         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                           No. 1D17-96
                  _____________________________

SEDGWICK CMS and THE
HARTFORD/SEDGWICK CMS,

    Appellants,

    v.

TAMMITHA VALCOURT-WILLIAMS,

    Appellee.
                  _____________________________


On appeal from an order of the Judge of Compensation Claims.
W. James Condry, II, Judge.

Date of Accident: April 27, 2016.

                          April 5, 2019

                      ON HEARING EN BANC

WINSOR, J.

     Tammitha Valcourt-Williams, a workers’ compensation
claimant, tripped over her dog while reaching for a coffee cup in
her kitchen. Because she had a work-from-home arrangement,
and because her fall occurred during working hours, Valcourt-
Williams sought workers’ compensation benefits. The Judge of
Compensation Claims determined the injury was compensable,
concluding that the work-from-home arrangement meant the
employer “imported the work environment into the claimant’s
home and the [c]laimant’s home into the work environment.” But
the question is not whether a claimant’s “home environment”
becomes her “work environment”; the question is whether the
employment—wherever it is—“necessarily exposes a claimant to
conditions which substantially contribute to the risk of injury.”
Sentry Ins. Co. v. Hamlin, 69 So. 3d 1065, 1068 (Fla. 1st DCA
2011) (citing Acker v. Charles R. Burklew Constr., 654 So. 2d
1211 (Fla. 1st DCA 1995)). Here, the relevant risk was that the
claimant might trip over her dog while reaching for a coffee cup
in her kitchen. That risk exists whether the claimant is at home
working or whether she is at home not working. It existed before
Valcourt-Williams took her job, and it will exist after her
employment ends (so long as she maintains a home with a dog).
Because the risk did not arise out of the employment, we must
reverse.

     Valcourt-Williams was a workers’ compensation claims
adjuster for Sedgwick CMS, an appellant here. She was assigned
to Sedgwick’s Lake Mary office, but Sedgwick permitted her to
work from her home in Sierra Vista, Arizona. Because of the
different time zones, Valcourt-Williams began work at 4 a.m.
local time to meet the Lake Mary office’s 7 a.m. start time. On the
day of the accident, Valcourt-Williams had been working three
hours when she went downstairs for a cappuccino. As she reached
to get a cup, she fell over one of her two dogs. The fall resulted in
knee, hip, and shoulder injuries, as well as a workers’
compensation claim. Sedgwick denied the claim, contending that
the injuries did not arise out of the employment. After a hearing,
the JCC sided with Valcourt-Williams, and Sedgwick appealed.
The relevant facts are undisputed, and we review de novo the
JCC’s application of law to those facts. Aills v. Boemi, 29 So. 3d
1105, 1108 (Fla. 2010).

     Employers must provide workers’ compensation benefits
when employees sustain injuries from accidents “arising out of
work performed in the course and the scope of employment.”
§ 440.09(1), Fla. Stat. (2016). Accidents occur “in the course and
the scope of employment” when they occur “in the period of []
employment, at a place where [the employee] would reasonably
be, while fulfilling her duties.” Bryant v. David Lawrence Mental
Health Ctr., 672 So. 2d 629, 631 (Fla. 1st DCA 1996). Here, the
parties agree that Valcourt-Williams’s injuries occurred in the

                                 2
course and scope of her employment: the injury was during work
hours, her home was where she “would reasonably be,” and her
coffee break was a permissible “comfort break,” see Bayfront Med.
Ctr. v. Harding, 653 So. 2d 1140, 1142 (Fla. 1st DCA 1995)
(noting that “a worker’s attendance to personal comfort during a
refreshment break . . . does not . . . remove the worker from the
course and scope of his employment” (marks omitted)). “Course
and scope” is not the issue here.

     The issue here is whether the injury was “arising out of” the
employment. See Southern Bell Tel. & Tel. Co. v. McCook, 355 So.
2d 1166, 1167-68 (Fla. 1977) (noting “separate elements” of “in
the course” and “arising out of” employment); Sentry Ins., 69 So.
3d at 1070 (workers’ compensation does not cover accidents that
occur in course and scope but that do not arise out of
employment). As the Florida Legislature specified, “‘[a]rising 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.” § 440.02(36), Fla. Stat.; accord Strother v.
Morrison Cafeteria, 383 So. 2d 623, 628 (Fla. 1980) (“[T]o 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.”). More
simply, the “arising out of” limitation “requires that the risks
that caused [c]laimant’s accident and injuries [] be work-related.”
Sentry Ins., 69 So. 3d at 1068. An accident is thus compensable
only if “the employment necessarily expose[d] claimant to
conditions that would substantially contribute to the risk of
injury and to which the claimant would not normally be exposed
during his nonemployment life.” Acker v. Charles R. Burklew
Const., 654 So. 2d 1211, 1212 (Fla. 1st DCA 1995); accord Glasser
v. Youth Shop, 54 So. 2d 686, 687-88 (Fla. 1951) (finding injury
did not arise out of employment because claimant “was not on the
stairs because of his employment; he would have been there in
any event, regardless of whether he had brought his work
home”); Medeiros v. Residential Cmtys. of Am., 481 So. 2d 92, 93
(Fla. 1st DCA 1986); Grenon v. City of Palm Harbor Fire Dist.,
634 So. 2d 697, 699 (Fla. 1st DCA 1994) (“The employment must,
in some way, contribute an ‘increased risk’ of injury peculiar to


                                3
that employment; otherwise, the statutory requirement that the
injury ‘arise out of employment’ would be eliminated.”).

     This court has not hesitated to apply the “arising out of”
limitation where workplace injuries flowed from risks unrelated
to an employee’s work. In Medeiros v. Residential Communities of
America, for example, we held that if someone is injured at work
after fainting—but would have fainted just the same had she not
been at work—the resulting injury is not compensable. 481 So. 2d
at 93. The claimant in Medeiros could not succeed because she
could “not demonstrate[] that her physical surroundings on the
job in any way contributed to the risk of injury any more than
they would have in non-employment life.” Id. That same rule
applies whether the injury follows fainting, see id., a heart
attack, or—like here—a fall, see, e.g., Leon Cty. Sch. Bd. v.
Grimes, 548 So. 2d 205, 208 (Fla. 1989) (finding fall
noncompensable because claimant’s “employment in no way
contributed to her injury”); Duval Cty. Sch. Bd. v. Golly, 867 So.
2d 491, 494 (Fla. 1st DCA 2004) (“[W]e cannot say that a fall to a
level concrete floor is automatically compensable, irrespective of
the cause of the fall.”); Hernando Cty. Sch. Bd. v. Dokoupil, 667
So. 2d 275, 277 (Fla. 1st DCA 1995) (“The fact that the claimant
was in the course and scope of his employment when he fell is
insufficient; there must be some finding that the employment
created an increased risk of the fall itself or of the injuries which
resulted.”).

     Regardless of the type of injury, compensability always turns
on whether the employment led to the risk—whether there was
“occupational causation,” § 440.02(36), Fla. Stat. In other words,
it is not enough to say this was a “workplace trip-and-fall”
because there is no statutory trip-and-fall exception. Whether the
accident is a fall—or anything else—a claimant cannot prevail
unless there was occupational causation, a risk not existent in
the claimant’s “non-employment life.” Mederios, 481 So. 2d at 93;
accord Glasser, 54 So. 2d at 687 (“Since industry must carry the
burden, there must then be some causal connection between the
employment and the injury, or it must have had its origin in
some risk incident to or connected with the employment, or have
followed from it as a natural consequence.”). In Valcourt-
Williams’s case, there is no such risk. Instead, it is undisputed

                                 4
that features of Valcourt-Williams’s “non-employment life”—her
dog, her kitchen, her reaching for a coffee cup—caused the
accident.

     To adopt Valcourt-Williams’s contrary view, we would have
to hold that an employee’s tripping over her own dog at home on
a Friday is attributable to risks of employment while the same
employee’s tripping over the same dog at the same home on a
Saturday is not. We would have to hold that a home light
fixture’s falling on an employee in the afternoon is attributable to
risks of employment while the same home light fixture’s falling
on the same employee in the evening is not. And in doing so, we
would have to set aside the “arising out of” limitation the
Legislature enacted. Cf. Southern Bell, 355 So. 2d at 1168 n.3
(noting claimant’s concession that the same “activity might give
rise to the same [injury] if it occurred after work-hours, though in
that case there would be no recovery” and concluding that, “[i]n
short, [claimant] requested this Court to construe the ‘arising out
of’ requirement out of the statute, for all practical purposes”);
Hernando Cty. Sch. Bd., 667 So. 2d at 276-77 (“[I]f all falls onto
all surfaces were compensable, the statutory requirement that
the injury arise out of the employment would be completely
eradicated.”); Grenon, 634 So. 2d at 699 (“The Florida Supreme
Court has expressly declined to broaden the purpose of workers’
compensation legislation to allow recovery for all injuries
occurring in the workplace, including those arising out of
conditions personal to the claimant which are not caused or
aggravated by industry.”). We ought not do that.

     To be sure, a handful of our earlier cases have overlooked or
ignored the statutory “arising out of” limitation, and we have not
always been consistent in our application of that limitation. For
example, in Holly Hill Fruit Products, Inc. v. Krider, this court
upheld a claimant’s award where the claimant had been hit by a
car after leaving work to buy cigarettes. 473 So. 2d 829, 830 (Fla.
1st DCA 1985). The court held that the claimant’s leaving work
for an “off-premises refreshment break of insubstantial duration”
was not enough to “remove [the claimant] from the course and
scope of his employment.” Id. at 830-31. But the decision never
addressed whether the accident was “arising out of” the
employment. Id. To the extent Holly Hill is read to allow

                                 5
compensation without an “arising out of” component—without
occupational causation—it cannot square with the clear statutory
directive. See also Bayfront Med. Ctr. v. Harding, 653 So. 2d 1140
(Fla. 1st DCA 1995) (relying on Holly Hill to find compensable
off-premises car accident while employee sought food or
cigarettes); Gray v. Eastern Airlines, Inc., 475 So. 2d 1288 (Fla.
1st DCA 1985) (relying on Holly Hill to find compensable a flight
attendant’s basketball injury from a YMCA pick-up game on a
flight layover).

