Opinion
No. 1D21-3745
11-14-2023
EAST COAST WAFFLES, INC. d/b/a Waffle House, and Brentwood Management Services, Inc., Appellants, v. Jonathan L. HASELDEN, Appellee.
Robert D. Pope and Ryan L. Davis of McConnaughhay, Coonrod, Pope, Weaver & Stern, P.A., Jacksonville, for Appellants. Kenneth B. Schwartz of Winer Law Group, Fort Lauderdale, for Appellee.
On appeal from an order of the Office of the Judges of Compensation Claims. William R. Holley, Judge.
Robert D. Pope and Ryan L. Davis of McConnaughhay, Coonrod, Pope, Weaver & Stern, P.A., Jacksonville, for Appellants.
Kenneth B. Schwartz of Winer Law Group, Fort Lauderdale, for Appellee.
Rowe, J.
East Coast Waffles, Inc. and Brentwood Management Services, Inc. (the E/C) appeal an order of the Judge of Compensation Claims (JCC) awarding workers’ compensation benefits to Jonathan L. Haselden. Because Haselden failed to prove that his injuries arose out of his employment, we set aside the JCC’s order.
Facts
Haselden worked as a grill cook at Waffle House. On June 15, 2019, after working a double shift, Haselden experienced severe pain in his lower back. When his manager arrived at Waffle House early in the morning, Haselden reported that he had been unable to take any real breaks in the almost eighteen-hour shift. In response—and Haselden readily admits that he is unsure who came up with the idea—Haselden and his manager thought that manipulating ("popping") Haselden’s back might relieve some of his pain.
The manager told Haselden to place his hands behind his head with his fingers interlaced. Haselden followed these instructions. His manager then pushed down on Haselden’s elbows. Haselden did not notice any immediate changes from the manipulation. He went home immediately after that. But later that day, he could not stand up straight and had nerve pains running down his leg. Haselden tried to return to work that evening, but he had to leave after two hours due to his back pain. Haselden’s employment was terminated two weeks later.
Haselden filed two petitions for benefits (PFBs) seeking disability benefits and authorization of medical treatment for back pain radiating into his left leg and knee. When asked to describe the accident that led to his need for treatment, Haselden described his manager manipulating or "popping" his back. The E/C denied the request for benefits, and the matter proceeded to a hearing.
Dr. Max Mondestin performed Haselden’s independent medical exam (IME). He diagnosed Haselden with lumbar radiculopathy secondary to the L4-5 disk herniation causing, central and lateral recess narrowing. He noted that Haselden had lower back pain before the back manipulation performed by his manager. Further, Haselden had a prior left knee injury, with a left-sided foot drop and had also had three prior right knee surgeries, resulting in right foot drop. Even so, Dr. Mondestin concluded that the manipulation of Haselden’s back could have caused Haselden’s injuries. Dr. Mondestin later concluded that manipulation was the major contributing cause (MCC) of the Haselden’s injuries.
Dr. Lee Kelley performed an IME on behalf of the E/C. He also diagnosed Haselden with an L4-5 disc herniation with spinal stenosis at L4-5 along with some degenerative disc disease and disc bulging and foraminal stenosis at L5-S1. Kelley found no objective findings in Haselden’s medical records that would allow him to determine that the back manipulation was at least fifty-one percent the cause of Haselden’s complaints.
In considering Haselden’s claims, the JCC reviewed the PFBs, the responses to the PFBs, the pretrial stipulation, Dr. Mondestin’s deposition, Dr. Kelley’s depositions, Haselden’s deposition, and Haselden’s medical records. The only witness to testify live was Haselden. The JCC authorized medical treatment for Haselden and awarded temporary partial disability (TPD) benefits. The JCC found that Haselden sustained an injury either from working the seventeen-hour shift or from his manager manipulating his back. The JCC concluded that both mechanisms of injury occurred within the course and scope of Haselden’s employment because Haselden was on work premises during his shift while reasonably fulfilling his duties by either working the grill or receiving pain relief assistance from a manager. The JCC then found that there was competent, substantial evidence that the industrial accident was the MCC for Haselden’s lower back injuries. The JCC rejected Dr. Kelley’s testimony, finding that Dr. Mondestin’s testimony and reasoning were most logical and reasonable. This timely appeal follows.
Standard of Review
[1, 2] This Court reviews the JCC’s factual findings to determine whether they are supported by competent, substantial evidence. Sanchez v. YRC, Inc., 304 So. 3d 358, 359 (Fla. 1st DCA 2020). And we review the JCC’s legal conclusions de novo. Id.
Analysis
[3–5] To be compensable under the Workers’ Compensation Law, an employee must suffer "an accidental compensable injury … arising out of work performed in the course and scope of employment." § 440.09(1), Fla. Stat. (2018). The "arising out of’ element refers to "the origin of the cause of the accident." Silberberg v. Palm Beach Cnty. Sch. Bd., 335 So. 3d 148, 154 (Fla. 1st DCA 2022) (quoting Bituminous Cas. Corp. v. Richardson, 148 Fla. 323, 4 So. 2d 378, 379 (1941)). And "in the course and scope of employment" refers to "the time, place, and circumstances under which the accident occurs." Id. "[F]or an injury to arise out of and in the course of one’s employment, there must be some causal connection between the injury and the employment or it must have had its origin in some risk incident to or connected with the employment or that it flowed from it as a natural consequence." Fid. & Cas. Co. of N.Y. v. Moore, 143 Fla. 103, 196 So. 495, 496 (1940).
