals . . . from final judgments or orders of trial courts" and "the power of direct review of administrative action, as prescribed by general law"); cf. Bush v. Schiavo, 885 So.2d 321, 330-31 (Fla. 2004) (explaining how "purely judicial acts" are not subject to review under the exercise of any sovereign power but judicial power); Marbury v. Madison, 5 U.S. 137, 175 (1803) ("It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause."). The supreme court's approach in adopting the current en-banc process-essentially, placing it under the administrative control of a majority vote of the district court's "participating" judges regarding a particular case-seemingly makes a critical presumption about a district court's exercise of this vested power.
For the process to make constitutional sense, it must be-in the view of the supreme court-that the judicial power always remains vested in the district court as an institution, but with the allowance that the district court may exercise that authority in an individual appeal through a majority vote of one of its three-judge panels. See Art. V, § 4(a), Fla. Const. ("Three judges shall consider each case and the concurrence of two shall be necessary to a decision."); cf. Chase, 479 So.2d at 93 ("In holding the en banc process constitutional, we construed the 'three judges shall consider each case' language of article V, section 4, as not restricting the district courts from hearing cases en banc."); Fla. R. Gen. Prac. &Jud. Admin. 2.210(a)(1) (providing for the "Exercise of Powers and Jurisdiction" through three-judge panels).
In the typical appeal (administratively assigned to a panel of three of a district court's judges), a majority vote of two of the judges on the panel will be a sufficient basis for the clerk to issue a mandate. That is the court's judgment disposing of the appeal and is the manifestation of the district court's exercise of its judicial power operating on the trial court's judgment. Put another way: While the constitution allows for panels to dispose of appeals filed with the district court-on its behalf and exercising the judicial power vested in the court-according to the supreme court, that power always remains in the possession of the whole court and under the administrative control of a majority of the court's complement of participating judges. See Chase, 479 So.2d at 93 (noting the Supreme Court's holding "that the en banc process was an expression of the [circuit] court's power rather than a party's right").
As it turns out, under the supreme court's rules, district-court panels (and even the individual judges) are subject to a myriad of administrative controls. For instance, the constituting of panels of judges of this court and the assignment of appeals to those panels for disposition are administratively directed by the court's conference of judges and their chief. See Fla. R. Gen. Prac. &Jud. Admin. 2.210(a)(2) (providing for internal governance through a chief judge, whose "administrative powers and duties" include the assignment of cases and judges and control of the docket); cf. First Dist. Ct. of Appeal I.O.P. 4.3 (providing for court conferences "to consider administrative matters and the adoption of policies"); id. 5.1, 5.1.3 (addressing the constituting of "merits panels" and assignment of appeals thereto). How a panel considers and decides a case, and how it issues its opinion and disposition, are procedurally directed by court rule. See, e.g., id. 5.1.3, 5.4.
If these premises are true, then it is not a huge leap to say that, under rule 9.331, the district court's judges, as a conference, also retain the discretionary authority to recall the administrative assignment of an appeal from one of its three-judge panels and retain the appeal for disposition by the whole court. Similarly, by rule, the district court's internal conference of judges also has at its disposal the ultimate procedural apparatus to maintain control over how the institution's judicial power is exercised by a panel: proscribing the clerk's issuance of the court's final judgment in an appeal. See Fla. R. Gen. Prac. & Jud. Admin. 2.210(1), (4) (providing that the clerk of court "shall hold office at the pleasure of the court[,] perform such duties as the court directs," and "issue such mandates or process as may be directed by the court"); First Dist. Ct. of Appeal I.O.P. 5.7 (requiring issuance of a mandate "[u]nless otherwise directed by the Court").
The supreme court, by adopting the en-banc rule, in essence has recognized (at least, in its administrative capacity) that the judicial work of each panel of three district judges remains under the aegis (and thereby supervision) of the district court's full complement of participating judges-that is, the whole court qua a singular judicial institution vested with sovereign constitutional power as to the lower courts within its territorial reach. Cf. Chase, 479 So.2d at 94 ("The en banc process provides a means for Florida's district courts to avoid the perception that each court consists of independent panels speaking with multiple voices with no apparent responsibility to the court as a whole. The process provides an important forum for each court to work as a unified collegial body to achieve the objectives of both finality and uniformity of the law within each court's jurisdiction." (emphasis supplied)). The supreme court, in turn, gives each district court broad discretion on how to exercise this supervision. Cf. id. ("We expressly granted the district courts broad discretionary authority to develop their own concept of decisional uniformity to be able to fully carry out these expressed purposes." (internal quotation omitted)).
When the en-banc rule is considered from the perspective just described, we can see that there is only a limited legal significance behind a district court's decision to deny a motion for rehearing en banc: A majority of the participating judges considered the panel's decision and rationale and concluded that whole-court intervention in the appeal was not warranted. A denial of the motion does not equate with court-wide approval of the disposition and rationale; it instead means the whole court does not disapprove of the panel-majority's handling of the appeal. In other words, a denial simply represents a decision by a majority of the court's participating judges to not stand in the way of the panel's exercise of the whole court's judicial power on its behalf. The clerk, as a result, may proceed to issue the mandate (read: the district court's judgment-the conclusive exercise of its vested judicial power in a case). See Berger, 103 So.2d at 631 ("The law is clear that the judgment of an appellate court in a case of that nature is a final judgment in the cause and compliance therewith by the lower court is a purely ministerial act...."); LP Graceville, LLC v. Odum Est. of Norton, 335 So.3d 764, 765 (Fla. 1st DCA 2022) ("An appellate court's mandate is the final judgment of the court ...."); see generally State v. Call, 18 So. 771, 773 (Fla. 1895); cf. Fla. R. App. P. 9.340(b). The panel's decision, in turn, is the prevailing statement of the law regarding the lower tribunals within the district court's jurisdiction-including administrative tribunals like the Office of the Judges of Compensation Claims.