     Moreover, in at least one case, we arguably suggested that
any injury suffered on a “comfort break” within the course and
scope of employment was necessarily “arising out of”
employment. In Pan American World Airways v. Wilmot, we
found compensable a flight attendant’s injury after—while at
dinner on a layover—she “attempted to light a cigarette, and
burned her hand when the entire matchbook went up in flames.”
492 So. 2d 1373, 1373 (Fla. 1st DCA 1986). This court considered
the dinner to be within the “course and scope” of employment.
But rather than analyze the “arising out of” limitation, the court
rejected an argument that “risks arising from [smoking] are not
job-related” by saying the argument “ignores another principle
particularly applicable to workers’ compensation cases, the
personal comfort doctrine.” Id. at 1374. To the extent Wilmot
suggests that injuries necessarily arise out of employment
whenever the personal-comfort doctrine brings the injury within
the course and scope of employment, we reject it as inconsistent
not only with the statute but also with the supreme court’s
Southern Bell decision. See 355 So. 2d at 1168 (rejecting
compensability of bathroom injury sustained in course and scope
of employment because the accident was “simply not one ‘arising
out of . . . employment” (alteration in original)). If any ambiguity
remains, we hope to remove it now: For any injury to be
compensable, it must “arise out of” the employment; there must
be—as the statute says—“occupational causation.” § 440.02(36),
Fla. Stat.

     None of this is to say, of course, that work-at-home
arrangements immunize employers from workers’ compensation
claims. Just as employer-premises accidents can have
occupational causation, so too can work-at-home accidents. Had

                                 6
Valcourt-Williams suffered an injury from a risk her employment
introduced—a repetitive stress injury from typing all day, as one
potential example—it would be no answer for the employer to say
she was hurt in her own home. Cf. Metro. Dade Cty. v. Russell,
637 So. 2d 69, 70 (Fla. 1st DCA 1994) (noting that accidents can
be compensable if “the injury resulted from an effort, exertion,
risk, or strain beyond that which is normally encountered in
Claimant’s non-employment life”). Nor are we holding—as the
dissents mistakenly suggest—that there can be no
compensability unless the employee is actively working at the
time of the accident. An accident on a break, for example, might
still “arise[] out of employment,” § 440.02(36), Fla. Stat., where
“the employment necessarily expose[d] claimant to conditions
that would substantially contribute to the risk of injury,” Acker,
654 So. 2d at 1212. But none of this relates to the situation we
face here. Here, the risk at issue—that Valcourt-Williams would
trip over her own dog in her own kitchen while reaching for a
coffee cup—was not a risk her employment introduced.

     The Legislature has determined the reach of the workers’
compensation law. And under the system the Legislature
enacted, “[i]f industry does not contribute to the risk of the
accident resulting in injury, the workers’ compensation law does
not require industry to contribute to the cost of the injury.”
Sentry Ins., 69 So. 3d at 1071. Here, the employer did not
contribute to the risk that Valcourt-Williams would trip over her
dog. The workers’ compensation law therefore does not require
the employer to cover the cost of the injury.

    REVERSED.

B.L. THOMAS, C.J., and WOLF, LEWIS, ROBERTS, WETHERELL,
ROWE, RAY, OSTERHAUS, KELSEY, WINOKUR, and JAY, JJ., concur.

BILBREY, J., dissents in an opinion joined by MAKAR, J.

MAKAR, J., dissents in an opinion joined by BILBREY, J.

M.K. THOMAS, J., recused.




                                7
                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

BILBREY, J., dissenting.

     Today, a majority of this court reverses decades of precedent
regarding the compensability of workplace injuries under Florida
workers’ compensation law. In doing so, the court takes the
benefits of the workers’ compensation system from many workers
who would previously have been protected in the event of
workplace injuries. But the court also opens many employers
and co-employees to tort liability where previously the immunity
from liability provided by the “Grand Bargain” or “Great Trade
Off” of workers’ compensation applied. 1

     The majority proves today the maxim that bad facts make
bad law. At first glance, it may appear incontrovertible that
falling over one’s own dog in one’s own home is not compensable
under workers’ compensation. But distilled to the essential facts
Claimant, Tammitha Valcourt-Williams, was injured in a trip
and fall during work hours in her workplace (her house) when
she fell over personal property (her dog) while attending to her
personal comfort. The fact that Valcourt-Williams’s home was
also her workplace and her kitchen doubled as her workday
breakroom should do nothing to alter our consideration of her
claim. 2 Prior to today such a workplace injury from a neutral


    1  The history of workers compensation and the creation of
the “Great Trade Off” is discussed in Lloyd Harger, Workers’
Compensation, A Brief History, Florida Department of Financial
Services,      Division      of     Workers’      Compensation,
https://www.myfloridacfo.com/division/wc/infofaqs/history.htm
(last visited March 26, 2019).
    2 The United States Census Bureau reports that in 2016,
7,591,793 Americans worked at home for a paid employer.

                                8
risk not caused by the employee’s preexisting or idiopathic
condition was undoubtedly compensable. But rather than just
reverse the Judge of Compensation Claims (JCC) by finding
(incorrectly) the dog to be a personal risk, the majority has
attempted to change the previously settled law on “arising out of”
so that now “arising out of” means only injuries that are directly
caused by working rather than incident to employment. Given
that, except in the bluest of blue-collar jobs, the vast majority of
risks present in the workplace are constantly present throughout
society, the majority decision today represents a radical shift in
the law.

     I believe that in denying the Employer/Carrier’s motion for a
summary final order, the JCC was correct to rule for Valcourt-
Williams on the compensability issue. Applying established law,
the JCC determined that accident was compensable and awarded
benefits to Valcourt-Williams. Because the majority reverses,
and in doing so goes beyond what the E/C argued in overturning
decades of case law and essentially abrogating the long-settled
personal comfort doctrine, I respectfully, but strongly, dissent.

                     I. The Workplace Fall

     As the en banc majority notes, the material facts relevant to
this appeal are not in dispute. Valcourt-Williams was and at the
time of the final hearing remained employed by Sedgwick CMS
as a claims adjuster. On April 27, 2016, Valcourt-Williams
resided in Sierra Vista, Arizona, and worked from her residence
as a remote employee for Sedgwick under a telecommuting
agreement. Valcourt-Williams’s normal work hours were 4 a.m.
to 12:30 p.m., Pacific Time, which matched Sedgwick’s workday
in its Florida office — 7 a.m. to 3:30 p.m., Eastern Time.

     Valcourt-Williams took a mid-morning break from her work
at 7 a.m. local time to get a beverage. She went from her second-
floor home office downstairs to the kitchen where she retrieved a

https://factfinder.census.gov/faces/tableservices/jsf/pages/productv
iew.xhtml?pid=ACS_17_SPL_K200801&prodType=table                 (last
visited March 26, 2019).


                                 9
cup from the cupboard to make instant cappuccino. When she
turned around she tripped over her dog and fell. She landed on
her right knee and hip and was injured.

         II. The Claim for Workers’ Compensation

      Valcourt-Williams timely reported the fall and injury to
Sedgwick (the E/C), which then authorized her to receive
treatment at an emergency room. Less than two weeks after the
fall, however, the E/C denied compensability. Valcourt-Williams
retained counsel and filed a petition for benefits. In the response
to the petition, the E/C asserted that the “[a]ccident and/or injury
did not arise out of employment.”

     The E/C filed a motion for summary final order arguing the
material facts were not in dispute and that a dispositive
determination could be made as to whether the event was
compensable because it was undisputed that Valcourt-Williams’s
fall was caused by her personally-owned dog. The E/C’s motion
alleged that the dog was a risk that Valcourt-Williams imported
into the workplace, and these facts failed to establish a
compensable work-related accident occurred that arose out of
Valcourt-Williams’s employment. In response, Valcourt-Williams
argued that application of the personal comfort doctrine
warranted a finding that the accident was compensable.

     Following a hearing on the motion, the JCC agreed that the
relevant facts were not in dispute and that Valcourt-Williams
sustained a compensable workers’ compensation accident which
arose out of and in the course and scope of her employment. The
JCC found that the fall was accidental, that it occurred during
Valcourt-Williams’s normal working hours, and that it occurred
during a refreshment break. The JCC also found that the break
was not in violation of any company rule, it was not in violation
of any provision found in the telecommuting agreement (having
found that the agreement did not limit Valcourt-Williams’s
ability to have pets in her home), it was a reasonable break
necessary to meet Valcourt-Williams’s personal comfort needs,
and it was conducive to facilitate Valcourt-Williams’s
employment.



                                10
    In rejecting the E/C’s argument that the risk was a personal
one imported into the workplace by Valcourt-Williams the JCC
explained:

         It was a neutral risk as permitted under the Sentry
    Insurance Company [v. Hamlin, 69 So. 3d 1065 (Fla. 1st
    DCA 2011)] case analysis. I find the Employer imported
    the risk into the claimant’s home by authorizing and
    permitting a remote office to be established with
    reasonable expectations that comfort and refreshment
    breaks would be required during her eight hour work
    day. The Employer by virtue of the Telecommuting
    agreement imported the work environment into the
    claimant’s home and the Claimant’s home into the work
    environment.         The Employer’s       Telecommuting
    Agreement did not restrict the area where she could
    take breaks, where she could use the bathroom or what
    personal property she could keep in her home, including
    pets. . . . [T]he Employer had the right to inspect and
    obtain photographs of the Claimant’s work environment
    and never asked to do either. The Employer created to
    my mind what is tantamount to a satellite office for the
    Employer from which the Claimant was working and
    with it the risk of injury inside the home during normal
    working hours and conditions as long as the Claimant
    would be within the course and scope of her
    employment.

