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By Richard T. Fuerst and Robert J. Grace, Jr., Bleakley Bavol Denman & Grace, Tampa, Florida
I. Introduction
Workplace violence is a disturbing issue that can have severe consequences for employees, employers, and the customers they interact with. Nationwide workplace violence seems to arise with greater frequency. Unfortunately, acts of violence can occur in any industry; therefore, the Florida’s Workers’ Compensation system, which is a critical aspect of protecting employees in the aftermath of workplace violence by providing lost wages and medical benefits, must be flexible and responsive to the wide array of potential physical and mental injuries that may arise.
This article examines how Florida Workers’ Compensation system manages claims involving violence in the workplace, including possible doctrines and defenses that may preclude coverage. Moreover, this article will analyze the legal precedents and types of evidence a Judge of Compensation claims will evaluate to determine whether benefits are due. Finally, this article will analyze how some of the deadliest terrorist attacks lead to substantial change the way Florida’s Workers’ Compensation statutes (also referred to as “Chapter 440”) address workplace violence.
II. The Four Primary Doctrines and Defenses for Florida Workers’ Compensation Claims Involving Workplace Violence
The fundamental purpose of Florida’s workers’ compensation process is to provide employees benefits for workplace injuries in place of common law remedies against employers. Taylor v. Sch. Bd. of Brevard Cnty., 888 So. 2d 1, 5 (Fla. 2004); See also §440.015, Fla. Stat. Of course, there are various defenses that employers, insurance carriers, and their servicing agents may raise to contest an employee’s right to recover benefits, such as untimely notice of an injury, misrepresentation, and even fraud. However, when a workplace injury involves violence, there are four defenses that are the most litigated. These defenses are:
Often these defenses overlap and may be asserted simultaneously. Therefore, it is important to know how Florida courts analyze and differentiate between these defenses.
a) The Arising Out of Requirement (Occupational Causation)
Section 440.09(1), Florida Statutes, states that “[t]he employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury or death arising out of work performed in the course and the scope of employment.” (emphasis added). The First District Court of Appeal noted that, “even when finding coverage, the inquiry is always made” to determine whether incidents involving workplace violence meet the “arising out of” requirement. Sentry Ins. Co. v. Hamlin, 69 So. 3d 1065, 1071 (Fla. 1st DCA 2011). Id. Significantly, the “course and scope of employment” phrase defines the “work performed” that the injury must “arise out of.” Id. at 1069. Chapter 440 does not cover an accident resulting in injury, which does not arise out of, but does occur in the course and scope of employment. Id. at 1071.
A condition is considered to “arise out of employment” when the employment necessarily exposes a claimant to conditions which substantially contribute to the risk of injury and to which the claimant would not normally be exposed during his life outside employment. Acker v. Charles R. Burklew Constr., 654 So. 2d 1211, 1212 (Fla. 1st DCA 1995). Florida courts have routinely noted that, in circumstances where the workplace is merely the fortuitous site of a personal assault which is purely private in origin, and the employment does not otherwise impact the altercation, compensation benefits are properly denied. Carnegie v. Pan Am. Linen, 476 So. 2d 311, 312 (Fla. 1st DCA 1985) (citing Tampa Maid Seafood Products v. Porter, 415 So. 2d 883 (Fla. 1st DCA 1982). Mere presence at the workplace is never enough, standing alone, to meet the “arising out of” prong of the coverage formula. Hamlin, 69 So. 3d at 1071.
The appellate court’s statement that “mere presence” is “never enough, standing alone, to meet the ‘arising out of’ prong of the coverage formula” implies that there are factors that Florida courts may consider in determining if injuries arising from workplace violence are compensable. Id. The seminal case, Tampa Maid Seafood Products v. Porter, 415 So. 2d 883 (Fla. 1st DCA 1982) and its progeny, furnished Florida courts with a list of factors to consider when determining whether workplace violence is compensable.
i) Florida Uses the Porter Factor Test to Determine Entitlement to Benefits for Injuries Arising From Workplace Violence
In Tampa Maid Seafood Products v. Porter, 415 So. 2d 883 (Fla. 1st DCA 1982), the claimant was a twenty-two-year-old woman who was employed by Tampa Maid Seafood Products to peel shrimp. Id. at 884. Both the claimant and a fellow female employee were romantically involved with a third, male employee. Id. The female employee heard others gossiping about the love triangle at work, and she confronted the claimant. Id. An altercation ensued, wherein the claimant was slashed and stabbed with the employer’s shrimp peeling knife. Id.