Each voting judge in this matter has made an individualized determination as a constitutional officer-each tasked with applying his or her own independent, reasoned judgment as a member of the court. That determination absolutely is discretionary and is not subject to any outside review. This court never is required to hear or rehear a case en banc. Judge M.K. Thomas is correct that this court, having been given exclusive jurisdiction over workers' compensation appeals, bears a unique, additional responsibility that the other district courts do not. Members of the bar and judges of compensation claims ("JCCs") alike should rest assured that this court does not deny the motion here lightly. If there indeed were a sea-change in the application of the statutory requirement that "occupational causation" be proven by the claimant, this court likely would have exercised its administrative authority to intervene. Cf. Hon. Albert Branson Maris, Hearing and Rehearing Cases in Banc, 14 F.R.D. 91, 96-97 (1954), cited in Chase, 479 So.2d at 93 ("A decision of a controversial question made by a majority of all the judges of the court in banc obviously has much greater authority than a decision by two concurring judges of a panel of three which all the other five judges of the court might consider quite erroneous."). The court, however, has not done so.
JCCs, then, should take the majority opinion for what it is: The most recent statement by this court of the legal principle-as set out by statute-that they must apply in disputes over compensability. As Judge Rowe so ably summarizes in her opinion: The Workers' Compensation Law covers only work-caused injuries, not injuries merely occurring in the workplace. I voted against rehearing this matter en banc because the majority's stated rule of decision reflects an easy-to-apply principle that is consistent with the Legislature's enactment. In other words, there has been no change in legal principle here, just a correction of a deviation from it-a deviation that resulted in a final compensation order that stands contrary to what the law commands.
I disagree with Judge Long that the majority decision is limited "to the unique facts of the case." Sure, the majority addresses the insufficiency of the evidence, but it does so through the lens of a misapplication of the law. In setting aside the JCC's administrative order, the majority simply and clearly describes and applies a long-extant, still-prevailing, two-part statutory principle that controls not just in this case but in all disputes before JCCs regarding compensability. First, the accidental injury must occur while working-that is, within the course and scope of his employment-so the claimant must prove that he was at the workplace, doing something for work. Second, and perhaps more importantly, the injury, also-meaning (conjunctively, not alternatively) must be caused by the work the claimant was performing. It is this latter legal element that the JCC failed to apply. Sure, the work the claimant was performing in this case when he was shot was walking and carrying papers, but that just means the claimant proved that he was shot while he was working at his workplace (i.e., course-and-scope). The claimant's injury, though, was caused by an outside force, not the walking or carrying papers, and the claimant failed to prove anything different. Further to this point, in Judge M.K. Thomas's hypothetical, the injury suffered by the worker falling off the roof while working would be compensable. His work was being on the roof, and assuming he did not fall because some outside force pushed him off, the work of being on the roof will have caused the accidental injury-just as the claimant in Soya was injured by tripping while walking as part of her work. See Soya v. Health First, Inc., 337 So.3d 388 (Fla. 1st DCA 2022).
This court does not make law or pronounce changes in the law; it applies the law as written and corrects decisions of lower tribunals that run counter to what the law requires. The majority's opinion is instructive for JCCs precisely because it makes the law's correct application for future claims. No more, no less.
LONG, J., concurring in the denial of rehearing en banc.
I concur in the Court's decision to deny the motion for en banc rehearing. I write only to point out that the question presented on a motion for en banc rehearing is distinct from the underlying analysis on the case's merits. As a result, a judge might disagree with the panel's ultimate conclusion, yet also not support en banc rehearing. Where, as here, the case requires appellate review of factual findings for competent, substantial evidence, see Sanchez v. YRC, Inc., 304 So.3d 358, 359 (Fla. 1st DCA 2020), there can be reasonable disagreement about whether particular evidence meets that threshold.
The decision to take a case en banc involves a different legal question. "En banc hearings and rehearings shall not be ordered unless the case or issue is of exceptional importance or unless necessary to maintain uniformity in the court's decisions." Fla. R. App. P. 9.331. Not every disagreement over competent, substantial evidence will be of exceptional importance or involve decisional uniformity. Most, in fact, will not. And so a judge could reasonably conclude that the JCC's findings were supported by competent, substantial evidence and sufficient for affirmance, but still decline en banc rehearing. This is particularly true where the panel decision generally applies the correct law and limits the holding to the unique facts of the case.
M.K. THOMAS, J., dissenting from the denial of rehearing en banc.
Compensability of injuries sustained by employee/victims of violent crime at work is a matter of great public importance. Further, when the majority of a single panel of judges deviates from statutory text and prior precedent of the court, thereby creating a new rule of law, full court review is not discretionary. See Fla. R. App. P. 9.331(a). "Compensation shall be payable irrespective of fault as a cause for the injury ...." § 440.10(2), Fla. Stat. (2019). Workers' compensation covers accidental injuries, regardless of who is to blame. See Aguilera v. Inservices, Inc., 905 So.2d 84, 89 (Fla. 2005) ("Workers' compensation laws provide employees limited medical and wage loss benefits, without regard to fault, for losses resulting from accidental workplace injuries . . . ."). The purpose of Chapter 440, Florida Statutes, is to ensure the quick and efficient delivery of benefits to employees injured at work and to maintain the delicate balance struck by the Legislature in mandating that employers carry workers' compensation insurance coverage in exchange for certain immunities from civil liability. See §§ 440.10, 440.11, 440.015, Fla. Stat. We have jeopardized this delicate balance.