         I find that the claimant was required to get up early
    and work in order to accommodate the employer’s
    schedule in Lake Mary, Florida. Therefore she had to
    get up at 4:00 a.m. Pacific Standard time (an extremely
    early time for most people) in order to be at work for the
    employer in Florida at 7:00 a.m. It was reasonably
    foreseeable that the claimant would have to take
    comfort or refreshment breaks and the logical place with
    which she could do so was in her home kitchen and
    bathrooms. Such personal comfort activities provide a
    benefit to the employer and are reasonably incidental to
    the performance of her work activities. Therefore I find
    the accident indeed flowed from the employment as a

                               11
    natural consequence and that taking a break to get
    something to drink during normal working hours has a
    relationship to her work and is a necessary function of
    her being able to continue to work for 8 hours during the
    day. Bayfront Med. Ctr. v. Harding, 653 So. 2d 1140
    (Fla. 1st DCA 1995). I do not find as the E/SA argues
    that the Claimant imported the risk into the work place.
    I find the tripping over the dog would be no different
    than if she had slipped on a liquid substance on the
    floor, on a lose [sic] kitchen floor mat, or over her own
    two feet. I find the accident would be compensable.

     In the summary final order, the JCC reserved jurisdiction to
determine what injuries, if any, were related to the fall. A final
merits hearing then took place. The JCC found that when
Valcourt-Williams fell she sustained a traumatic loosening of
hardware which had previously been implanted in her right knee
— Valcourt-Williams having undergone bilateral knee
replacement surgeries in 2009. The JCC directed the E/C to
authorize ongoing treatment for Valcourt-Williams’s work-related
right knee injury as the nature of the injury and the process of
recovery may require. The E/C was also directed to pay Valcourt-
Williams temporary total disability benefits, along with penalties
and interest.

   III. JCC Was Correct in Determining a Neutral Risk

     I first address the E/C’s argument that the JCC erred in
finding that the accident arose out of Valcourt-Williams’s
employment because the risk of injury created by her dog was
entirely personal and had no cognizable relationship to her
employment. The en banc majority’s opinion discusses this
argument but in its ultimate holding goes well beyond what the
E/C argued. Because the relevant facts are undisputed, the issue
is a question of law, which is reviewed de novo. See Airey v. Wal-
Mart/Sedgwick, 24 So. 3d 1264 (Fla. 1st DCA 2009).

    Section 440.09(1), Florida Statutes (2016), states in part,
“The 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.” I begin with a recognition
                               12
that the analysis here should be unaltered by the fact that
Valcourt-Williams’s workplace was a non-traditional one. The
personal comfort doctrine is a long-standing acknowledgement
that, during a work day, an employee engaging in personal
comfort activities, such as a refreshment break, benefits the
employer so long as the activities are incidental to the
performance of work activities. As we stated in Harding, “a
worker’s attendance to personal comfort during a refreshment
break is conducive to the facilitation of the employment.” 653 So.
2d at 1142 (quoting Holly Hill Fruit Prods., Inc. v. Krider, 473 So.
2d 829, 830 (Fla. 1st DCA 1985)). A worker remains in the course
and scope of employment while attending to matters covered by
the personal comfort doctrine. Harding, 653 So. 2d at 1141-42.

     However, to satisfy the “arising out of work” requirement of
section 440.09(1), the personal comfort doctrine applies only
when there is a work-related or neutral risk. Southern Bell Tel.
& Tel. Co. v. McCook, 355 So. 2d 1166 (Fla. 1977) (approving the
personal comfort doctrine but holding that injury sustained by
claimant attending to personal comfort is not compensable if
workplace provided none of the risk and did not otherwise
contribute to injury). If there is a work-related or neutral risk,
then the injury is one “arising out of work.”

    We have discussed the three categories of risks causing
workplace injuries as follows:

    [R]isks distinctly associated with the employment, risks
    personal to the claimant, and “neutral” risks—that is,
    risks having no particular employment or personal
    character. Griffith v. Budget Rent-A-Car Systems, 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 within
    the third category (neutral risks) that most controversy
    in modern compensation law occurs. Id.

Hamlin, 69 So. 3d at 1069-70. Therefore, compensable personal
comfort cases must meet a three-part test, which we stated in
Hamlin as follows:
                                13
    (1) The activity has been a traditional or routine part of
    the work place experience (incidental to work);

    (2) The employee’s participation in activity of this type
    has been held to benefit the employer by producing a
    refreshed employee; and

    (3) The injury results from either a work created risk or
    a neutral risk.

Id. at 1072.

     Here, the E/C contends that the injury suffered was a result
of a personal risk. Yet, Valcourt-Williams’s injury passes all
three parts of the Hamlin test. First, her coffee break was an
activity that is a routine part of the workplace experience, and
the JCC found that she was on a work break as permitted by
Sedgwick. Second, Valcourt-Williams’s undertaking a break was
a benefit to Sedgwick. The JCC found “that taking a break to get
something to drink during normal working hours has a
relationship to her work and is a necessary function of her being
able to continue to work for 8 hours during the day.” Third, the
injury resulted from a neutral risk. The JCC found that tripping
over the dog was “no different than if she had slipped on a liquid
substance on the floor, on a lose [sic] kitchen floor mat, or over
her own two feet.” The JCC’s finding is consistent with decades
of our case law which holds a trip and fall in the workplace to be
compensable so long as it was not caused by a claimant’s
idiopathic or preexisting condition. 3 See Ross v. Charlotte Cty.
Pub. Sch., 100 So. 3d 781 (Fla. 1st DCA 2012) (fall due to foot
caught in linoleum flooring compensable); Walker v. Broadview
Assisted Living, 95 So. 3d 942 (Fla. 1st DCA 2012) (foot slip while
walking the hallway compensable); Caputo v. ABC Fine Wine &
Spirits, 93 So. 3d 1097 (Fla. 1st DCA 2012) (fall with resulting
head injury such that claimant did not know how the accident

    3 Hence workplace fainting, as mentioned by the en banc
majority, or any other idiopathic or preexisting condition
personal to a worker, does not arise out of employment and is
therefore not compensable.


                                14
occurred compensable); Lanham v. Dep’t. of Envtl. Prot., 868 So.
2d 561 (Fla. 1st DCA 2004) (trip and fall on a sidewalk a quarter
of mile from work while taking a walk on a paid break
compensable); Citrus Mem’l. Hosp. v. Cabrera, 388 So. 2d 345
(Fla. 1st DCA 1980) (slip and fall in the workplace restroom
compensable).

     It is essential to the analysis that Valcourt-Williams was no
more engaged with her dog when she tripped than she would
have been, for instance, with a briefcase, backpack, purse, gym
bag, or even her own shoes had she tripped over any of those
items instead — all of which are employee-owned property
commonly brought into the workplace. The JCC recognized as
much when he noted that had Valcourt-Williams been playing
with her dog, the injury would not have been compensable. 4 It is
foreseeable that an employee will bring or attempt to bring the
employee’s own personal property, not otherwise prohibited by
the employer, into the workplace and that the property or the
attempt to procure the property may create a neutral risk
resulting in a compensable injury. See Harding, 653 So. 2d at
1142 (injury from off-premises automobile accident on a break
during working hours while attempting to get food or cigarettes
compensable); Louis v. Louis’s Amoco, 534 So. 2d 417 (Fla. 1st
DCA 1988) (employee’s injuries from drinking contaminated soft
drink purchased from employer compensable); Krider, 473 So. 2d
at 830 (injury to claimant struck by automobile while walking
across road to purchase cigarettes on break during work hours
compensable); Baker v. Orange Cty. Bd. of Cty. Comm’rs, 399 So.
2d 400 (Fla. 1st DCA 1981) (injury from battery operated socks
claimant wore to ward off frostbite compensable).

    Other states have considered workplace falls over personal
property and found them to be compensable under workers’


    4 The risk here that is compensable is the neutral risk of a
workplace trip and fall. Had the Claimant been bitten by her
dog, the risk to be considered would have instead been the risk of
an attack by her dog — presumably a personal risk in most
workplaces.


                               15
compensation. In McBride v. Midwest Estate Buyers, LLC, No.
93A02-1612-EX-2920, 86 N.E.3d 452 (table), 2017 WL 2492774
(Ind. Ct. App. 2017), a jewelry store clerk tripped and fell when
the zippers on the inside of her boots hooked together. The court
in McBride discussed the same three categories of risks we
considered in Hamlin. McBride at *2. In McBride, there was no
pre-existing illness or condition involved, thus, the fall was not
caused by McBride’s personal risk. Id. Rather, the appellate
court reasoned, in reversing the compensation board’s denial of
compensability, that

     [a]lthough her choice of clothing and footwear is a
     personal choice and in this case was not dictated by
     company policy, an employee of a fine jewelry store
     would certainly be required to wear some form of
     footwear. Further, McBride testified she often dressed
     up and tried to look stylish for her work which involved
     meeting with customers. Therefore, we think McBride’s
     case falls within the third category, those risks neither
     distinctly employment related nor distinctly personal in
     character.

Id. at *3.

     In Sandberg v. JC Penney Co., 260 P. 3d 495 (Or. Ct. App.
2011), claimant was injured while working in her home when she
tripped over her dog while going to the garage to retrieve fabric
samples for work. The controversy, like our situation here,
focused on the requirement that the injury arise out of and occur
in the course of employment. The court noted that while
working, the claimant’s home environment became her work
environment. 260 P.3d at 500. Quoting Larson’s Workers’
Compensation Law, the court noted that “the hazards of home
premises encountered in connection with performance of the work
are also hazards of the employment.” Sandberg, 260 P.3d at 500
(quoting Arthur Larson and Lex K. Larson, 1 Larson’s Workers’
Compensation Law § 16.10 [4], 16-37 (2009)). The court also
noted that “although the employer may not have had control over
claimant’s dog, it had control over whether claimant worked
away from the studio.” Sandberg, 260 P.3d at 500. The court
concluded by analogizing that if “claimant tripped over a dog and

                                16
injured herself while meeting with a customer in the customer’s
home, her injury would arise out of her employment,” so injuring
herself by tripping over the dog while working at home as a
requirement of employment also arose out of work. Sandberg,
260 P.3d at 501.