On appeal, the appellate court acknowledged legal precedent that a claimant’s domestic or private life culminating in an assault, which was not engendered, exacerbated, or facilitated by the claimant’s employment, should be held non-compensable. Id. at 884-85. The Porter court, however, noted the deputy commissioner correctly determined there were several factors which removed it from the aforementioned rule. Id. at 885. More specifically, the First District Court of Appeal emphasized that:
[t]he dispute culminating in the assault was exacerbated by the employment because of the close proximity between the claimant and her assailant; the relationship between them and Mr. Fields originated at work; and the knife used in the assault was used at work, thus “facilitating the assault.” It was not merely fortuitous that the assault occurred on the premises of the employer.
Id. The Porter court held that by facilitating an assault that would not otherwise have been made, the employment became a contributing factor; as a result, the injuries were compensable. Id.
The First District Court of Appeal subsequently reaffirmed the list of factors for compensable workplace accidents arising out of violence in Carnegie v. Pan Am. Linen, 476 So. 2d 311 (Fla. 1st DCA 1985). In this case, the claimant, Andrew Carnegie, was injured at work by a female coworker with whom he had been romantically involved. Id. When Mr. Carnegie arrived at work, the female co-worker confronted him regarding the end of their relationship. Id. The precise circumstances of the ensuing fracas were disputed, but it was apparent that the female co-worker armed herself with one of the employer’s knives on the premises and Mr. Carnegie sustained a knife wound. Id. at 312. At the final hearing, the deputy found Mr. Carnegie’s altercation to be “purely personal” [fn1] and denied compensability. Id.
On appeal, however, the Carnegie court acknowledged that “compensation may be appropriate for injuries sustained from a personal altercation if the employment is in some way a contributing factor.” Id. The deputy commissioner erroneously concluded that the claimant’s employment neither exacerbated nor contributed to the injurious altercation. Id. More precisely, the deputy commissioner erred by failing to consider the other factors set forth in Porter, including the circumstances of the employment that “placed the workers in close proximity, that the personal relationships originated at work, and that the knife used was an implement of the employment.” Id. The claimant’s “work environment” was a contributing factor to the alteration and the deputy judge’s decision was ultimately reversed and remanded on appeal.
Since then, the factors espoused in Tampa Maid and reiterated by Carnegie have become the guideposts to help many Florida judges determine whether coverage exists for injuries involving workplace violence. See e.g., Spleen v. Rogers Group, Inc., 548 So. 2d 740, 741 (Fla. 1st DCA 1989) (finding construction laborer’s injuries arising from personal lunch debt was compensable as employment placed construction workers in close proximity, combatants’ relationship originated at work, and wood used in altercation was implement of employment); Sentry Ins. Co. v. Hamlin, 69 So. 3d 1065 (Fla. 1st DCA 2011)(finding employee’s injuries were “purely personal” and not compensable as the employee was run over while he was attempting to remove belonging from his personal vehicle while it was being repossessed in the company’s parking lot). Significantly, “not all factors need to be present in all cases of compensability.” Santizo-Perez v. Genaro's Corp., 138 So. 3d 1148, 1149 (Fla. 1st DCA 2014) (listing factors) (emphasis added). Rather, as articulated in footnote 4 of the opinion in Santizo-Perez, it is sufficient that the claimant proves either the workplace environment increased his risk of attack or that it was motivated by something related to the employment to establish the requisite causal link. Id. at 1150.
ii) The List of Factors a Judge of Compensation Claims May Consider in Determining Compensability of Injuries Involving Workplace Violence
Any attorney, claims adjuster, employer or Judge of Compensation Claims should consider the full list of factors that may make a workplace injury involving violence compensable. Indeed, the Carnegie court reversed and remanded based on the deputy commissioner’s failure to consider the factors exposed in Porter and evidentiary discrepancies. Carnegie, 476 So. 2d at 311, 312. Based on Porter and its progeny, the factors to consider include:
Of course, some jobs are more prone to being exposed to workplace violence than others. One would expect a security guard or police officer to be more likely to sustain an injury “arising out of” violence at work than a secretary or grocery store employee. Properly applying the factors, however, demonstrates that the realm of compensable workplace injuries involving violence is broader than one may initially presume.