Section 440.02, Florida Statutes, defines key terms to be "used in this chapter, unless the context clearly requires otherwise." "'Arising out of' pertains to occupational causation." See §§ 440.02(4), Fla. Stat. A literal application of section 440.02(4) may render the concepts meaningless, as exemplified in this case. Appellee makes this case strongly in the motion for en banc rehearing, arguing that "Chapter 440's recognition that-by definition-accidents are 'unusual' and 'unexpected' explains why the act does not attempt to fastidiously categorize the many (perhaps infinite and unpredictable) ways an accidental injury might happen because of one's work." The view that occupational causation is limited to the physical mechanics of an injury (here, bullets) renders unworkable the intent of the Workers' Compensation Law and will preclude coverage for most accidents. Only in the most anomalous circumstance would an employee's work duties or activities be the mechanical cause of an injury. The majority's analysis would preclude compensability for a roofer who is injured from falling off a roof, if he is neither hammering nor doing any other roofing-related work upon the inevitable impact. And a teacher who is shot while merely walking to the classroom door before the first bell rings would not be entitled to benefits. Compensability analysis relates to the "accident" as a whole event and not that of physiology. As Appellee identified in the motion for rehearing en banc, the majority has redefined "arising out of" from a test of theoretical work-connectedness to one of "Newtonian mechanics."
We have missed the forest for the trees, procedurally and substantively.
Rule 9.331 Requires En Banc Review as the Case Presents a Matter of Great Public Importance.
Rule 9.331 does not define exceptional importance. The Florida Supreme Court allows the district courts to interpret and apply the rule. See Chase Fed. Sav. &Loan Ass'n v. Schreiber, 479 So.2d 90, 91 (Fla. 1985) (holding that in exercising their en banc power, district courts are not limited to the case-law standard adopted by the supreme court but "are free to develop their own concepts of decisional uniformity"). Judge Rowe catalogued the district courts' treatment of decisional uniformity in In re Doe 13-A, 136 So.3d 748, 753 (Fla. 1st DCA 2014) (Rowe, J., dissenting) (noting that "only a handful of Florida decisions expressly address the factors which [sic] may render a case 'exceptionally important'").
The Fifth District has historically regarded cases as exceptionally important "when the original panel decision conflicted with a rule of law announced by the supreme court or another district court, when the case was important to the jurisprudence of the State as a judicial precedent, or when the decision impacted a large share of the community." Id. at 753 (citing Ortiz v. State, 24 So.3d 596, 648 (Fla. 5th DCA 2009)). The Third District has outlined the following factors guiding the decision to grant en banc review:
(1) the outcome of the case (or its notoriety) is of greater moment or impact within the community rather than its effect upon the law of the state, and either (a) the case is important beyond the effect it will have on the litigants or (b) will affect the ability of other potential litigants to seek their own remedies, or (2) the outcome of the case
may reasonably and negatively influence the public's perception of the judiciary's ability to render meaningful justice.Id. at 753-54 (emphasis added) (quoting Univ. of Miami v. Wilson, 948 So.2d 774, 791 (Fla. 3d DCA 2006)). This Court has certainly granted en banc review based on exceptional importance, but it has not expressly articulated the standards for determining whether a case is exceptionally important. See id.
In fact, several judges of this Court have recently expressed their doubt that district courts of appeal have the constitutional authority to hear and decide cases en banc in any instance. In State v. Petagine, 290 So.3d 1106, 1109 (Fla. 1st DCA 2020), my colleague, Judge Tanenbaum, highlighted his constitutional concerns in a thoughtful concurring opinion. Another, Judge Long, emphasized the purpose of en banc noting, "This was the first and primary purpose of the en banc rule instituted as a companion to the structural changes in constitutional appellate jurisdiction in the state-to provide a tool for the courts of appeal to address intradistrict conflicts." R.C. v. Dep't of Agric. & Consumer Serv., Div. of Licensing, 323 So.3d 366, 367 (Fla. 1st DCA 2021) (Long, J., concurring opinion).
But this Court shoulders a uniquely heavier responsibility than our sister district courts when contemplating en banc review. We have been entrusted with exclusive statewide jurisdiction for all workers' compensation appeals. See § 440.271, Fla. Stat. As such, our decisions in workers' compensation matters take on greater significance and inherently have widespread impact. Unless the supreme court accepts jurisdiction in a workers' compensation matter, a ruling of a single three-judge panel is binding on the entire state. See Westphal v. City of St. Petersburg, 122 So.3d 440, 466 (Fla. 1st DCA 2013) (Wetherell, J., dissenting) (noting the importance of stare decisis and the legitimacy it provides to the courts), overruled on other grounds. In other areas of law, inter-district conflict provides an avenue for prompt review by our supreme court.
