The Burden of Proof Remains! Causal Connection Must Be Proven.

Marshall Dennehey

Normandy Insurance Company v. Mohammed Bouayad and Value Car Rental, LLC; Case No. 1D21-1717; On appeal from an order of the Office of the Judges of Compensation Claims, Neal P. Pitts; Decision date: August 16, 2023

The claimant, shot by unknown assailant while walking between his employer’s locations, did not meet his burden of proof. However, the District Court certified the below question to the Supreme Court for further clarification.

The claimant worked as the general manager for Value Care Rental in the Orlando International Airport Holiday Inn, which was near the airport and an industrial park. The premises of the car rental business consisted of a kiosk desk inside the hotel atrium and an office in a separate building that were separated by a 50-foot covered walkway with bushes on one side and what claimant alleged was a poorly lit smoking area to the other side.

On the date of the incident, at around midnight, the claimant was walking from the kiosk to the office with paperwork in hand, but no cash. As he passed the smoking area, an unknown assailant emerged and shot him seven times at close range. The assailant did not attempt to rob or take anything from him. After, the claimant told a guest, “Robert shot me,” and that the police should look for a blue Mustang.

The claimant petitioned for workers’ compensation benefits, which the employer/carrier denied, arguing that his injures did not arise out of his work because he and his family had been threatened the day before the shooting. However, the parties stipulated that he was in the course and scope of his employment. The claimant later retracted his claim that Robert shot him. Each party presented criminal expert witnesses to testify about whether there was an increased risk of becoming a victim of crime when at work versus at home.

After rehearing, the Judge of Compensation Claims held that the claimant’s work environment contributed to a higher likelihood of being a victim of crime. On appeal, the First District Court of Appeal pointed out that it is the claimant’s burden of proof to show that his accident happened not only in the course and scope of employment, but also that it arose out of it. Here, the claimant had the burden of showing occupational causation, and it was not the employer’s/carrier’s burden to show that there was a non-work-related cause of his injuries. If the claimant satisfied his burden of showing that the accident arose out of his work, the burden would then shift to the employer/carrier to prove any affirmative defense. In this case, there were no competing causes to consider, the cause was known—he was shot—which meant the employer/carrier did not prompt the major contributing cause analysis by claiming it was personal in nature. The court distinguished this case from prior cases, such as Caputo v. ABC Fine Wine & Spirits, 93 So. 3d 1097, 1099 (Fla. 1st DCA 2012), arguing that previous landmark cases have had but one occupational cause. Therefore, the claimant was not required to submit evidence of a major contributing cause. The key in the previous cases is that the claimants met their burden of showing their work was causally connected to their injuries under the “any exertion” test.

The Court of Appeal reversed the judge’s award of benefits and held the claimant did not prove that his injuries arose out of his work. The court said that, at most, he was in the wrong place at the wrong time, which is not enough to establish occupation causation. They went on to say the question for the judge was, did the act of walking between Value’s facilities cause him to be shot? The court found it did not and that his injuries were caused by the act of the shooter.

They acknowledged the Supreme Court and First District Court of Appeal have found in the past that an employee’s injury is compensable even when the injury is caused by an act of a tortfeasor, such as in Strother v. Morrison Cafeteria, 383 So. 2d 623 (Fla. 1980). However, they distinguished each of the prior cases to this case at hand because in those cases, the assault was connected to the claimant’s work.

The court then certified the following question to the Supreme Court:

Notwithstanding Strother v. Morrison Cafeteria, 383 So. 2d 623 (Fla. 1980), when an act of a third-party tortfeasor is the sole cause of an injury to an employee who is in the course and scope of employment, can the tortfeasor’s act satisfy the occupational causation element, as defined by Section 440.02(36), Florida statutes, necessary for compensability under the Worker’s Compensation Law?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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