In particular, the fourth listed factor is phrased broadly and creates new opportunities for compensable claims involving workplace violence. For example, in Jenkins v. Wilson, 397 So. 2d 773 (Fla. 1st DCA 1981) a legal secretary was working late and alone when she was abducted from a parking lot adjoining her office building and raped. Id. The assailant was arrested and convicted, but his motives were never disclosed and there was no evidence of anything being related to work other than the secretary working late caused her to be alone when the assault occurred. Id. The sole issue was whether the rape arose out of employment. Id. The First District Court of Appeal held there was competent and substantial evidence that the secretary’s employment “created a hazard from which her injury arose.” Id. at 755.
Similarly, in Santizo-Perez v. Genaro's Corp., 138 So. 3d 1148 (Fla. 1st DCA 2014), a grocery store employee was run over in the store’s parking lot, leaving him in a vegetative state that ultimately resulted in death. Id. at 1148-49. The driver of the car turned out to be the boyfriend of another employee at the grocery store; the criminal assailant confessed that he planned the murder as retribution for the claimant’s sexual harassment of his girlfriend. Id. at 1149. The Judge of Compensation Claims concluded that the injury did not arise out of his employment because there was no evidence that “anything in the decedent's employment was related to him being put at risk of being murdered,” “[t]he vehicle used in the assault was not an implement of the employment," “[t]here is no evidence of a close proximity between the decedent and his assailant,” and the location of the attack was merely “convenient” or “fortuitous” because, given the assailant's belief that his girlfriend was being sexually harassed by the decedent, “chances were the assault was inevitable, without regard to the employment.” Id. (alteration in original). The Judge of Compensation Claims further concluded the “assailant could just as easily [have] hit [the decedent] with the vehicle or attacked him in some other way elsewhere.” Id. (alteration in original). However, the First District Court of Appeal reversed and remanded the decision, finding that the claimant’s environment increased the risk of being hit by a car and the assault was motivated by the sexual harassment at work. Id. at 1150.
Based on the body of common law and list of factors Florida courts have developed over the years, it is rare for a workplace injury involving violence not to “arise out of” the claimant’s employment. Only when the risk is imported to the workplace by the claimant and fails to meet the above-mentioned factors will a denial based on the “arising out of” defense be likely to prevail. See e.g., Hamlin, 69 So. 3d at 1065.
b) The Deviation from Employment Defense
In 1990, the Florida Legislature added section 440.092(3), Florida Statutes, which states:
An employee who is injured while deviating from the course of employment, including leaving the employer's premises, is not eligible for benefits unless such deviation is expressly approved by the employer, or unless such deviation or act is in response to an emergency and designed to save life or property.
Florida courts have ruled that workers’ compensation benefits will be provided if the deviation is “momentary” and “insignificant.” See e.g., Jean Fluet, Inc. v. Harrison, 652 So. 2d 1209 (Fla. 1st DCA 1995). Conversely, the benefits will be denied if the deviation is “substantial.” See e.g., Galaida v. AutoZone, Inc., 882 So. 2d 1111 (Fla. 1st DCA 2004).
At first glance, one might assume that, outside of law enforcement and security guards, this statutory rule would preclude recovery to any employee who engages in violence and is injured. Obviously, there are very few occupations where violence is both legal and endorsed by the employer. There are, however, two exceptions that can greatly abrogate this statutory defense.
i) The Horseplay Doctrine
First, Florida’s horseplay doctrine considers some instances of playful fighting and roughhousing at work to be compensable. See e.g., Jean Fluet, Inc. v. Harrison, 652 So. 2d 1209 (Fla. 1st DCA 1995)(finding horseplay involving nail throwing employees to be “stupid” but compensable as activity lasting a few “seconds” was not a “wholesale abandonment of the claimant’s work” and “was sufficiently common to be expected occasionally”); Dunlevy v. Seminole Cnty. Dept. of Pub. Safety, 792 So. 2d 592, 594 (Fla. 1st DCA 2001) (finding firefighter who was injured “wrestling around” with a coworker between shifts for one to three minutes had violated employer’s policy against horseplay but had not abandoned duties to preclude benefits).