As a general background, the Legislature passed the Workmen's Compensation Act in 1935 "as administrative legislation to be simple, expeditious, and inexpensive." Lee Eng'g & Const. Co. v. Fellows, 209 So.2d 454, 456 (Fla. 1968). To this end, the Legislature also created the Florida Industrial Commission (FIC) to serve as an appellate tribunal for all workers' compensation cases. Section 440.27, Florida Statutes (1947), conferred appellate jurisdiction on the circuits courts to review FIC decisions. In 1969, the Legislature abolished the FIC and created the Industrial Relations Commission (IRC). Then, in 1979, the IRC was abolished, and appellate review of workers' compensation cases was made exclusive to the First District Court of Appeal.
The governing legal principles of workers' compensation are as foundational as they are clear. As the Florida Supreme Court explained, "the workmen's compensation law was intended to provide a direct, informal and inexpensive method of relieving society of the burden of caring for injured workmen and to place the responsibility on the industry served." Port Everglades Terminal Co. v. Canty, 120 So.2d 596, 602 (Fla. 1960); see also Dennis v. Brown, 93 So.2d 584, 588 (Fla. 1957); McCoy v. Fla. Power &Light Co., 87 So.2d 809, 810 (Fla. 1956) (holding the law was designed "to prevent those who depend on the workers' wages from becoming charges on the community. The law operates to place the burden for such misfortunes upon industry.").
The majority subverted the express legislative intent of section 440.11, Florida Statutes, to make workers compensation the exclusive remedy for workplace injuries:
Exclusiveness of liability- (1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof . . . entitled to recover damages from such employer at law or in admiralty on account of such injury or death ....
The majority's retooled compensability standard exposes employers to expanded tort liability for accidents at work. The aftermath cannot be understated. Carriers will deny compensability of accidents at an immediate increased rate. Conflicts of interest will arise among employers, their insurance carriers, and respective legal counsel. Employers will and should insist on participation in any and all denials of workers' compensation coverage following a reported work accident due to the impact on their immunity protections and expanding liability exposure. When disagreement arises between the employers and their workers' compensation insurance carriers regarding a denial of benefits, employers will pursue bad faith handling claims. Employers will join workers' compensation litigation in a different role than ever before-standing on the side of the injured worker and contesting the denial of the accident/injuries by the insurance carrier. Injured workers denied workers' compensation coverage, especially as victims of crime, will pursue civil litigation. As Appellee points out, "this is the precise mayhem" that this Court in Vigliotti v. K-mart Corp., 680 So.2d 466, 467 (Fla. 1st DCA 1996) sought to avoid.
Whether an employer's general liability policy provides coverage for the civil litigation is questionable due to commonplace intentional tort exclusions.
As a result of the majority opinion, most victims of violent crime at work will be denied workers' compensation benefits. Civil suits will significantly increase, and specialized lines of insurance covering crime will be necessary to address expanded liability exposure for employers. The employer and employee will ultimately both bear the economic brunt of these additional costs of doing business. Regardless of what criteria are applied for determining the appropriateness of en banc review, and recognizing that subjective approaches are in play, the impact of workplace crime as a legitimate basis for finding exceptional importance.
Crime insurance currently exists in Florida, but most policies only cover property and fund theft. Newer lines of insurance include active shooter liability insurance, among others. See "Should You Invest in Active Shooter Liability Insurance?," McGowan Program Administrators (Jan. 11, 2023), https://mcgowanprograms.com/blog/should-you-invest--in-active-shooter-liability-insurance/.
Florida's crime statistics recorded by Florida Department of Law Enforcement reveal that in 2020 and 2021, the total violent crimes exceeded 80,000 each year. See https://www.fdle.state.fl.us/CJAB/UCR/UCR/2021/Annual/UCR-Crime-in-Florida-Abstract-Statewide-2021A.aspx.
En Banc Review Required as the Majority Opinion Recedes from Binding Precedent
Alternatively, en banc review was required here because the majority opinion recedes from clear precedent. Consistent with other district courts of appeal, this Court has held that "[e]ach panel decision is binding on future panels, absent an intervening decision of a higher court or this court sitting en banc." Sims v. State, 260 So.3d 509, 514 (Fla. 1st DCA 2018) (citing Taylor Eng'g, Inc. v. Dickerson Fla., Inc., 221 So.3d 719, 723 n.3 (Fla. 1st DCA 2017)); see also Nat'l Med. Imaging, LLC v. Lyon Fin. Servs., Inc., 347 So.3d 63, 64 (Fla. 3d DCA 2020) ("Were we writing on a clean slate, we would grant the motion to stay pursuant to the automatic stay provision set forth in 11 U.S.C § 362(a)(1). Nonetheless, the motion to stay is denied as we are bound by this Court's prior decision ...."); Fox v. Fox, 262 So.3d 789, 792 (Fla. 4th DCA 2018) ("A panel of our court has no authority to overrule or recede from our precedent on the same legal issue."). There is no discretion. A single panel of judges cannot independently move the goalposts.
Judge Kelsey's dissent to the majority opinion details the departures from long-standing precedent. I incorporate the legal rationale of her dissent and add the following points.
Because the Employer/Servicing Agent (E/SA) stipulated that Bouayad's shooting occurred in the course and scope of his employment, the majority limited the legal issue to whether the event "arose out of" the employment, with the E/SA arguing that the attack was personal in nature and that Bouayad failed to prove that the attack was work-related. Yet, Bouayad was walking outside between work locations, in a poorly lit area, late at night, when he was shot seven times. His shooter was not identified nor caught, and thus, he had no path to determine, much less prove, motive. In the end, the majority's basis for reversal of the judge of compensation claims' (JCC's) award of workers' compensation benefits to Bouayad was an unprecedented separation of "course and scope" and "arising out of" as mutually exclusive concepts.