     When neutral risks result in workplace injuries, the personal
comfort doctrine instructs that those injuries will be found
compensable because an employee attending to personal comfort
“is conducive to the facilitation of the employment.” Krider, 473
So. 2d at 830-31. Cf. Galaida v. AutoZone, Inc., 882 So. 2d 1111,
1113 (Fla. 1st DCA 2004) (explaining that “[b]eing exposed to a
firearm, however, is not a foreseeable consequence of an
authorized cigarette break, especially when the possession of a
firearm is strictly prohibited by the employer.             Moreover,
Galaida’s possession of a firearm, in violation of his employer’s
policy, was not conducive to the employer’s interests.”). 5




    5 As we stated in Galaida, “The personal comfort doctrine
incorporates a foreseeability element to the cause of injury.” Id.
at 1112. Given, Ross, Walker, Caputo, Lanham, and Cabrera,
among other cases, it is clearly foreseeable that an employee
would trip and fall in the workplace. If the foreseeability is
focused on dogs or other pets, as Judge Makar discusses in his
dissent, it is clearly foreseeable that an American household
would have a common house pet. Dissenting op. at 34 (Makar,
J.). The foreseeability of the presence of a dog here may have
changed had it been banned by Sedgwick, as the employer
banned the firearm in Galaida, but dogs were not prohibited by
Sedgwick.


                                 17
        IV. Majority Goes Beyond What E/C Sought

     In arguing that we should reverse the JCC, the E/C claimed
only that Valcourt-Williams’s risk of tripping over her dog was a
personal risk under the Hamlin framework. The E/C had
previously made the personal risk argument before the JCC. As
set forth above, I disagree with the E/C’s argument. But if the
court were to adopt the E/C’s contention and hold that the
presence of a dog was a personal risk akin to the firearm in
Galaida that would not cause a paradigm shift in Florida
workers’ compensation law. I respectfully submit that the en
banc majority has gone beyond what the E/C has sought, has
upended the long-standing personal comfort doctrine, and has
now defined “occupational causation” in “arising out of” to mean
only “directly caused by” engaging in the core functions of
employment. See § 440.02(36), Fla. Stat.

     Barring fundamental error, we can only reverse on what is
argued below. Davis v. State, 136 So. 3d 1169 (Fla. 2014);
Williams v. State, 213 So. 3d 1123 (Fla. 1st DCA 2017). Further,
we cannot reverse on a ground not argued on appeal. See I.R.C.
v. State, 968 So. 2d 583, 588 (Fla. 2d DCA 2007) (noting that to
reverse based on grounds not argued by the appellant would be
“at odds with the structure of the appellate process which
requires that a reviewing court ordinarily reverse only on the
basis of the specific arguments presented by the appellant”). As
the above quotation from the JCC’s decision shows, the issue he
considered was the nature of the risk under our Hamlin
framework. Neither before the JCC nor before our court did the
E/C argue that our “arising out of” jurisprudence was wrongly
decided and needed to be discarded en banc and en masse.

     Part of the problem with the en banc majority’s reasoning is
the majority opinion at times mixes “course and scope of
employment” with “arising out of.” The majority claims that to
hold for Valcourt-Williams, “we would have to hold that an
employee’s tripping over her own dog at home on a Friday is
attributable to risks of employment while the same employee’s
tripping over the same dog at the same home on a Saturday is
not.” Majority op. at 5. Yes, we would, and we should. But this
is a course and scope of employment consideration. If injured

                               18
during a break from work during the workday, under the
personal comfort doctrine the employee remains in the course and
scope of employment. Lanham, 868 So. 2d at 563. This is so
regardless of whether the injury occurs on or off the employer’s
premises. Id. If an employee is injured outside of the workday,
then barring various exceptions not applicable here, the employee
is not in the course and scope of employment, so the injury is not
compensable. See Fidelity & Cas. Co. of New York v. Moore, 196
So. 495, 496 (Fla. 1940) (holding that generally, “the injury must
occur within the period of the employment”).

     Of course, although not addressed by the majority, “arising
out of” and “course and scope” “are part of a single test, such that
the strength of one element may cure the weakness of the other.”
Grenon v. City of Palm Harbor Fire Dist., 634 So. 2d 697, 699
(Fla. 1st DCA 1994). “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.” Id. (citing Bituminous Cas. Corp v.
Richardson, 4 So. 2d 378 (Fla. 1941)).

     The majority opinion puts at risk many established doctrines
of Florida workers’ compensation by interpreting “occupational
causation” in “arising out of” to only mean directly performing
work. See § 440.02(36), Fla. Stat. We considered this exact issue
in upholding the “premises rule” in Vigliotti v. K-Mart Corp., 680
So. 2d 466 (Fla. 1st DCA 1996). The premises rule provides
workers’ compensation benefits to employees who are “off the
clock” and not actually engaged in work, but who are preparing
for or departing from work when injured on the employer
premises. In Vigliotti, we stated:

         We have considered carefully K-Mart’s contention
    that the phrase “work performed” must be construed to
    include only actual performance of primary job duties by
    an employee. As previously noted, this construction
    would broaden the potential tort liability for every
    employer in Florida. Moreover, this construction would
    contravene the legislative intent to ensure the prompt
    delivery of benefits to the injured worker by an efficient
    and self-executing system. § 440.015, Fla. Stat. Indeed,

                                19
    K-Mart’s construction would lead to expensive and time
    consuming judicial inquiry in a broad range of cases
    that are now undoubtedly handled administratively
    without the intervention of attorneys. Scenarios
    discussed in the briefs and at oral argument included a
    roofer injured while climbing down a ladder at the end
    of his shift and a clerical worker injured while taking a
    restroom break. Under K-Mart’s view, employers would
    be completely free to argue in such cases that work
    performed did not contribute to the injury, and hearings
    would then be required on this issue. Such a procedure
    would be neither efficient nor self-executing.

Vigliotti, 680 So. 2d at 467.

     The majority rationale also calls into question, without being
able to overturn, the “bunkhouse rule” approved by the Florida
Supreme Court. See Wilson Cypress Co. v. Miller, 26 So. 2d 441
(Fla. 1946). The bunkhouse rule instructs “that when the
contract of employment contemplates that the employee shall
sleep on the employer’s premises, as an incident to the
employment, and is injured while not engaged on a purely
personal mission, the injury is compensable.” Id. at 442. There
Miller was sleeping on his employer’s houseboat when killed in a
fire. Id. at 441. Clearly, Miller was not engaged in work at the
time, nonetheless the Florida Supreme Court found his death
compensable. Id. The majority rationale would also call into
question the “horseplay doctrine” which holds compensable those
injuries resulting from “an insubstantial deviation . . . which does
not necessitate the complete abandonment of the employment
and the concentration of all energies for a substantial part of the
working time.” Boyd v. Florida Mattress Factory, Inc., 128 So. 2d
881, 882 (Fla. 1961).

     Many of the cases cited by the majority in support of the
argument that Valcourt-Williams’s fall does not “arise out of”
work are in fact cases where the claimant’s idiopathic condition
caused the injury. See, e.g., Southern Bell Tel. & Tel. Co. v.
McCook, 355 So. 2d 1166 (Fla. 1977) (congenital abnormality in
lower back); Acker v. Charles R. Burklew Constr., 654 So. 2d 1211
(Fla. 1st DCA 1995) (preexisting degenerative arthritis);

                                20
Medeiros v. Residential Cmtys. of Am., 481 So. 2d 92 (Fla. 1st
DCA 1986) (dizziness from a prior non-work-related automobile
accident); Grenon (aggravation of preexisting back injury); Leon
Cty. Sch. Bd. v. Grimes, 548 So. 2d 205 (Fla. 1989) (fall caused by
leg brace worn due to polio). There was no argument here that
the fall was caused by Valcourt-Williams’s preexisting knee
surgeries. Even as to idiopathic falls, there is an exception not
applicable here under which injuries from falls are found to arise
out of employment if “the injuries from the fall can be attributed
to some increased hazard attendant to the job such as where the
fall is onto dangerous objects.” Foxworth v. Fla. Indus. Comm’n,
86 So. 2d 147, 151 (Fla. 1955); see also Duval Cty. Sch. Bd. v.
Golly, 867 So. 2d 491 (Fla. 1st DCA 2004).

     The majority incorrectly cites the exception applicable to
idiopathic conditions mentioned in Golly as if it was the rule.
Majority op. at 4. But in Walker we recognized that only if a
personal or idiopathic condition is involved is it necessary for
“claimants to establish that ‘the employment itself created the
hazard of the risk.’” 95 So. 3d at 943 (quoting Hernando Cty. v.
Dokoupil, 667 So. 2d 275, 276 (Fla. 1st DCA 1995)). 6 If an
idiopathic or preexisting injury is not involved, then 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 [that an idiopathic or preexisting
condition was involved] 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 risk of


    6  Furthermore, had the majority provided a complete
quotation from Metropolitan Dade County v. Russell, 637 So. 2d
69 (Fla. 1st 1994), this point would have been demonstrated.
Majority op. at 7. In Russell we said, “If the JCC finds that
Claimant has an idiopathic condition, then before the causal
connection can be found and the work injury deemed
compensable, the JCC specifically must find also that Claimant
demonstrated that the injury resulted from an effort, exertion,
risk, or strain beyond that which is normally encountered in
Claimant’s non-employment life.” Id. at 70 (emphasis added).


                                21
injury greater than the employee would normally encounter in
non-employment life.” Bryant v. David Lawrence Mental Health
Ctr., 672 So. 2d 629, 631 (Fla. 1st DCA 1996). The majority
opinion discards this well-stated holding from Bryant.

     In Ross, we wisely rejected a JCC’s conclusion that “because
Claimant could not establish an increased risk of harm associated
with her employment . . . Claimant could not establish that the
injury arose out of employment because the accident could have
happened elsewhere.” 100 So. 3d at 782. We held that such a
conclusion would implicate section 440.10(2), Florida Statutes,
which provides that, absent narrow exceptions, “[c]ompensation
shall be payable irrespective of fault as a cause for the injury.”
Again citing Walker, we stated, “Thus, in the absence of any
medical evidence to establish the existence of a pre-existing
condition, it was not necessary for Claimant to show an increased
risk of harm associated with her employment in order to
establish the causal connection between her employment and her
accident.” Ross, 100 So. 3d at 782-83.

