                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

JERMAINE DAVIS,                        NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D15-2746

PALM BEACH COUNTY
SHERIFF'S OFFICE/USIS,

      Appellees.

_____________________________/

Opinion filed July 25, 2016.

An appeal from an order of the Judge of Compensation Claims.
Mary A. D’Ambrosio, Judge.

Dates of Accidents: July 20, 2012, and April 24, 2011.

Barbara B. Wagner of Wagenheim & Wagner, P.A., Fort Lauderdale, and Michael
R. Riedhammer of Haliczer Pettis & Schwamm, P.A., Fort Lauderdale, for
Appellant.

Hinda Klein and Thomas G. Regnier of Conroy Simberg, Hollywood, for Appellees.



PER CURIAM.

      In this workers’ compensation appeal, Claimant first argues that the Judge of

Compensation Claims (JCC) erred in applying the 30-day notice requirement for the

reporting of injuries arising out of and in the course and scope of employment, found
in subsection 440.185(1), Florida Statutes (2012), to his subsequent intervening

accident for which he sought coverage under subsection 440.092(5), Florida Statutes

(2012). Because we agree, we need not reach Claimant’s second argument.

      Claimant, a corrections officer, complained of a painful right calf on July 20,

2012, after making his rounds in a high-risk security area. Claimant immediately

reported this circumstance to his Employer, and was sent to a doctor. On July 26,

2012, the Employer/Carrier (E/C) denied compensability of the accident in its

entirety, on grounds that the incident did not meet the statutory definition of an

accident, and that it represented an idiopathic condition. The E/C later rescinded the

denial effective January 14, 2013, and authorized medical treatment. In the interim,

on August 17, 2012, Claimant’s car was rear-ended as he left the physical therapy

facility Claimant was sent to by his at-the-time unauthorized treating physician.

      The litigation below began with Claimant filing a petition for benefits on

February 3, 2014, requesting that the E/C accept responsibility for the injuries

resulting from the motor vehicle accident. The E/C denied the request on grounds

Claimant failed to provide it timely notice of the August 2012 accident, and that

Claimant was not traveling to receive medical treatment at the time the accident

occurred.

      In the appealed order, the JCC found that “Claimant was receiving remedial

treatment at the time of his motor vehicle accident pursuant to Florida Statutes

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440.092(5). [The JCC found] that the injuries sustained by the Claimant in the motor

vehicle accident were the direct and natural consequence of the original injury of

July 20, 2012.” This finding is not challenged by the E/C. The JCC nevertheless

found that the accident was “not compensable under Florida Statute 440.185(1) for

the failure of the Claimant to advise his Employer within 30 days after the date of

the injury.”

      The JCC correctly noted that subsection 440.185(1) “requires an employee

who suffers an injury arising out of and in the course of employment to advise his

employer with 30 days” that an accident has occurred. The JCC erred, however, in

then reading subsections 440.092(2), (3), (4), and (5) to “require an injury to arise

out of and in the course of employment,” so as to implicate the 30-day notice

requirement.

      As defined in subsection 440.02(36), Florida Statutes (2012), “‘Arising out

of’ pertains to occupational causation. An accidental injury or death arises out of

employment if work performed in the course and scope of employment is the major

contributing cause of the injury or death.” Subsections 440.092(2), (3), and (4) do

involve circumstances where the injury “arises out of” work-related activities.

Subsection (5), on the other hand, contemplates a circumstance whereby a

previously-injured employee suffers a new and subsequent injury which is a “direct

and natural consequence of the original injury,” and places limits on when those new

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injuries will become the responsibility of the Employer. Unlike subsections (2)

through (4), in which, if the requirements are met, the accident itself is considered

to have arisen out of and in the course and scope of employment, subsection (5), as

noted, addresses a subsequent injury during an activity that does not fall within the

course and scope of the employee’s employment activities.

        Thus, by its plain language, subsection 440.185(1) does not apply to

subsequent accidents because the injuries sustained in those accidents do not “arise

out of and in the course of employment.” Because subsection 440.092(5) is silent

on any reporting requirement, we must look to section 440.19, Florida Statutes

(2012) (requiring generally that petition be filed within two years of date of accident

or one year from date of indemnity payment or furnishing of medical treatment), for

guidance as to the time limits for filing petitions for benefits.

        Accordingly, we REVERSE the JCC’s finding that Claimant failed to give

timely notice of his subsequent intervening accident, and REMAND for entry of an

order consistent with this opinion.

WOLF, LEWIS, and WINOKUR, JJ., CONCUR.




   This anomaly is one that may well warrant legislative consideration.
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