[6] It is the claimant’s burden to show that both requirements are satisfied. MBM Corp./Sedgwick Claims Mgmt. Servs. v. Wilson, 186 So. 3d 574, 576 (Fla. 1st DCA 2016). A claimant must prove that his injury "was the result of an accident happening not only in the course of his employment but arising out of it." Travelers Ins. Co. v. Taylor, 147 Fla. 210, 3 So. 2d 381, 383 (1941).
[7, 8] The JCC concluded that Haselden’s injuries were caused by two accidents—(1) the manager manipulating Haselden’s back, and (2) Haselden working a seventeen-hour shift on the grill with no real breaks. The JCC erred in two respects. First, Haselden never pleaded or proved that the seventeen-hour shift was the cause of his injuries. Second, Haselden did not meet his burden to show that his injuries from back manipulation arose from the work he performed for Waffle House.
As to the seventeen-hour shift, Haselden did not meet his burden to plead or prove that any injury was caused by working a double shift. Section 440.192(2)(c), Florida Statutes (2018), requires a PFB to include "[a] detailed description of the injury and cause of the injury, including the location of the occurrence and the date or dates of the accident." In both PFB’s, Haselden provided the following description of his accident: "During the course of a shift the employee complained of back pain, the employee[’]s manager tried to pop the employee[’]s back." Haselden never alleged that the double shift with little to no breaks caused his injuries. Had he done so, Haselden would have needed to plead and offer proof of an injury caused by a repetitive trauma—a claim with a much higher burden of proof.
[9] To prove a repetitive trauma injury, Haselden would have needed to show by clear and convincing evidence: "1) prolonged exposure, 2) the cumulative effect of which is injury or aggravation of a preexisting condition and 3) that he has been subjected to a hazard greater than that to which the general public is exposed." Festa v. Teleflex, Inc., 382 So. 2d 122, 124 (Fla. 1st DCA 1980); § 440.09(1), Fla. Stat. (2018) (mandating proof by clear and convincing evidence of "both causation and sufficient exposure to support causation" in cases involving repetitive trauma). Alternatively, a claimant may also prove repetitive trauma through "a series of occurrences, the cumulative effect of which is injury." Festa, 382 So. 2d at 124. Haselden presented no evidence to satisfy the clear and convincing standard for causation. Cf. Louisiana Pac. Corp. v. Harcus, 774 So. 2d 751 (Fla. 1st DCA 2000) (holding that the claimant satisfied his burden to show that his spinal stenosis was caused by twenty-four years of performing heavy, manual labor); Johnson v. Knight, 594 So. 2d 836 (Fla. 1st DCA 1992) (holding that claimant satisfied his burden to show that his back injury resulted from repetitive trauma from the bouncing and vibration, moving of heavy objects, and repetitive lifting associated with his job as a truck driver). For this reason, the JCC erred in relying on Haselden’s seventeen-hour shift as a potential occupational cause for his injuries.
[10, 11] That leaves only the back manipulation as a potential occupational cause for Haselden’s injuries. But on these facts, Haselden failed to meet his burden to establish that any injuries he suffered from the back manipulation were caused by the work he performed for Waffle House. This is because chapter 440 does not cover workplace injuries; it covers work-caused injuries. Occupational causation cannot be established "based solely on a showing that but for the employee being at work, ‘he would not have been injured in the manner and at the particular time that he was hurt.’ " Silberberg, 335 So. 3d at 155 (quoting Hernando Cnty. Sch. Bd. v. Dokoupil, 667 So. 2d 275, 276 (Fla. 1st DCA 1995)); Sentry Ins. Co. v. Hamlin, 69 So. 3d 1065, 1071 (Fla. 1st DCA 2011) ("Mere presence at the workplace is never enough, standing alone, to meet the ‘arising out of’ prong of the coverage formula."). "There must have been a causal connection between the employment and the injury." Silberberg, 335 So. 3d at 154 (quoting Gen. Props. Co. v. Greening, 154 Fla. 814, 18 So. 2d 908, 911 (1944)). In other words, an injury must flow from employment as a natural consequence. Id.
Haselden’s injuries did not flow as a natural consequence from his work as a Waffle House grill cook. Haselden allowed his manager, who was not a chiropractor and who had no medical training, to manipulate his back. Haselden’s injuries did not result from an employer-provided risk that directly and immediately impacted his body. See id. at 155. The back manipulation was not performed to support Haselden’s duties as a grill cook. It was merely an effort to relieve back pain at the end of his workday. On these facts, Haselden failed to show that the injuries he suffered from the back manipulation were caused by the work he performed for Waffle House. Because the record evidence does not support the JCC’s finding on occupational causation, we set aside the JCC’s order awarding benefits to and authorizing medical care for Haselden.
Set Aside.
Judge Nordby was substituted for an original panel member in this proceeding after oral argument. She has reviewed the parties' briefs, the record, and the recording of the oral argument.