     The majority also discredits the personal comfort doctrine
without being able to explicitly overrule it since the doctrine was
approved by the Florida Supreme Court in McCook. There the
Court stated, “The fact that McCook was attending to a personal
matter at the time of the accident is irrelevant, since it was
incidental to employment and therefore a matter within the
‘personal comfort doctrine.’” 355 So. 2d at 1168, n.2 (citing 1 A.
Larson, The Law of Workmen’s Compensation s. 12.00 (1972)).
The approval of the personal comfort doctrine under Florida law
seems to be rooted in the Florida Supreme Court’s recognition
that an employee is in the course and scope of employment if the
employee is “reasonably fulfilling the duties of this employment
or engaged in doing something incidental to it.” Fidelity &
Cas. Co. of New York v. Moore, 196 So. 495, 496 (Fla. 1940)
(emphasis added).       The majority’s narrow definition of
occupational causation is contrary to the Florida Supreme Court
approving coverage for injuries arising from incidental causes.

   Many of the injuries which we have previously found
compensable could have just as easily occurred outside of work.
Under the majority’s rationale these injuries would not be

                                22
compensable, contrary to our holdings in Caputo, Walker, and
Ross, because the risk does not flow only from employment.
Majority op. at 6-7. Since most employees walk, whether on or off
the job, under the majority’s view no workplace slip and fall
would be compensable. Since all humans must eat, drink, and
excrete, whether on the job or off, any break from an employee’s
occupation for personal comfort would not be compensable. In
fact, in most occupations, many of the functions of daily work life
are also performed outside of the workplace. Office workers
complete paperwork at home. Restaurant workers cook and
serve food at home. Childcare workers care for children at home.
Even many blue-collar workers perform similar work at home —
autoworkers fix their own cars, custodians clean their own
homes, shop workers engage in their trade as hobbyist or
volunteers. By limiting compensability of a workplace injury to
only those injuries which narrowly flow directly from the
employment, the majority has overturned (or at least attempted
to overturn) over forty years of case law, disregarded the settled
definition of “arising out of,” and severely limited the benefits of
workers’ compensation.

     Uncertainty has undoubtedly been injected into the workers’
compensation system by the majority’s holding. Are the personal
comfort and other long-established doctrines of workers’
compensation law extant or extinct after today? I think these
doctrines survive since they spring from the Florida Supreme
Court; but how should the majority’s narrow interpretation of
occupational causation be seen by a claimant, employer, claim’s
adjuster, attorney, or JCC? Markets crave certainty, and the
Florida workers’ compensation system is a huge market. 7 By the



    7   “In 2017, 242 privately-owned insurers actively wrote
workers’ compensation insurance in Florida. In total, private
sector insurers wrote $3,183,302,670 in premium.” 2018 Workers’
Compensation Annual Report, Florida Office of Insurance
Regulation,
https://www.floir.com/siteDocuments/2018WorkersCompensation
AnnualReport.pdf (last visited March 26, 2019).


                                23
majority’s opinion we have injected substantial uncertainty in the
multibillion-dollar Florida workers’ compensation marketplace.

   V. Potential Impact of Loss of Exclusivity of Remedy

     The Grand Bargain of workers’ compensation provides a
great benefit to employers and co-employees in mandating the
statutory benefits provided by workers’ compensation as the
exclusive benefits an employee can receive for accidental injury
from a covered employer. See § 440.11, Fla. Stat. But for
workers’ compensation protection, exclusivity of remedy would
not be present, and an employee could sue the employer and co-
employees for negligence. See Fidelity & Ca. Co. of N.Y. v.
Bedingfield, 60 So. 2d 489 (Fla. 1952).

     By disclaiming workers’ compensation coverage (or more
likely its workers’ compensation carrier disclaiming coverage),
the employer may be opening itself and its employees to tort
liability. In Schroeder v. Peoplease Corp., 18 So. 3d 1165 (Fla. 1st
DCA 2009), this court determined that a genuine issue of
material fact existed as to whether the employer’s notice of denial
of workers’ compensation benefits precluded the employer from
asserting an immunity defense. “Whether estoppel is appropriate
in this case and whether the employer took irreconcilable
positions is dependent upon the meaning to be accorded the
notice of denial.” Id. at 1170. More recently, the Third District
affirmed the trial court’s denial of a motion for summary
judgment based upon the defense of workers’ compensation
immunity where the carrier denied benefits on grounds that the
employees’ injuries were not the result of an accident in the
course and scope of their employment. Ocean Reef Club, Inc. v.
Wilczewski, 99 So. 3d 1 (Fla. 3d DCA 2012).

     The Fifth District agrees. In Byerley v. Citrus Publishing,
Inc., 725 So. 2d 1230 (Fla. 5th DCA 1999), the court concluded:

         Thus, to permit an employer to deny benefits then
    later assert immunity because the employee is entitled
    to benefits would be to render this statutory provision [§
    440.11, Fla. Stat.] meaningless. In this case, the notice
    of denial stated that Byerley’s injury was not covered

                                24
    because it did not occur in the course and scope of her
    employment, Byerley accepted and relied on the denial,
    bore her medical expenses, then sued the employer in
    tort as permitted by the statute. Here, the elements of
    estoppel are shown, and therefore, the employer is not
    entitled to summary judgment on the basis of the
    Workers’ Compensation Act.

Id. at 1232-33; see also Gil v. Tenet Healthsystem N. Shore, Inc.,
204 So. 3d 125 (Fla. 4th DCA 2016).

     Here, even though Valcourt-Williams would likely not have a
tort cause of action, if we eliminate compensability for workplace
slip and falls — injuries incidental but not directly caused by
employment — other employees who suffer workplace injuries
which are no longer compensable would likely be able to sue.
Clever attorneys could bring civil actions against employers for
workplace falls caused by tripping over another’s property, failing
to provide safe footwear, failing to have non-skid flooring, failing
to inspect, failing to maintain the premises, and the myriad of
other grounds asserted for premises liability.

     Additionally, eliminating compensability for workplace slip
and falls opens the possibility of an injured worker suing fellow
employees. Those fellow employees are currently immune from
suit for negligence under section 440.11(1), Florida Statutes. If
exclusivity does not apply, it is easy to imagine a cause of action
arising out of a fellow employee’s spilt beverages, bags or other
obstacles left on the floor, a foot sticking out from behind a desk,
or accidental jostling. In absence of workers’ compensation
exclusivity, one could see many situations where a fellow
employee risks tort liability for automobile accidents. See, e.g.
Abraham v. Dzafic, 666 So. 2d 232, 233 (Fla. 2d DCA 1995)
(finding a co-worker was immunized from suit for automobile
negligence where both co-workers were traveling from a jobsite
“to the same hotel for rest and relaxation”). 8


    8 Furthermore, bring your child to work days and bring your
pet to work days would seem to be especially fraught with the

                                25
     Today the majority opinion potentially eliminates the many
benefits of workers’ compensation and substitutes the
uncertainty of tort claims. 9 We wisely chose not to take that
action 23 years ago in Vigliotti when confronting what was then a
new statutory definition of “arising out of,” and nothing has
changed since. In Vigliotti, we expressed concern that to
construe “arising out of” as the majority does today “would result
in claimants . . . bringing suit in tort against their employers for
injuries they have suffered during work hours, while they are on
the employers’ premises, but when they are not literally
performing work.” 680 So. 2d at 487. Today the majority charts
a course towards uncertainty and away from the Legislative
intent “to assure the quick and efficient delivery of disability and
medical benefits to an injured worker and to facilitate the
worker’s return to gainful reemployment at a reasonable cost to
the employer.” § 440.015, Fla. Stat. (2016).

                           VI. Conclusion

     Because the risk Valcourt-Williams encountered when she
was attending to her personal comfort on her refreshment break
was a neutral risk of a workplace trip and fall, she met her
burden to prove that her accident arose out of and in the course
and scope of her employment and was therefore compensable.
Because the majority reverses and goes far beyond what the E/C
sought in overturning or otherwise questioning many established
workers’ compensation cases, and in doing so opens employers
and co-employees to tort liability, I respectfully, but strongly,
dissent.


possibility of co-employee lawsuits under the majority’s change to
the meaning of “arising out of.”
    9 Undoubtedly some injured workers would be happy for the
substitution. The potential damages for tort claims include non-
economic damages such as pain and suffering, emotional distress,
and loss of consortium which are not present as Florida workers’
compensation benefits.


                                26
MAKAR, J., dissenting.

     I join Judge Bilbrey’s opinion, which explains why
jurisprudential change is unwarranted in this “trip-and-fall-
during-a-personal-comfort-break” case, which ought to be
affirmed based on the thorough factual findings and thoughtful
legal analysis in the JCC’s final summary order (see Appendix). A
few points merit mention.

     To begin, the only issue in this workers’ compensation case is
whether the workplace accident that occurred during an
authorized comfort break arising from an authorized work-at-
home arrangement is compensable. As fate would have it, the
employer is a workers’ compensation claims processing company,
Sedgwick Claims Management Services, Inc. (“Sedgwick”), and
the employee, Tammitha Valcourt-Williams (“V-W”), is an
experienced workers’ compensation account claims adjuster.
Sedgwick and V-W entered a Telecommuting/Remote Work
Agreement for V-W to continue working for the company from her
new home in Arizona, from 4:00am-12:30pm PST, to match the
normal workday hours in Sedgwick’s home office in Lake Mary,
Florida, where she’d been working. In Arizona, V-W worked from
one of her townhome’s upstairs bedrooms, which she dedicated
entirely to her work for Sedgwick, and furnished with a desk,
chair and other office equipment at her own expense; Sedgwick
provided the computer.

    On April 27, 2016, V-W took a mid-morning break, walked
downstairs to her kitchen, and tripped and fell while making
an instant cappuccino. 1 No dispute exists that Sedgwick
permitted its employees to take personal comfort breaks, that V-
W was on an authorized personal comfort break in a location in
her home where a break was allowable (her kitchen), and that


    1  During the pendency of her workers’ compensation claim,
V-W emailed her fact pattern (without identifying it was her
situation) to defense counsel that the carrier had used in the past
who opined that it was compensable (“Unfortunately, this
appears to be a compensable claim, based on these facts.”).