The majority applied "arising out of" as a pure focus on the mechanics of the injury, disregarding long-standing precedent that the analysis is much broader-encompassing work-related risk. This mechanical or physiological approach is clearly illustrated in the majority's statement: "So it was not enough that Bouayad established that he was at work and shot while walking between the premises of his employer .... Bouayad had to show that he was shot as a direct result of the walking." (Emphasis added.) As noted in Judge Kelsey's dissent and further below, until now injuries or death suffered under the same facts were compensable as a matter of law.
It is undisputed that Bouayad was shot while at work performing his job duties. In denying compensability, the majority concluded that "[a]t most, the work he performed for Value placed Bouayad in the wrong place at the wrong time." But Bouayad was at that place, at that time because his employment duties required him to be. It was not happenstance that he was at a hotel, walking paperwork from an outside office after midnight. There was no allegation by the E/SA that he had deviated from employment for a personal reason or was engaged in horseplay or any other exceptions the Legislature carved out in section 440.092, Florida Statutes.
Sentry Insurance Company v. Hamlin, 69 So.3d 1065, 1071 (Fla. 1st DCA 2011), was cited in support of the majority's reversal with a one-line rationale: "Mere presence at the workplace is never enough, standing alone, to meet the 'arising out of' prong of the coverage formula." However, the majority's declaration is dicta at best and must be placed in its proper context. The quote is pulled from the Hamlin panel's discussion of course and scope. The sentence immediately preceding it serves to clarify its broader meaning: "Accordingly, regardless of whether Claimant was injured on the premises during work hours, a necessary inquiry remains whether Claimant's accident arose out of a risk incidental to work-whether a work risk somehow caused or contributed to the injury." Id. at 1072.
The crux of Hamlin, after identifying categories of risk, is that whether risks are personal or work-related dictates whether "arising out of" is met. Hamlin established that all risks causing injury to a claimant can be brought within three categories: "risks distinctly associated with the employment, risks personal to the claimant, and 'neutral' risks-that is, risks having no particular employment or personal character." Id. at 1069-70 (citing Griffith v. Budget Rent-A-Car Sys., 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 the third category, neutral risks, where debate ensues. Id. This Court explained that "the phrase 'arising out of work performed' requires that the risks that caused Claimant's accident and injuries must be work-related." Id. at 1070. "The risk cannot be personal to Claimant or 'imported' to the workplace by the Claimant." Id. In the instant case, the JCC determined (in his appropriate role as the factfinder) that, as a matter of fact, the harm Bouayad suffered was not caused by either a personal risk or a neutral risk, but instead was caused, more likely than not, by a work-related risk. The majority opinion cannot be reconciled.
The majority's certified question begins with, "Notwithstanding Strother v. Morrison Cafeteria, 383 So.2d 623 (Fla. 1980) ...." I acknowledge and appreciate that certifying questions signifies a collegial effort to address the concerns of many. Nevertheless, a close examination of Strother reinforces that its reasoning applies here and binds us. As in every case, especially in the workers' compensation arena, the disposition in Strother is tethered to the specific facts and legal arguments raised. The issue presented to our supreme court in Strother was "whether Strother sustained a compensable accident when she was assaulted outside the time and space limits of her employment." Id. at 623 (emphasis added). On the evening of the incident, Strother left work and drove home, where she was assaulted and her purse was taken by men she had seen in the cafeteria. Motive was not an issue as the assailant(s) asked for the money from her work, believing she carried a bank deposit. Id. at 624. While Strother certainly announced that injuries suffered as a result of being a victim of a violent crime are compensable, it is confusing why the majority here interjected it in the certified question given it is factually distinguishable and the motive of the Strother assailants was proven. Id. at 626. Rather, Strother is really about compensability of accidents occurring away from the job site, but which are still connected or related to some risk of the employment. Although recognized in the certified question, the majority deviates from Strother in its disregard for risk inherent in the workplace. Strother confirmed that risk may render an accident as compensable even when occurring away from the job site and when the employee is off the clock, as long as that risk is work related. The majority's ask of the supreme court to circumvent Strother fails to address the real problem that we should have addressed en banc: deviation from our own precedent.
With this in mind, we turn to this Court's decision in Santizo-Perez v. Genaro's Corporation, 138 So.3d 1148 (Fla. 1st DCA 2014). The claimant was a manager for Kings Food and Meat Bazaar and was outside gathering carts from the parking lot. As he worked, a car hit him and sped away, causing his death. Id. at 1148-49. The assailant was caught (unfortunately Bouayad's assailant was not), and the motive was revealed. Per the assailant, he hit the claimant for sexually harassing the assailant's girlfriend at work. Id. at 1149. Because Santizo-Perez was unquestionably at work, the issue was whether his injuries arose out of the employment. Id. at 1149-50. This Court held that "[t]he inquiry is not as to fault. Rather, it is merely 'of marking out boundaries.'" Id. at 1150. The opinion further explained that "[i]n general terms, when a work-related risk brings about injury, the injury is compensable vis-avis those that are brought about by risks personal in nature, which are not." Id. Despite the assailant's known motive to be personal in nature, at least in part, this Court conducted a risk analysis. There was no evaluation of the mechanism of injury (cause of injury was striking of human body by an automobile and act of walking when struck did not cause the accident). The risk identified that rendered the accident compensable was that the claimant was collecting shopping carts at night and that doing so then exposed him to the attack. Santizo-Perez cannot be reconciled with the reversal of compensability in Bouayad's case and the failure to evaluate that the work created the risk by placing him at the location and the conditions under which he was shot.