The horseplay doctrine exists in other states besides Florida, however, the social policy driving the doctrine remains largely the same across states. Compare Jean Fluet, Inc. 62 So. 2d at 1212 (noting horseplay doctrine developed as a result of “dissatisfaction with the early narrow interpretation of industrial injury, i.e., that “aberrations in machines could qualify as accidents, but aberrations in fellow-employees could not.”) with Briger v. Toys R Us, 653 N.Y.S.2d 199, 200 (1997) (“It is well settled that frivolous activities or horseplay although involving intentional acts, are natural diversions between co-employees during lulls in work activities and injuries sustained during them are compensable under the provisions of the Workers’ Compensation Law as an incident of the work”)(emphasis added). In other words, the horseplay doctrine was developed as some frolic and play is to be expected as a part of working; however, if the frolic and play is so substantial the employees’ duties are abandoned, there is no entitlement to benefits.
There must be a “substantial deviation” from standard employee behavior to preclude benefits. See e.g., City of Miami v. Granlund, 153 So. 2d 830, 831 (Fla. 1963) (denying benefits as claimant’s actions of grabbing officer’s pistol, and playfully turning the pistol to his own head before pulling the trigger was “horseplay of such substantial character as to amount to abandonment of his employment.”). To determine whether an employee’s horseplay is substantial enough to preclude compensability, Florida courts will examine the four factors furnished in Times Publishing Co. v. Walters, 382 So. 2d 720 (Fla. 1st DCA 1980).
ii) The Times Publishing Co. Four Factor Test for Substantial Deviations
Significantly, the application of the horseplay doctrine stems from the same body of case law that analyzes whether there has been a significant deviation from employment to preempt benefits. The four factors Florida courts consider are as follows:
Greathead v. Asplundh Tree Expert Co., 473 So. 2d 1380, 1383 (Fla. 1st DCA 1985) (citing Times Publishing Co. v. Walters, 382 So. 2d 720 (Fla. 1st DCA 1980)). Based on the aforementioned factors, a claim is more likely to be barred as a substantial deviation from employment if the employee was violating the employer’s policies, forgoing their duties, and engaging in unforeseeable behavior that resulted in serious injury. Compare Galaida v. AutoZone, Inc., 882 So. 2d 1111 (Fla. 1st DCA 2004)(denying benefits after an auto parts store employee accidentally discharged a firearm into his leg. Possession of the firearm, in violation of the employer’s policy, did not further employer’s interests and was a substantial deviation) Roger Martinez v. Safe Environment Business Solutions and Public Service Mutual, Inc., OJCC Case No. 10-029485GHB, Ft. Lauderdale District Office, August 8, 2011 (granting benefits after loss prevention officer was kicked in the head when attempting to direct or push a suspected shoplifter back into Walgreens. Although claimant testified use of force was prohibited in the manual, he was never reprimanded for prior physical confrontations and loss prevention furthered employer’s interests).
From a practical standpoint, the four Times Publishing Co. factors provide an outline for employers who believe a claimant’s injuries are the result of the deviation from their job. Violence in the workplace can easily result in serious bodily injury or death depending on the aggression. To mitigate this potential risk, employers should have policies in place to deescalate confrontations, dissuade horseplay, and prohibit an employee’s use of force. As reflected in the Dunlevy and Roger Martinez cases, it is not enough that written policies ban physical confrontations and horseplay, supervising staff should routinely demonstrate an intolerance for violations and rule breaking. Lack of punishment may be perceived as informal approval which would make similar misconduct foreseeable and help establish the causal link necessary to a finding of compensability.
c) The Aggressor Doctrine
Section 440.09(3), Florida Statutes reads as follows:
Compensation is not payable if the injury was occasioned primarily by the intoxication of the employee; by the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician; or by the willful intention of the employee to injure or kill himself, herself, or another.