                                27
she was engaging in a permissible activity (making a beverage)
when the trip and fall occurred. An accidental slip and fall under
such workaday circumstances is generally compensable—whether
it occurred in Sedgwick’s Lake Mary home office or in V-W’s
home office—under the personal comfort rule. Sentry Ins. Co. v.
Hamlin, 69 So. 3d 1065, 1072 (Fla. 1st DCA 2011) (“The courts
have consistently awarded benefits to accidental injuries suffered
while an employee is engaging in personal comfort activities,
based on the rationale that such activities provide a benefit to the
employer and are reasonably incidental to the performance of
work activities.”). As this Court held in Hamlin, an employee who
engages in acts of “personal comfort such as eating a snack,
smoking, or taking a restroom break” engages in “an activity that
the law deems as incidental to work” and thereby arising from
the work itself. Id. For example, injuries to a worker who is hit by
a car while walking across the street to a convenience store are
compensable because an “off-premises trip . . . motivated by a
desire to purchase cigarettes . . . was a foreseeable and non-
prohibited refreshment break activity.” Holly Hill Fruit Prods.,
Inc. v. Krider, 473 So. 2d 829, 830 (Fla. 1st DCA 1985); cf.
Hamlin, 69 So. 3d at 1072 (worker who was injured by a tow
truck attempting to repossess his car from the employer’s parking
lot, was deemed to not be on a personal comfort break and
thereby denied coverage).

     Given this background, the question of “exceptional
importance” in this en banc hearing involving the personal
comfort rule is whether V-W tripping over her Shih Tzu—versus
her handbag, a kitchen chair, an open cabinet drawer, a
newspaper, spilled coffee/milk, a space heater, a rug/floor mat, a
doorsill, a Roomba,® untied shoelaces, a power cord/computer
cable, a banana peel, a recycling bin, a pet water bowl, her son’s
schoolbooks or spattered oil from her husband cooking breakfast, 2
a loose floorboard or uneven tile, a trash can or bag, or her own
feet while reading an email on her cellphone—renders her claim

    2 V-W lives with her husband (a professional cook) and a 14-
year old son along with a 50-pound Husky, a 22-pound Shih Tzu,
and a cockatoo.


                                28
per se non-compensable. See Fla. R. App. P. 9.331(a) & (c) (2019)
(“En banc hearings and hearing” impermissible “unless the case
or issue is of exceptional importance”) (“A hearing en banc may
be ordered only by a district court of appeal on its own motion.”);
IOP 6.4 (2019).

     To resolve this case, the key factual inquiry is whether
Sedgwick prohibited dogs in the home work environment and, if
not, was it foreseeable that an accident of this type might arise in
a personal comfort break. In this regard, it has been noted that
“[e]very ‘personal comfort’ case accepted as compensable by [this
Court] has met three prongs:

      (1)   The activity has been a traditional or routine
            part of the work place experience (incidental to
            work);
      (2)   The employee's participation in activity of this
            type has been held to benefit the employer by
            producing a refreshed employee; and
      (3)   The injury results from either a work created
            risk or a neutral risk.

Hamlin, 69 So. 3d at 1072. Because the first two prongs are met
in this case, the remaining issue is whether the record evidence
establishes that the trip and fall was due to a work-related or
neutral risk. Id. (“The personal comfort rule only applies when
there is either a work-related, or neutral risk.”). Work-related
risks are those directly associated with the work performed, such
as risks of injury from dangerous or malfunctioning machines,
risks of increased occupational diseases, and the like. Neutral
risks are neither entirely work-related nor directly related to an
employee’s personal idiopathic health deficiencies; they are risks
common to employees, such as motor vehicle accidents, slips on
wet surfaces, falls on stairs, and so on.

    Trips, slips, and falls are consistently among the top two-
three causes of workplace injuries and workers compensation




                                29
costs. 3 They are inherent in the workplace, whether it is a
company’s home office, a field office, a work-at-home office, or an
off-premises location where a non-prohibited refreshment break
occurs. The neutral risk of a fall exists in each of these locales
during a personal comfort break and is thereby work-related. Not
every injury that occurs during a personal comfort break is
compensable, of course, but slip and falls typically are because of
the control that employers have over the time, place, and manner
of work breaks; the neutral nature of slips and falls; and the
foreseeability test that weeds out implausible or questionable
scenarios. See Galaida v. Autozone, Inc., 882 So. 2d 1111, 1113
(Fla. 1st DCA 2004) (employee who brought a gun onto
employer’s premises and accidentally shot himself during a
cigarette break was not a “foreseeable consequence” to which
compensability applies under personal comfort rule). It is
expected that persons who are allowed to work from their homes
will take periodic breaks and may suffer compensable injuries
from falls arising from a range of causes. The exceptions to
compensability in these situations are where (a) an employee has
a personal idiopathic health condition or some other disqualifying
pre-existing personal factor that caused her injury, Medeiros v.
Residential Communities of Am., 481 So. 2d 92, 93 (Fla. 1st DCA
1986) (“When a claimant suffers from an idiopathic, or pre-
existing, condition which results in injury, the injury is
compensable only if the claimant can show that it ‘arose out of’
his employment.”); (b) the risk is one the employer controls and
has prohibited, Galaida, 882 So. 2d at 1112-13 (Fla. 1st DCA
2004) (noting that to cross the street to purchase cigarettes was a
“non-prohibited refreshment break,” but that firearm causing
injury was “strictly prohibited”); or (c) the risk encountered
during the break is unforeseeable, Id. at 1112 (“The personal
comfort doctrine incorporates a foreseeability element to the

   3 See National Safety Council, Injury Facts, Top Work-Related
Causes, https://injuryfacts.nsc.org/work/work-overview/top-work-
related-injury-causes/ (last visited March 26, 2019); National
Safety Council, Injury Facts, Workers’ Compensation Costs,
https://injuryfacts.nsc.org/work/costs/workers-compensation-
costs/ (last visited March 26, 2019).


                                30
cause of injury.”). Only the latter two factors—foreseeability and
employer control—are at issue in this case.

     Let’s first look at employer control of the home work
environment. Sedgwick’s pro forma telecommuting agreement,
which says the company “considers telecommuting to be an
appropriate work arrangement,” is slightly over three-pages,
single-spaced and addresses seven topics: the scope of the
agreement, the terms and termination of the agreement,
performance expectations, travel, work environment, equipment
and supplies, liability and miscellaneous matters. It makes clear
that telecommuting “is not an entitlement,” is “permitted in
[Sedgwick’s] sole discretion,” and embodies Sedgwick’s authority
to control the nature of the arrangement and the work-at-home
environment.

     The agreement, however, says very little about the work-at-
home environment other than that the employee “must establish
an appropriate work environment free from distractions within
his or her home. A professional business environment must be
maintained that includes, but is not limited to, the elimination of
background noise” and must not be “a replacement for dependent
care.” The “home office” itself “must be clean and free from
obstructions” and the “work station” is to be “designed for safe,
comfortable work.” Photos of the “work station” might be required
“for approval” by Sedgwick (who “has the right to monitor
activity” on all its equipment and communications systems).

     The agreement was silent on all other aspects of the home
office and its environment, including standards or guidelines for
bathrooms,       kitchens     and     other    places      where
refreshment/personal comfort breaks would occur within the
home.

     Sedgwick, despite its full control over the terms of the
telecommuting agreement and the conditions of the work-at-
home environment, asserts that it does not have such power;
instead, it asserts that it is V-W who has “sole control” over the
situation. Sedgwick characterizes this case as one in which the
JCC “declared a personal, uncontrollable, unforeseeable risk” as a
work-related risk. (Emphasis added). But that’s simply not the

                                31
case. Sedgwick had the authority to prohibit all pets, including
dogs, from the work environment but did not do so. At best, its
corporate representative testified in deposition only that pets
were not permitted in the Lake Mary, Florida, office, leaving
unanswered how Sedgwick handles its telecommuting
arrangements with each of its work-at-home employees.
Sedgwick points to the “free from obstruction” language in its
agreement, but that only applies to the “home office” (which is
not where V-W fell); Sedgwick also presented no definition or
interpretation of this term and how an employee would
understand that it included a dog. More importantly,
compensable workplace accidents occur even where a fall is over
an    “obstruction”—an    employer      cannot     eliminate    the
compensability of all workplace trips/falls simply by pointing to a
policy that workspaces must be free of “obstructions.”

     Because this case was decided on a final summary order,
Sedgwick has accepted the JCC’s factual findings without
challenge; Sedgwick only contests the legal conclusion of
compensability. The JCC found:

   • Sedgwick “had the right to inspect [V-W’s] work
     premises and review her work situation for safety and to
     make sure that she had a comfortable working situation.
   • Sedgwick “never did inspect or view her home office set-
     up either in person or by video or photographs.”
   • “The Telecommuting Agreement did not limit the
     personal property that the Claimant could have in her
     home. The agreement notably required the office space to
     be free from hazard. Yet there is no evidence of hazard in
     the office space to suggest that the claimant was non-
     compliant with the agreement.”
   • V-W says “she owned dogs when she worked” in the
     Lake Mary office,” but “whether this is true or not, the
     Telecommuting Agreement does not limit the Claimant's
     ability to own and possess pets in her home office.”

These factual findings, among others in the order (see Appendix),
buttress the conclusion that Sedgwick had control over the home
environment (which it did not exercise) and that Sedgwick failed
to prove that V-W was prohibited from having her personal
                                32
property, including her Shih Tzu, in her kitchen where the
refreshment break occurred. In essence, V-W’s home environment
was her work environment, and Sedgwick had the authority to
control and impose restrictions as to the risk at issue despite its
failure to do so. Sandberg v. JC Penney Co. Inc., 260 P.3d 495,
500 (Or. Ct. App. 2011) (holding employer’s claim that it lacked
control over the risk of a dog in a work-at-home studio “is
unwarranted because, although the employer may not have had
control over claimant's dog, it had control over whether claimant
worked away from the studio.”). The ordinary hazards in an
employee’s home office, kitchen or bathroom that are encountered
in connection with a work-related activity, such as a refreshment
break, are hazards of the employment unless excluded by the
employer; here,       they    were    not, thereby      supporting
compensability. Moreover, no evidence suggests that V-W
“imported” a purely personal risk into the workplace, such as an
idiopathic condition; see Leon County Sch. Bd. v. Grimes, 548 So.
2d 205 (Fla. 1989) (claimaint’s fall, which resulted solely from
pre-existing personal medical condition, was not compensable);
instead, Sedgwick authorized the work-at-home arrangement and
did not exclude a common houseful feature, a dog, from its
telecommuting agreement and must bear the foreseeable
consequences.