In Lovin Mood, Incorporated v. Bush, 687 So.2d 61, 62 (Fla. 1st DCA 1997), an employee was attacked and raped while at work. This Court held that the employer was entitled to the immunity provided under workers' compensation law (and the employee was entitled to the benefits provided under that law) because the "facts establish[ed] the necessary causal connection between Bush's injuries and her employment." Id. The causation review considered that on the night of the attack the female employee was alone at a mall in an isolated area. A customer lured her to the back of the store and assaulted her in an office. Id. "We held that these undisputed facts establish the necessary causal connection between Bush's injuries and her employment." Id. Unlike the majority's analysis in the instant case, in Lovin Mood there was no analysis of the mechanics of the employee's injuries or the assailant's fists and appendages. There was no discussion of whether her assault and rape "arose out of" the mechanical act of "walking."
A similar case is Jenkins v. Wilson, 397 So.2d 773 (Fla. 1st DCA 1981). In Jenkins, the claimant was attacked and abducted from her employer's parking lot as she was leaving work and was subsequently raped. Id. at 774. This Court affirmed the finding of compensability, noting that the claimant's "employment created a hazard from which her injury arose. She stayed late at work on the afternoon in question and, as a consequence, was alone in the parking lot at that later hour." Id. at 775. That finding of compensability was unremarkable, but the significant part of Jenkins is that this Court expressly rejected precisely the kind of causation analysis that the majority here applied. The employer in Jenkins argued that the assault and rape were not compensable, relying on a case from Oklahoma. See Walk v. S.C. Orbach Co., 393 P.2d 847 (Okla. 1964). In Walk, the claimant was assaulted and robbed as she walked across a parking lot where employees were required to park. Id. at 849. The Oklahoma court denied her claim for workers' compensation benefits because she was not injured by accident "arising out of" employment as there was no evidence of increased risk or that the assault "was motivated by something related to the employment." Id. at 851. This Court rejected the Walk rationale, which is almost identical to the majority's analysis of "arising out of" here, to deny Bouayad benefits. In Jenkins, this Court affirmed the award of worker's compensation benefits to Jenkins finding risk was inherent in her being alone and having to walk outside. 397 So.2d at 775.
These cases establish clear precedent that the evaluation of compensability in the context of "arising out of" requires consideration of work-related risk, not just the pure physiology of the cause of the injury.
Regarding compensability and major contributing cause (MCC), the majority placed the initial burden of work connectedness on Bouayad because the "cause" of the accident/injuries was a bullet or that he was "shot" and gunfire is not a customary duty or occurrence on the job as a rental car manager. Then, the majority opined that the MCC standard only applied if Bouayad proved work-connectedness. This application is incorrect per prior precedent and the very text of the statute.
When an accident occurs at work while an employee is performing his or her duties, the accident is regarded as compensable unless the employer can prove there are non-work-related factors that caused the accident. See Alvero v. Watermark Ret. Cmtys., 352 So.3d 356 (Fla. 1st DCA 2022); Soya v. Health First, Inc., 337 So.3d 388 (Fla. 1st DCA 2022); Silberberg v. Palm Beach Cnty. Sch. Bd., 335 So.3d 148 (Fla. 1st DCA 2022); Ross v. Charlotte Cnty. Pub. Schs., 100 So.3d 781 (Fla. 1st DCA 2012); Walker v. Broadview Assisted Living, 95 So.3d 942 (Fla. 1st DCA 2012); Caputo v. ABC Fine Wine &Spirits, 93 So.3d 1097 (Fla. 1st DCA 2012. The E/SA's argument in Bouayad, which the majority here accepted (and which this Court previously rejected in Jenkins) was "[t]hat the applicable legal standard is whether the work creates a risk not existent in the claimant's non-employment life." While non-employment risk is not irrelevant, the majority has misapplied it to the burdens of proof for compensability. If the accident occurs within the course and scope of the employment while the employee is performing his or her duties, the accident is regarded as compensable, unless the employer can show evidence of non-work-related factors. If the employer does introduce such evidence, the burden shifts to the injured worker to prove work was "the" MCC of the accident. See § 440.09(1), Fla. Stat. The injured worker has never before had to bear the burden of disproving a negative-that he/she has never been attacked, raped or shot at home, therefore, there is a work-connectedness because he/she was victimized at work. The injured worker does not have the initial burden to show their actions (walking, climbing, lifting) are particular to job duties and the physiological mechanism of an injury is inherent in the work.
Both this Court and the Florida Supreme Court have consistently and unambiguously held that when the employer/carrier asserts that an injury is the result of a personal risk, such as an idiopathic preexisting condition or an attack that is personal in nature, the employer/carrier carries the burden of proving the existence of such a condition. See Zundell v. Dade Cnty. Sch. Bd., 636 So.2d 8, 12 (Fla. 1994) ("Once evidence is produced showing the absence of a preexisting condition, the burden then shifts to the employer to demonstrate the existence of a preexisting condition."); Hacker v. St. Petersburg Kennel Club, 396 So.2d 161, 162-63 (Fla. 1981) (holding that the general rule that a claimant must prove a causal connection does not apply where the injury occurs on the job and evidence of cause is non-existent); Bryant v. David Lawrence Mental Health Ctr., 672 So.2d 629, 631 (Fla. 1st DCA 1996) ("We hold that where an accident occurs while an employee is at his place of employment during working hours under circumstances such that no evidence of cause is available, the burden shifts to the employer to show idiopathic cause if the claim for compensation is to be denied.").