(emphasis added). Unlike most instances under workers’ compensation law, this Florida statute allows a court to examine fault and deny benefits to an employee who willfully intentions to injure or kill themselves or another.[fn2] More specifically, Florida law does not allow the aggressor in the fight to collect compensation, even if the underlying issues are work-related. The statutory exception is premised on the idea that an employee’s injuries from his own acts of aggression are not risks of employment and therefore not compensable. Tucker Taxi, Inc. v. Schofield, 107 So. 2d 188, 191 (Fla. 1st DCA 1958) (noting section 440.09(3), Florida Statutes merely reiterates the rule of case law that “the aggressor in an admittedly work-connected fight cannot recover compensation.”)(emphasis added in bold).
i) Florida Courts Adopted Louisiana Law to Define Willful Intention and Deny Claims for Benefits
Over the years, Florida courts have expounded upon the “willful intent” component of the statute. In Tucker Taxi, the appellate court denied compensation for an employee’s death that was caused by his willful intent to injure his superior in a fight. Tucker Taxi, 107 So. 2d at 191. The Tucker Taxi court held that the employee’s deliberate acts of aggression were tantamount to a willful intent to injure apart from instinct and impulse; the word “intention” as used in the statute was “an act that is premeditated or deliberate.” Id.
The First District Court of Appeal expanded on the “willful intent” requirement in 391st Bomb Group v. Robbins, 654 So. 2d 1200 (Fla. 1st DCA 1995). In 391st Bomb Group, the claimant injured himself when he thrust his hand through the security window of an exit door after he shouted profanities, punched a wall, and then attempted to leave through the exit. Id. at 1201. Using the precedent set forth in Tucker Taxi, the 391st Bomb Court found that the claimant’s aggressive actions were “tantamount to willful intention to injure so as to be outside the course and scope of employment.” Id. 1202. Since there was no case expounding upon the distinction between willful acts and impulsive acts in Florida, the First District Court of Appeal adopted the holding of Relish v. Hobbs, a Louisiana Court of Appeal case which stated:
“The test (of willful intent to injure) should involve an inquiry into (1) the existence of some premeditation and malice ..., coupled with (2) a reasonable expectation of bringing about real injury to himself or another.” This clearly means that willfulness, as distinguished from impulsiveness, is not the sole test. Every impulsive act is not condoned by the statute. Some acts, even though impulsive, are so serious and so likely to result in real injury, that they must be construed to show a willful intent to injure.
Id.(citing Relish v. Hobbs, 188 So. 2d 479, 481 (La. Ct. App. 1966). The First District Court of Appeal denied compensability and held that “the claimant’s act, even if impulsive, was so serious and so likely to result in real injury that it must be construed to show willful intent.” 391st Bomb Group, 654 So. 2d at 1200, 1202-03. (emphasis added). Put simply, Florida courts have determined that some acts of aggression are so certain to result in harm, such as punching a window or wall, that they are deemed willful and thereby non-compensable under section 440.09(3), Florida Statutes. See e.g., Restoration Tech. v. Reyes, 936 So. 2d 1187, 1188 (Fla. 1st DCA 2006).[fn3]
ii) The Aggressor Doctrine is Heavily Reliant on Witness Testimony and Credibility
Under Florida Workers’ Compensation Law, whoever started the fight is the “aggressor.” See Florida Forest and Park Service v. Strickland¸ 154 Fla. 472, 18 So. 2d 251, 254 (1944) (defining the aggressor as one who first made an assault upon the other with the intent to injure or kill). The issue becomes proving who first made the assault with the requisite intent. Notably, the person that reaches out and touches another person first is not always the “aggressor.”
By way of example, in Michael Harris v. School Board of Manatee Cnty./Johns Eastern Company, Inc., OJCC#14-001747DBB, Sarasota District, August 13, 2014, the claimant was a substitute teacher at Sugg Middle School. After the claimant began teaching, a student disrupted the classroom by shutting off all the lights with a swipe of his hand and swiping a hat from another student. Id. at 2. The claimant followed the student out of the classroom, asked the student to stop, and grabbed the student’s arm. Id. Significantly, the student slipped his bookbag off his right shoulder and hit the claimant in his left ear. Id. In deciding the merits of the case, the Judge of Compensation Claims rejected the employer/carrier’s argument that the claimant’s arrest for battery from the event was sufficient evidence to deny workers’ compensation benefits and further stated: “the law cited above does not base aggressor status on a technical battery, such as holding or grabbing the arm of a student to stop them from leaving. The aggressor is not the person who starts the argument, but is the one who first acts with an intent to injure the other.” Id. at 6. (emphasis added). The claimant’s act of grabbing the student was found to be an instinctive, impulsive response to the student’s disruptive behavior and was therefore compensable. Id.