     Next, let’s turn to foreseeability. Was it foreseeable that V-W
might fall in the way she did, i.e., over her Shih Tzu, during a
refreshment break? V-W says that Sedgwick knew she had dogs
in her home because “her dogs [were] a topic of conversation”
when she worked in Sedgwick’s Lake Mary office. She argued
that “it is foreseeable that a person who is allowed to work from
their home will take periodic breaks and may suffer injuries from
falls regardless of the cause of the fall. Had she fallen on a piece
of ice that had melted or a plumbing leak or some foreign object
that was on the floor, this would still be a compensable accident.”

    The JCC found that Sedgwick’s telecommuting agreement
did not preclude pets in the home work environment, which
makes a trip over a pet an obvious possibility. It’s no different
than if Sedgwick permitted dogs in its own workplace, for
example, by allowing comfort/therapy dogs, by providing ADA
accommodations with service dogs (something many employers—

                                33
including courts—have done) or by affirmatively embracing the
dog-at-work experience (as many companies have done, including
major ones like Amazon, Google, and Ticketmaster). See Brittany
Shoot, 10 Pet-Friendly Companies Where It's Always Take
Your Dog to Work Day, F ORTUNE (June 22, 2018),
http://fortune.com/2018/06/22/take-your-dog-to-work-day-pet-
friendly-companies/ (noting that “Take Your Dog to Work Day®”
is the Friday after Father’s Day). And the prevalence of pets in
the home is substantial and increasing: A 2017-2018 industry
survey found that 68% of U.S. households have pets, up from 56%
in 1988. See Pet Industry Market Size & Ownership Statistics,
AMERICAN PET PRODUCTS ASSOCIATION,
https://www.americanpetproducts.org/press_industrytrends.asp
(last visited Mar. 25, 2019). Of the 84.6 million homes having
pets, 60.2 million had dogs, which is roughly 48% of all
households. Id. Cats came in second at 38%. Id. A prior survey in
2012 found that the percent of households owning dogs was
36.5%, comprising 69.9 million dogs in 43.3 million homes. See
U.S. Pet Ownership Statistics, AMERICAN VETERINARY MEDICAL
ASSOCIATION,                https://www.avma.org/KB/Resources/-
Statistics/Pages/Market-research-statistics-US-pet-
ownership.aspx (last visited March 21, 2019). Cats, again, were a
close second at 30.4%. Id. These data make clear that employers
should reasonably foresee that employees have dogs and other
pets in their homes with their attendant benefits and risks.

     By casting dog ownership as a purely and exclusively
personal risk that doesn’t “arise out of” employment as a matter
of law, the Court thereby categorically prohibits coverage for
workplace accidents even where an employer affirmatively allows
pets in the workplace. As a result, accidents that occur in
workplaces with pet-friendly policies are not covered under
Chapter 440 and the injured party’s remedy is a personal injury
lawsuit against the company, the dog owner, and perhaps others
involved, which thwarts the point of the workers’ compensation
system. See generally Taylor v. Sch. Bd. of Brevard County, 888
So. 2d 1, 5 (Fla. 2004) (“In the ordinary case, when we are faced
with a situation where an employee is injured on the job there
exists a natural inference that the injury is covered by the
Legislature's workers' compensation scheme. That is the
fundamental purpose of the law, to provide benefits for work

                               34
place injuries in place of common law remedies.”). Alternatively,
employers with pet-friendly policies will have to enter
indemnification agreements for workplace accidents or obtain
supplemental insurance coverage, both options raising costs and
stifling the modern trend that sees multiple benefits for canine-
friendly workplaces (such as decreased stress levels, promoting a
friendlier/relaxed atmosphere, attracting top young millennial
talent, and so on). Not every business wants or can be pet-
friendly (due to allergies, unsuitability of some workplaces for
pets, and like issues), but judicially imposing a per se rule that
“dogs = personal risk = no coverage” unnecessarily dampens
workplace innovation and managerial creativity with no upside.

      Finally, as Judge Bilbrey points out, this is a “course and
scope” case, not an “arising out of employment” case. That’s
because the personal comfort doctrine, by its very nature, arises
solely out of the need for employers to make allowance for
authorized breaks to tend to personal needs during the workday;
it is an exclusively work-related doctrine because it exists solely
to facilitate the employer-employee relationship during work
hours. It is casually connected to and originates solely from
employment. Why else would a personal comfort break of short
duration be authorized other than to facilitate the employment
relationship during the workday? One doesn’t take a personal
comfort break unless one is at work (which explains why V-W
tripping over her dog on a Saturday/Sunday wouldn’t be
compensable). And wouldn’t it be an oddity to exclude all
personal risks from coverage for personal comfort breaks? Most
items over which V-W might trip and fall in her kitchen or office
could be dubbed as “personal” because she owns them and uses
them for her personal benefit (chair, rug, etc.), but that doesn’t
provide a limiting principle for denying coverage. Instead, the
better approach is the existing one in personal comfort cases,
which limits “personal risk” to the defined category of pre-
existing idiopathic conditions and focuses on the factual findings
of each case to make an assessment as to whether the risk is a
“neutral” one the employer allowed/prohibited and the
foreseeability of the risk.

    All this said, given that Sedgwick did not limit pets in V-W’s
work-at-home agreement, made no effort to control risks in the

                                35
kitchen or other areas where home comfort breaks might occur,
and knew or should have known that V-W had pets at home, the
foreseeability of a slip and fall over a dog is clear, particularly in
light of the data on the extent of home pet ownership and the
growing trend of allowing dogs in the workplace. As the Supreme
Court said fifty years ago, the “statutory phrase ‘arising out of
and in the course of employment,’ which appears in most
workmen's compensation laws, is deceptively simple and
litigiously prolific.” Cardillo v. Liberty Mut. Ins. Co., 330 U.S.
469, 479 (1947). This dog-at-work litigation proves this timeworn
point. Q.E.D.

                            APPENDIX

                            OVERVIEW

      Ms. Valcourt-Williams, a 53 year old account claims
adjuster, sustained injuries from a trip and fall accident on
April 27, 2016 that she maintains occurred within the
course and scope of her employment with Sedgwick Claims
Management Services. The accident occurred at her home in
Sierra Vista, Arizona while she was employed as a remote
employee for the company under a telecommuting remote
employment agreement. The E/SA contends that under the
Telecommuting Agreement entered into between the
parties, and given the undisputed details of Ms. Valcourt-
Williams fall and any alleged injuries, the accident is not
compensable as a matter of law.

                               ***

      In regard to the issue on the merits of the Motion for
Summary Final Order, the Claimant maintains she
complied with the terms of the Telecommuting Agreement
and that the accident arose out of and occurred within the
course and scope of employment consistent with the case law
governing the personal comfort doctrine. The E/SA submits
that the accident did not arise out of employment and as
such its compensability should be denied. Given the
undisputed facts in this case and for the reasons stated
below I find the claimant's accident of April 27, 2016 is

                                 36
compensable and that the Claimant's accident arose out of
and in the course and scope of her employment.

      Claimant was hired by the Employer in 2011 and she
worked in the Lake Mary office of the Employer until
December of 2014 when she and the Employer entered into a
Telecommuting/Remote Work Agreement (hereinafter
referred to as Telecommuting Agreement). This agreement
provided that the Claimant would create a work
environment in her home for the employer. I find her home
became her office during her regular working hours which
were from 7am-3pm Lake Mary, Florida time.

      Pursuant to the Telecommuting Agreement, Claimant
converted a room in her town- home to an office specifically
designated for her adjusting work with Sedgwick. As part of
her employment, she was required to work specific hours
and was allowed to take periodic breaks just as though she
was working in the Sedgwick office in Lake Mary, Florida.
She was required to be working from 7am to 3pm Lake
Mary, Florida time. Her designated work location was from
her home in Sierra Vista, Arizona. She was required to set
up specific equipment, some of which was provided by the
Employer, in her home and convert some space in her home
to accommodate the office set up required by the Employer.
Under the Telecommuting Agreement, the Employer had the
right to inspect her work premises and review her work
situation for safety and to make sure that she had a
comfortable working situation. The Employer never did
inspect or view her home office set-up either in person or by
video or photographs. The Telecommuting Agreement did
not limit the personal property that the Claimant could have
in her home. The agreement notably required the office
space to be free from hazard. Yet there is no evidence of
hazard in the office space to suggest that the claimant was
non-compliant with the agreement.

      The facts are not in dispute. Claimant suffered and
accident during the course of her employment when she had
taken a mid-morning break to get a cup of coffee. She uses a
bedroom on the second floor of her two-story townhome as

                             37
her dedicated home office. On April 27, 2016 at 7:00 a.m.
Pacific Standard time (10:00 Eastern) she suffered her
accident. According to her un-contradicted testimony the
Claimant begins work at 4:00 a.m. Pacific Standard time in
order to work for her employer for its Florida hours of 7:00
a.m. until 3:30 p.m. Her accident occurred when she left her
upstairs office and went downstairs to go into the kitchen.
She retrieved a cup from the cupboard to make some instant
cappuccino and when she turned around she tripped over
her dog and fell landing on her right knee and hip
sustaining according to her, injuries. As to the extent there
may be justiciable controversy as to whether an injury
occurred, such matter is not a proper subject for a motion for
summary final order and will ultimately be decided from
consideration of the totality of the evidence produced and
received at the final hearing.