The E/SA here defensively injected the issue of a non-work-related factor-the alleged personal risk of Bouayad's dispute with Aponte-which is no different than asserting an idiopathic or preexisting condition. This defense triggered the JCC's role as finder of fact, with the burden of proof on the E/SA. The JCC rejected the E/SA's allegation that the personal risk of Bouayad's son's confrontation "caused" the injury, finding that there were no personal risks proven that could be imputed to Bouayad. Competent, substantial record evidence supported the JCC's fact- based finding: two witnesses testified that the video of the shooter confirmed that the assailant was not Aponte, and police never made an arrest or found a connection to this hypothesis by the E/SA. The assailant was not caught, so no motive was established. Because the E/SA failed to prove its defense, and in light of the undisputed evidence that Bouayad was at work performing his work duties when he was shot, his accident/injuries were regarded as compensable. The JCC's determination that the E/SA failed to prove its defense was supported by competent, substantial evidence (CSE). Thus, the accident was compensable as a matter of law.
The majority, in conflict with long-standing precedent, has upset the JCC's critical factfinding role in compensability determination. Before the majority opinion, if an employee was injured at work while performing his/her job duties, the accident/injuries were regarded as compensable as a matter of law. However, if the employer/carrier asserted nonwork-related causative factor(s), it carried the burden to submit evidence to prove them. The JCC in his/her role as factfinder determined, at hearing, whether the employer/carrier satisfied that burden of proof. That decision would be reviewed for CSE, if appealed. If the JCC in a fact-finding role found that the employer/carrier failed in its burden (thus no proven nonwork-related factors to consider), the accident was compensable as a matter of a law. However, if the JCC determined the employer/carrier satisfied their burden of proving other nonwork-related factors, the burden of proof shifted to the injured worker to prove that work was "the" MCC of the accident. Again, in a factfinding role, the JCC next determined whether the injured worker satisfied MCC to secure compensability of the accident/injuries.
Here, because the JCC in his role as the factfinder determined that the E/SA failed to prove (not hypothesize) that Bouayad's shooting was personal in nature, and therefore no non-work factors existed to consider, the compensability was established as a matter of law. Instead, the majority re-interpreted "arising out of" to place the initial and immediate burden on the injured worker to prove work relatedness, even in the absence of any evidence of non-work causative factors and even though Bouayad was on the job performing his work when injured. Respecting precedent, the majority's role was limited to whether CSE supported the JCC's determination that the E/SA failed to prove the existence of a nonwork-related cause of Bouayad's shooting. If the majority's answer was "yes" (therefore no non-work factors were proven), their work was done because the accident was compensability as a matter of law. If the answer was "no" (CSE did not support the JCC's determination and the E/SA had proven a non-work factor), then the majority's work would not be complete because MCC would then have been triggered. The remaining decision would have been whether remand to the JCC was necessary.
The 1993 amendments to Chapter 440 did nothing to alter precedent on compensability determination. Specifically, the addition of MCC to the "arising out of" definition in section 440.02(4) is a standard that is only triggered if the employer satisfies its burden of showing non-work-related factors exist that caused the accident. It does not change the statutory or precedential foundation that if the claimant was on the job performing work duties when the accident occurs, the accident is presumed compensable as a matter of law.
The majority cites Teco Energy, Incorporated v. Williams, 234 So.3d 816, 821 (Fla. 1st DCA 2017), for the principle that MCC is not triggered in the absence of competing causes. I agree. However, Teco does not stand for the proposition for which the majority cites it and does not apply to Bouayad's accident. In Teco, the employer/carrier initially accepted compensability of the claimant's knee injuries but later contested the ongoing treatment. Id. at 821-22. The Teco opinion, which I authored, established that because the claimant's knee condition was accepted as compensable, the claimant did not have the burden of proving MCC of the ongoing treatment, until and unless the employer introduced evidence of other non-work-related factors (e.g., a preexisting degenerative condition) which caused the need for the ongoing care. The employer was improperly denied the ability to introduce evidence of the other non-work factors that would have shifted the burden of proof to the claimant to show the work accident was "the" MCC of the ongoing disputed care. The takeaway is that MCC is a standard that is not inherent in the compensability determination. It only applies when and if the employer satisfies its burden of proving a nonwork related factor caused the accident. When the employee is at work performing his duties when he is injured, the accident is regarded as compensable as a matter of law. The employee has no additional burden to prove work-relatedness unless and until the employer/carrier carries its burden to prove other non-work competing causes-the point at which MCC is triggered. See Silberberg, 335 So.3d 148; Soya, 337 So.3d 388; Alvero, 352 So.3d 356; Ross, 100 So.3d 781; Caputo, 93 So.3d 1097; Walker, 95 So.3d 942.
In Walker, this Court reiterated that the MCC aspect of "arising out of" requires, as pre-requisite to application, proof of the existence of competing causes. We held that because there were no competing causes of the accident and injury, the claimant's work activity was de facto the MCC. Id. at 943; accord Ross, 100 So.3d at 782 ("[W]here an unexplained fall happens while Claimant is 'actively engaged' in the duties of employment, and where there is no other established basis for the fall, the causal relationship between the employment and the accident is met."). We acknowledged that where a pre-existing condition is involved it is necessary for claimants "to establish that 'the employment itself created the hazard of the risk.'" Walker, 95 So.3d at 943 (quoting Hernando Cnty. v. Dokoupil, 667 So.2d 275, 276 (Fla. 1st DCA 1995)).