As evidenced in the cases cited above, either attacking or defending an aggressor doctrine defense requires a careful analysis of the participants’ actions, relationships, and motivations. Often, this analysis is contingent upon the participants’ credibility and testimony. Florida court will carefully examine consistencies and inconsistencies presented in the facts to determine who was likely the aggressor and either award or deny benefits. See e.g., Sasenaraaine Jurakhan v. Orange Cnty. and Alternative Service Concepts, OJCC#11-016473WJC, Orlando District Office, March 12, 2012 (noting “problems with the reliability” of both the claimant and co-employee regarding their fight, but ultimately denying compensability under the aggressor doctrine as “all of the witnesses”, with the exception of the claimant, testified to claimant’s aggressive behavior before the fight began); Daniel Perez v. Walmart #1349 and Sedgwick Claims Management Services, Inc., OJCC#10-027598GBH, Ft. Lauderdale District Office, February 2, 2012 (finding co-employer’s “demeanor” during his testimony at trial supported a finding that the claimant was “not the aggressor in the physical altercation”); Ana. R. Rodriguez v. Paradise Hotels Mgmt., LLC. and Twin City Fire Ins. Co., OJCC#14-017052DBB, Sarasota District Office, July 9, 2015 (finding claimant’s demeanor more trustworthy and consistent with remaining evidence that she was not the aggressor. Co-employee’s inconsistency between her earlier testimony about the fight and the final hearing was more dramatic and less credible).
If there are no witnesses able to provide testimony, then video evidence where available should be introduced to help a judge evaluate any “aggressor doctrine” defense. In Abel Gonzales v. Murphy’s Law Pizza T/A Dominos/Technology Ins. Co. and Guarantee Ins. Co., OJCC#14-014807RDM, Port St. Lucie District Office, November 18, 2014, the claimant, a sign spinner, was dressed in a cow suit and trying to entice customers into his employer’s pizzeria when a driver “virtually brushed him” with his vehicle. The claimant alleged he confronted the driver over his driving and the driver used “either a knife or brass knuckles” to attack the claimant. The claimant alleged he was not the aggressor and merely defended himself from attack. Notably, the claimant only sustained a cut on his chin below the left side of his lower lip. In stark contrast to the claimant’s unrefuted testimony, the court was able to see what actually occurred due to video surveillance. The video showed the claimant, dressed in a cow suit, approaching the driver. The driver’s arms were at his sides when the claimant struck the driver in the face. The Judge of Compensation Claims determined the claimant was the aggressor and disqualified from receiving benefits. Without surveillance video acting as a silent witness to the assault, the claimant’s unrefuted testimony in the Abel Gonzales case may have entitled him to benefits.
d) Florida Compensates Victims of Workplace Violence for Their Mental Trauma Under Limited Circumstances
For many years, the foundational policy of Florida’s Workers’ Compensation system has been to preclude compensability for mental or nervous injuries, including those occasioned by stress, unless there is an underlying physical injury. §440.093(1), Fla. Stat. For a mental or nervous injury to be compensable in Florida, there must have been a physical injury. Otherwise, the disability would have been caused only by a mental stimulus and must be denied coverage under the statutory exclusion. City of Miami Beach v. Morantes, 633 So. 2d 491, 493 (Fla. 1st DCA 1994). A mere touching cannot suffice as a physical injury and the physical injury must be the causative factor in the claimant’s alleged mental or nervous injury. Id. “Obviously, when a physical injury is more serious, there is a greater likelihood that it played a part in the ensuing mental disorder[,]” but “the fact that a physical injury is relatively minor will not necessarily result in denial of compensation for mental or nervous injury.” City of Holmes Beach v. Grace, 598 So. 2d 71, 74 (Fla. 1992).
i) Generally, Florida Requires a Nexus Between the Physical Injury and Mental or Nervous Injury to Award Benefits
Sometimes this policy leads to harsh results. For instance, in City of Holmes Beach v. Grace, 598 So. 2d 71, 72 (Fla. 1992), a police officer was attempting to handcuff a suspect who was face down on the ground, and struggling. Despite being facedown, the suspect elbowed the officer several times. Id. The officer withdrew his gun from the holster, pointed it at the suspect’s back, and attempted to put on the handcuffs again. Id. The suspect moved, causing the gun to discharge and kill the suspect. Id. Although the officer suffered post-traumatic stress disorder from the event, the Florida Supreme Court noted that a “mere touching” is not compensable. Id. at 73.[fn4] There was no physical injury caused by the elbowing that would have resulted in the psychiatric illness, so the Florida Supreme Court denied benefits to the officer. Id. at 74.