      The accident was reported to her employer immediately
after she completed making her coffee and returned upstairs
to her home office. The parties acknowledge that the accident
occurred during the time period the claimant was to work for
the employer. Claimant represents that she owned dogs when
she worked for the Employer in the Lake Mary office from
2011 through 2014. Regardless of whether this is true or not,
the Telecommuting Agreement does not limit the Claimant's
ability to own and possess pets in her home office.

       I find the Claimant's April 27, 2016 accident arises out
of her employment and is therefore compensable. I find the
fall, which was accidental, occurred during her normal work
hours and at the time that it did as a result of her
refreshment break from work for the employer. I find the
comfort break was reasonable and to be anticipated and
foreseeable by the Employer. The claimant was not in an
area that she was forbidden to be and was in the kitchen of
her home which would be similar to the break room at an
office. The fact that the claimant was allowed to operate out
of her home, I find that it was reasonably foreseeable to the
employer that the Claimant would take periodic breaks for
her comfort to attend to personal needs including coffee
breaks and bathroom breaks. I further find that the

                              38
claimant attending to a reasonable personal comfort needs is
conducive to the facilitation of the employment. Thus I find
from the evidence presented no deviation from employment
and no temporary abandonment of the job can be reasonably
inferred. I find that her comfort break was not in violation of
any company rule or was shown in the Telecommuting
Agreement to be prohibited. Available use of her kitchen and
bathroom would be necessary to meet her personal comfort
needs.

      I do not find that at the time of her accident the
claimant was on a purely personal mission having no
relationship from work nor do I find that the Claimant took
any affirmative action that took her out of her normal work
and into a purely personal situation. The facts in this case
in my opinion are clearly distinguishable from the facts in
Sentry Insurance Company v.Hamlin, 69 So.3d 1065 (Fla. 1st
DCA 2011). In Sentry, the worker was not pursuing personal
comfort but rather was on a purely personal mission of
attempting to recover personal items from his vehicle that
was being repossessed and being towed away at the time of
his injury. None of the items he was trying to retrieve were
related to work and he took the affirmative action by going
into his repossessed vehicle while it was being towed away.
It was by those personal efforts that the workers' injury was
caused. He was performing an activity clearly of no benefit
to the employer whatsoever. The claimant here was
obtaining refreshment and nourishment to continue in her
work for the employer.

      The E/SA argues that the accident was not a work
created risk. But this tribunal rejects this argument as
clearly the Claimant was in the course and scope of her
employment at a mid­ morning break. She was on a work
permitted break in a "break room" of which the Employer
either knew or should have known was a place where she
would getting [sic] something to drink which is permitted
by her employer. It was a neutral risk as permitted under
the Sentry Insurance Company case analysis. I find the
Employer imported the risk into the claimant' s home by
authorizing and permitting a remote office to be

                              39
established with reasonable expectations that comfort and
refreshment breaks would be required during her eight
hour work day. The Employer by virtue of the
Telecommuting agreement imported the work environment
into the claimant's home and the Claimant' s home into the
work environment. The Employer's Telecommuting
Agreement did not restrict the area where she could take
breaks, where she could use the bathroom or what personal
property she could keep in her home, including pets. Sy
Jenkins, the adjuster for the E/SA, admitted that the
Telecommuting Agreement did not restrict the Claimant' s
ability to have pets in her home. He further admitted that
the Employer had the right to inspect and obtain
photographs of the Claimant's work environment and
never asked to do either. The Employer created to my mind
what is tantamount to a satellite office for the Employer
from which the Claimant was working and with it the risk
of injury inside the home during normal working hours and
conditions as long as the Claimant would be within the
course and scope of her employment.

      I find that the claimant was required to get up early
and work in order to accommodate the employer's schedule
in Lake Mary, Florida. Therefore she had to get up at 4:00
a.m. Pacific Standard time (an extremely early time for most
people) in order to be at work for the employer in Florida at
7:00 a.m. It was reasonably foreseeable that the claimant
would have to take comfort or refreshment breaks and the
logical place with which she could do so was in her home
kitchen and bathrooms. Such personal comfort activities
provide a benefit to the employer and are reasonably
incidental to the performance of her work activities.
Therefore I find the accident indeed flowed from the
employment as a natural consequence and that taking a
break to get something to drink during normal working
hours has a relationship to her work and is a necessary
function of her being able to continue to work for 8 hours
during the day. Bayfront Med. Ctr. v. Harding, 653 So.2d
1140 (Fla. 1st DCA 1995) I do not find as the E/SA argues
that the Claimant imported the risk into the work place. I
find the tripping over the dog would be no different than if

                             40
she had slipped on a liquid substance on the floor, on a lose
kitchen floor mat, or over her own two feet. I find the
accident would be compensable.

      In regard to the above findings I do not find that the
accident was distinctly and wholly personal in nature.
Claimant was not carrying out a mission that was purely
personal and not related to work, incidentally or otherwise.
Had the claimant been playing with the dog and was injured
in the process of doing so, then I would find the accident
would not be compensable, that there would be no job
connectedness and that there would indeed be a deviation
from employment to otherwise bar compensability. Such was
not the case here. Thus this case is distinguishable from the
trial level case of Kimberly Shepherd v. The Pantry, 13-
013620WWA (Decided 12/20/13) that the E/SA offers for my
consideration. And the facts in this case are also
significantly different from the Sentry case upon which the
E/SA relies.

       In summary I find the claimant complied with the
Telecommuting Agreement. Her home office (upstairs
bedroom dedicated as her office) was apparently free of any
obstructions and included those items required to make the
office safe and functional. At least there was no evidence
that it was not. There is no showing that the accident
actually occurred in the home office because of an
obstruction therein. Furthermore the agreement does not
exclusively deny all accidents that occur in other areas of the
home which appears to be the suggested argument in the
E/SA' s motion. The specific language is that, "injuries
occurring in other locations in Colleague's home ordinarily
will not be covered." As heretofore alluded to, I find it is
reasonable that accidents that occur in the bathroom or
kitchen may be compensable as those areas would be
necessary for a worker to meet their personal comfort needs.
I find that it would be most illogical for the claimant to leave
her home in order to meet those personal comfort needs.
Especially given the claimant gets up as early as 4:00 a.m.
in order to render the adjusting services to her employer in
Florida. Meeting her personal comfort needs adheres to the

                              41
benefit of the employer and flows from the employment as a
natural consequence. Holly Hill Fruit Products, Inc. v.
Krider, 473 So.2d 829 (Fla. 1st DCA 1985) It is foreseeable
that the claimant may want and may need to take a coffee
break to keep her mind alert and to remain focused in her
work. It is reasonable to conclude that the claimant who is
permitted to work from her home would go to her kitchen on
breaks. I find that she did not leave her work premises at
the time of the injury as she was in an area in her general
and necessary work environment. I find there is indeed the
connection between the Claimant's employment and her
accident which arose from her employment. I find the
personal comfort doctrine does apply in this case
notwithstanding the E/SA' s protestations to the contrary.
Lastly I find the claimant did not do anything affirmatively
to cause her accident. It was an unexpected event or result
that happened suddenly.

      I do not find under these facts presented that the
claimant imported her personal property, the dog, as to
affirmatively cause this claim to be non-compensable.
Additionally there is no clear and undisputed evidence that
there was any personal medical condition of the Claimant
that caused her fall. As such her fall at this juncture is found
to be compensable. Walker v.Broadview Assisted Living, 95
So.3d 942, (Fla.1st DCA 2012)

      In order for summary judgment to be granted, there
must be no genuine issue as to any material fact and one of
the parties must be entitled to judgment as a matter oflaw.
"Summary judgment is proper only where the pleading and
record do not reflect conflicting issues of material fact." See
Levey G. Getelman, 408 So.2d 663,665 (Fla. 3rd DCA
1981). If issues of fact exist and the slightest doubt remains,
summary judgment cannot be granted.

      All doubts as to the existence of genuine issues of
material fact are to be resolved against the moving party.
The moving party is required to produce probative evidence
indicating conclusively that genuine issues of material fact
do not exist. Until such time as it does so, the opposing party

                              42
is under no obligation to show that issues remain to be tried.
See Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966) and
Fletcher Co. v. Melroe Mfg. Co., 261 So.2d191, 193 (Fla.
1st DCA 1972). Once the moving party introduces evidence
of its prima facie right to summary relief, the non-moving
party must produce competent counter evidence. Simply
asserting that an issue of fact exists will not suffice. See
Landers v. Milton, 370 So.2d 368 (Fla. 1979) and
Almand Construction Co.• Inc.• v. Evans, 547 So.2d
626, 628 (Fla. 1989).

      Upon review of the record submitted, considering
the arguments of counsel and being otherwise advised in
the premises, I find that there are no genuine issues of
material fact as to only certain issues.

     a. I find that the Claimant was in the course and scope
        of her employment.
     b. I find based on the above that she had an accident
        during her normal working hours on the work
        premises established by the Telecommuting
        Agreement and that her accident and possibly her
        injuries arose out of and in the course of her
        employment as a Telecommuting Employee
        working from a satellite office of the Employer.
     c. I find that the Claimant sustained a compensable
        workers' compensation accident when she fell on
        her mid-morning break and was reportedly injured
        as a result of that fall.
     d. I reserve jurisdiction to determine what injuries,
        if any, were directly related to her fall of April 27,
        2016 and this will be determined following the
        final hearing on November 8, 2016.
          WHEREFORE IT IS HEREBY ORDERED AND
     ADmDGED that:

        The Employer/Servicing-Agent' s Motion for
        Summary Final Order is DENIED, and I find the
        Claimant sustained a compensable workers'
        compensation accident on April 27, 2016 which arose

                              43
        out of and in the course of her employment with the
        Employer.

          DONE AND ORDERED in Chambers in Orlando,
      Orange County, Florida.




                     Honorable W. James Condry Judge of
                     Compensation Claims
                     400 W. Robinson Street, Suite 608-
                     North Orlando, Florida 32801


               _____________________________

James N. McConnaughhay of McConnaughhay, Coonrod, Pope
Weaver, & Stern, P.A., Tallahassee, and Elizabeth V. Bogle,
Pensacola, for Appellants.

Bill McCabe, Longwood, and Glen D. Wieland, Orlando, for
Appellee.




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