This Court again reiterated this principle just last year. In Soya, we held that "[w]here an accident's cause is unknown, it is error to deny compensability on grounds that the accident 'could have happened elsewhere,'" because doing so is contrary to section 440.10(2), Florida Statutes, and contrary to Caputo and Walker. 337 So.3d at 389 (quoting Ross, 100 So.3d at 782). We said it again in Alvero as follows:
In denying compensation to Claimant, the JCC did not have the benefit of this Court's recent opinion in Soya v. Health First, Inc., 337 So.3d 388 (Fla. 1st DCA 2022). There, we acknowledged the continued viability of Caputo and other workplace fall cases. Soya, 337 So.3d at 389-90. We clarified that the "increased hazard analysis under Valcourt-Williams applies only where there is a contributing cause outside of employment," in that case a dog in Valcourt-Williams's home. Soya, 337 So.3d at 389.
We have also recently noted that in absence of any preexisting or idiopathic condition, "the mundane exertion of walking to get around at work is enough to establish a work cause because the 'any exertion' test does not look at the quality or quantity of the activity. 'Any exertion' means any effort in furtherance of work will do." Silberberg v. Palm Beach Cnty. Sch. Bd., 335 So.3d 148, 158 (Fla. 1st DCA 2022).352 So.3d at 356; see also Santiago v. SBA Commc'n/Travelers Ins., 335 So.3d 163 (Fla. 1st DCA 2022).
A brief return to Vigliotti v. K-mart Corp., is warranted. The majority here determined that "arising out of" and "course and scope of employment" must be assessed independently as of the 1993 statutory change defining "arising out of." However, the majority cites no cases to support this conclusion. To the contrary, in Vigliotti, a post-1993 case, this Court reaffirmed the preamendment language from Grenon that said arising out of and course and scope should be read together:
The statutory phrases "arising out of" and "in the course of" employment are used conjunctively. 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. In practice, both are part of a single test, such that the strength of one element may cure the weakness of the other. To 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. Grenon v. City of Palm Harbor Fire Dist., 634 So.2d 697, 699 (Fla. 1st DCA), review denied, 649 So.2d 233 (Fla. 1994). Thus, the new statutory definition for "arising out of" appears to incorporate these concepts, establishing "in the course and scope of employment," i.e., time, space, and circumstances, as an element of occupational causation. Additionally, as appellant points out, the Legislature did not change the definition of "employment" or "injury." Compare § 440.02(15)(a), (17), Fla. Stat. (Supp. 1994),
with § 440.02(15)(a), (17), Fla. Stat. (1993). Nor did the Legislature significantly change the definition of "accident," at least for the purposes of this analysis. Compare § 440.02(1), Fla. Stat. (Supp. 1994), with § 440.02(1), Fla. Stat. (1993). Therefore, by including "in the course and scope of employment" in the definition of "arising out of," the Legislature presumably did not intend to change prior case law concerning the phrase "in the course and scope of employment;" rather, the Legislature has simply combined the two phrases, one as part of the definition of the other.Vigliotti, 680 So.2d at 468.
Because the E/SA here failed to prove a personal condition or personal risk was involved in Bouayad's accident instead of mere hypothesizing about potential shooters, the majority should not have applied the Dokoupil test. If a nonwork-related factor is not in play, 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 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 a risk of injury greater than the employee would normally encounter in non-employment life." Bryant, 672 So.2d at 631 (citing Hillsborough Cnty. Sch. Bd. v. Williams, 565 So.2d 852, 854 (Fla. 1st DCA 1990)).
Judge Kelsey's dissent raised concern regarding the majority's emphasis on the motive of the third-party tortfeasor/assailant. This Court has always, until now, condemned this very emphasis. See Speen v. Rogers Grp., Inc., 548 So.2d 740, 743 (Fla. 1st DCA 1989) (citing Talisman Sugar Corp. v. Bruce, 8 FCR 268 (Fla. Indus. Rels. Comm'n), cert. denied, 96 So.2d 49 (Fla. 1974) (affirming compensability where the claimant, who was not the aggressor, was shot on his employer's premises by a fellow worker who had no "discernable motive"). One ramification of receding from this long-standing precedent is the predictable constitutional rub. A focus on motive of the criminal assailant in compensability determinations for employee/victims of violence results in "as applied" unconstitutional application if the assailant is not captured or is unavailable. How can the teenage employee-victim working to put herself through school prove work-relatedness (that the unapprehended assailant's motive was to rob and rape her because she was working alone at night as a cashier at the convenience store, with a drawer of money and an unlocked store entry door)? Before the Bouayad decision, injuries suffered by these employee/victims were de facto compensable unless the employer brought forth evidence that the attack was non-work related-i.e., personal in nature. How can a teacher shot in her classroom prove the motive of the unapprehended or deceased gunman who leaves no declaration of intent? In the aftermath of the majority opinion, the bullet fired from a gun which injured or killed the teacher is considered the mechanism of the injury and firing guns is not within the expected and customary job duties of teaching. This onerous burden is unconstitutional in countless predictable fact patterns.
Because this matter is of great public importance and the majority's legal rationale departs from long-standing precedent, the case should have been considered en banc. It wasn't. Now we must rely on the supreme court and even the Legislature, if necessary, to preserve the bedrock principles of Chapter 440 and restore uniformity in this Court's workers' compensation jurisprudence. Respectfully, I urge both to provide relief.