Similarly, in Liberty Corr. Inst. v. Yon, 671 So. 2d 194 (Fla. 1st DCA 1996), a correctional officer was forced to endure a single instance of sexual intercourse followed by several episodes of sexual touching by her superior. Id. at 195. Although the correctional officer was diagnosed with depressions, post-traumatic stress disorder, and fibromyalgia (“a pain amplification syndrome caused by sleep disturbance and intense stress”), the appellate court denied benefits on the basis there was no evidence the correctional officer suffered a physical injury as a result of the sexual harassment. Id. at 196. The physical manifestation of the correction officer’s psychological injuries in the form of fibromyalgia did not satisfy the claimant’s burden of proving a compensable workplace injury. Id.
Conversely, in Watson v. Melman, Inc., 106 So. 2d 433 (Fla. 3d DCA 1958) an employee received compensation for mental or nervous injury even though her physical injury was minimal. In Watson, the claimant was working in her employer's place of business when a fellow employee tossed a cardboard spool weighing eight and one-half ounces toward the claimant, intending that it should go over her head and into a trash receptacle fifteen feet away. Id. at 434. The edge of the spool struck the claimant behind her ear, causing a slight discoloration of the skin. Id. No sign was left on the area where the blow struck. Id. The court upheld the compensation award for the “traumatic neurosis” which resulted from the incident. Id. at 435.
Without a nexus between a physical injury and a mental injury, Florida courts will decline to find most mental injury cases non-compensable. In recent years, the Florida legislature has carved out an exception to this general rule.
ii) First Responders May Recover Benefits for Purely Mental and Nervous Injuries Without a Physical Injury
In 2007, Governor Charlie Crist signed a bill that broadened compensation coverage for first responders. See Harper Gerlach PL, Florida Lawmakers Broaden Workers’ Comp. Coverage for ‘First Responders,’ 19 NO. 8 FLA. EMP. L. LETTER 1 (2007). The statute defined a “first responder” as “a law enforcement officer, . . . a firefighter, . . . an emergency medical technician [EMT] or paramedic . . . employed by state or local government” and allowed some compensation, such as medical benefits, for purely mental injury. §112.1815(3), Fla. Stat. However, the statute explicitly stated that “[f]or a mental or nervous injury arising out of the employment unaccompanied by a physical injury . . . only medical benefits . . . shall be payable,” and that “payment of indemnity . . . may not be made unless a physical injury arising out of injury as a first responder accompanies the mental or nervous injury.” Id. In other words, the Florida Legislature lifted the physical injury requirement for first responders seeking medical benefits only, but maintained an underlying physical injury was required for indemnity benefits. A law enforcement officer, firefighter, EMT, or paramedic employed by Florida’s government could receive medical benefits for the anxieties and stress incurred from their job from sight alone.
However, the Florida Legislature once again expanded the workers’ compensation coverage available to first responders following the infamous Pulse nightclub shooting in 2016. The mass shooting is currently ranked as the second deadliest in our nation’s history. See Michael Ray, Orlando Shooting of 2016, https://www.britannica.com/event/Orlando-shooting-of-2016 (last updated Jun. 27, 2023). Naturally, there were first responders who witnessed the gruesome aftermath and suffered mental illness, such as post-traumatic stress disorder. David Harris, Pulse First Responders Hail Passage of Bill Extending Benefits for PTSD, https://www.orlandosentinel.com/2018/03/12/pulse-first-responders-hail-passage-of-bill-extending-benefits-for-ptsd/ (last updated Dec. 14, 2018) . Under the prior iteration of the Florida Statute, first responders, like Orlando Police Officer Gerry Realin, were denied indemnity benefits even though their post-traumatic stress disorder rendered them unable to work. Id.; See also Gerry Realin v. City of Orlando Police Department, OJCC# 16-016778NPP, Orlando District Office, January 11 2018. Public opinion in favor of expanding coverage increased even more as the Parkland school shooting happened three months before the new bill hit the floor. Ultimately, Governor Rick Scott signed Senate Bill 376 in March of 2018. See S.B. 376, 2018 Leg. (Fla. 2018).
The legislation abrogated the rule that a physical injury is necessary to receive medical and indemnity benefits with respect to first responders only. More specifically, the Florida Legislature modified the following workers’ compensation statutes.
There have been further efforts to expand coverage for first responders suffering from PTSD. Governor Ron Desantis signed Florida House Bill 689 into law on May 26, 2022. This bill extends the deadline for filing a workers’ compensation claim for first responders to 90 days after a qualifying event or “diagnosis” of PTSD. See H.B. 689, 2022 Leg. (Fla. 2022).
It remains to be seen whether these statutory exceptions will be expanded to other fields and industries in Florida. Currently, only first responders are the exception to Florida’s rule that a physical injury is needed to claim medical and indemnity benefits for a mental or nervous injury.
III. Conclusion
When there are incidents of workplace violence and injury, Florida’s Workers’ Compensation Judges will generally find the incidents meet the “arising out of” test for compensability. The facts will ultimately determine whether Florida’s substantial deviation doctrine or the aggressor doctrine apply. While some horseplay is permitted, aggression which causes one to abandon their duties or instigate a fight will not be rewarded. In the unique set of circumstances where an employee attempts to claim a mental or nervous injury for witnessing violence at the workplace, only first responders may receive benefits under the recent statutory changes. All other employees will be precluded from claiming a mental injury unless there is a nexus with a physical injury.
Footnotes:
1. Under Florida law, an altercation that is “purely personal” or “purely private” is not compensable. See, e.g., Ivy H. Smith Co. v. Wingo, 404 So. 2d 1118, 1119 (Fla. 1st DCA 1981)(finding employee’s stabbing injury between co-workers arose from “a purely private and personal agreement related to a car pool arrangement” which was not a part of employment and not compensable); San Marco Co., Inc. v. Langford, 391 So. 2d 326, 327 (Fla. 1st DCA 1980) (finding shooting injury arising from a personal debt owed between co-workers on company premises was not compensable as the assault was purely private and personal).
2. Notably, not all states have an aggressor doctrine defense like Florida. Compare Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991)(rejecting initial aggressor defense as being inconsistent with no-fault scheme of the Workers’ Compensation Act of Colorado) with Rorie v. Holly Farms Poultry Co.,306 N.C. 706, 295 S.E.2d 458, 460 (1982) (quoting N.C. Gen. Stat. § 97–12(3) and holding that North Carolina’s act exempts compensation for a claimant’s “willful intention to injure or kill himself or another” and interpreted statute to provide an aggressor defense).
3. Although beyond the purview of this article, it should be noted that more egregious forms of self-harm (i.e., suicide) may also be compensable under section 440.09(3), Florida Statutes. Estate of Jenkins v. Recchi America, 658 So. 2d 157, 162 (Fla. 1st DCA 1995) ( a “suicidedeath is compensable where the evidence shows that the employment injury causes a mental disturbance, such as serious depression, involving a loss of normal judgment, which mental disturbance in turn is the cause of the employee’s suicide. Under such circumstances, a suicide is not willful[.]) (alteration in brackets).
4. The Florida Supreme Court expressly disapproved of prior cases where the First District Court of Appeal awarded benefits for psychological harm caused by a mere touching, such as Sheppard v. City of Gainesville Police Department,490 So. 2d 972 (Fla. 1st DCA 1986) Prahl Brothers, Inc. v. Phillips, 429 So.2d 386 (Fla. 1st DCA). City of Holmes Beach, 598 So. 2d at 74. Although the Florida Supreme Court was “sympathetic to the motivation” in awarding benefits in those cases, the logic was contrary to the Florida’s Workers’ Compensation statutes. Id.
© Copyright 2023 Richard T. Fuerst, Robert J. Grace, Jr., Bleakley Bavol Denman & Grace. All rights reserved. Reprinted with permission.