DSK Grp., Inc. v. Hernandez

• Decision Date: 27 April 2022
• Docket Number: 1D19-2632
• Citation: 337 So.3d 814
• Parties: DSK GROUP, INC., and Zurich American Insurance Company, Appellants, v. Jorge Zayas HERNANDEZ, Appellee.
• Court: Florida District Court of Appeals

337 So.3d 814

DSK GROUP, INC., and Zurich American Insurance Company, Appellants,

v.Jorge Zayas HERNANDEZ, Appellee.

No. 1D19-2632

District Court of Appeal of Florida, First District.

Date of Accident: August 9, 2018.

April 27, 2022

H. George Kagan of H. George Kagan, P.A., Gulf Stream, for Appellants.

Kimberly A. Hill of Law Offices of Anidjar & Levine, P.A., Fort Lauderdale, for Appellee.

Tanenbaum, J.

Jorge Zayas Hernandez is an electrician. DSK Group, Inc. is an employee-leasing company that provided Hernandez to KBF Renovations, Inc., a company that does residential remodeling. As Hernandez drove from his home to the first remodeling job of the day, a drunk driver collided with Hernandez's car, causing him bodily injury and lost work. The question here is whether section 440.092(2), Florida Statutes (the " ‘going or coming’ exclusion") excludes Hernandez's injury from compensability under the Workers’ Compensation Law ("WCL"). The judge of compensation claims ("JCC") rejected Hernandez's contention that he was a "traveling employee," which the statute spells out as an exception to the "going or coming" exclusion. Instead, the JCC labeled Hernandez as a "field employee," as opposed to "one who works directly at the employer's premises during the workweek." He, in turn, characterized Hernandez as being on the job from the moment he started his car at home in the morning. The JCC concluded on this basis that Hernandez was not subject to the "going or coming" exclusion, but he made no reference to a statutory exception besides the "traveling employee" one that the JCC already had determined did not apply. DSK and its carrier appeal. Because the JCC's conclusion was error, we reverse.

The facts are undisputed. As part of the arrangement between DSK and KBF, Hernandez received an hourly wage and was compensated only for his actual work done at different job sites. The job sites were the homes KBF had contracted to renovate, and KBF would direct Hernandez to which homes he would be working on each day. Occasionally, Hernandez would have to drive to the KBF office to pick up supplies or to attend a safety meeting before going to a job site. At the same time, Hernandez routinely drove from his house to the first job site in the morning, and then from job site to job site throughout the day. Hernandez supplied his own car to do this. As he drove to the first job, between jobs, and from the last job back to his home, his car typically would be loaded with equipment and materials that KBF supplied for his use at the jobs.

Hernandez was an hourly employee. He was paid only for the time he was "on the clock." This time ran from when he "punched in" using his cell phone after he arrived at the first house of the day to begin work. He had to "punch out" for his lunch break, but he otherwise would be on paid time until he clocked out as he left the last job site of the day to drive home. For the most part, there was a fixed schedule, and work hours typically were 7:00 a.m. to 3:30 p.m. He received no compensation for the time he spent driving from his house to the first job of the day and none for the time he spent driving from the last job of the day to his home.

According to unrebutted testimony, KBF did not provide gas reimbursement to Hernandez and employees like him. Instead, KBF provided a gas credit card in its name to Hernandez (as with other workers) to help offset some of his fuel expenses. The card had a monthly limit of $165. According to Hernandez, KBF's policy was that he could use the card to pay only for gas used in connection with work, even though there was no real way to measure that. Hernandez testified that the amount was not enough to cover what he considered to be his total monthly gas expense, and he regularly had to use his own credit card to put gas in his car. There was no evidence that KBF reimbursed Hernandez for any incurred costs based on how many miles he drove to the first job, between jobs, or home from the last job, so there was nothing from which to conclude that the $165 company card allowance covered the fuel costs for Hernandez's daily commute between home and the job sites.

One morning, while Hernandez was driving his car from his home to the first job site of the day, he suffered injuries as a result of a collision with an oncoming drunk driver. He filed a petition for benefits under the WCL, which the carrier controverted on behalf of KBF. Hernandez relied solely on the "traveling employee" exception in section 440.092(4), Florida Statutes, to get around the "going or coming" exclusion in subsection two of the same statute. The JCC determined that Hernandez did not meet the criteria to be treated as a "traveling employee." Without identifying an alternative statutory exception, the JCC nevertheless refused to apply the "going or coming" exclusion and concluded that Hernandez's accidental injury was compensable. From what we can tell, the JCC relied on three facts to reach his conclusion: 1) that Hernandez worked as a "field employee" rather than at KBF's premises; 2) that Hernandez transported materials and tools in his car; and 3) that KBF provided Hernandez the $165 gas allowance. We now explain why this conclusion was incorrect.

To begin, the pertinent statutory language regarding the "going or coming" exclusion states as follows:

An injury suffered while going to or coming from work is not an injury arising out of and in the course of employment whether or not the employer provided transportation if such means of transportation was available for the exclusive personal use by the employee, unless the employee was engaged in a special errand or mission for the employer.

§ 440.092(2), Fla. Stat. The Legislature enacted the quoted text in 1990. See ch. 90-201, § 14, at 920, Laws of Fla. In doing so, it codified a long-standing, judicially created rule. See Sweat v. Allen , 145 Fla. 733, 200 So. 348, 350 (1941) ("The authorities all seem to hold that, as a general rule, injuries sustained by employees when going to or returning from their regular place of work are not deemed to arise out of and in the course of their employment." (citing Voehl v. Indem. Ins. Co. of N. Am. , 288 U.S. 162, 169, 53 S.Ct. 380, 77 L.Ed. 676 (1933) )).

The rule was to apply to the case of "an ordinary workman going to work." Id. It is "grounded in the recognition that injuries suffered while going to or coming from work are essentially similar to other injuries suffered off duty away from the employer's premises and, like those other injuries, are usually not work related." Eady v. Med. Pers. Pool , 377 So. 2d 693, 695 (Fla. 1979). This court later adopted a deputy commissioner's explanation of the purpose behind the rule: "Considering the fact that millions of workers are involved in travel to and from work each day and are subjected to the hazards of the highway, the system could not afford to cover the thousands of accidents which routinely occur." Dr.’s Bus. Serv., Inc. v. Clark , 498 So. 2d 659, 661 (Fla. 1st DCA 1986). There also is "the enormous difficulty of determining the compensability of claims involving the homeward journey when millions of workers scatter in all directions to engage in shopping and the like." Id. at 661–62.

Now that the rule has been codified as legislative policy, the JCC was not free to refuse application of the statutory rule on a basis not spelled out in the text. The JCC mistakenly understood the "going or coming" exclusion to apply only to workers who commute between home and the employer's premises. By its terms, application of the statutory exclusion does not turn on whether the employer owns the location where the work is to be performed. Cf. Kelly Air Sys., LLC v. Kohlun , ––– So. 3d ––––, 47 Fla. L. Weekly D668 (Fla. 1st DCA Mar. 16, 2022) ("Not all employees travel to a fixed location to punch a timecard and begin their workday."). It applies when an employee suffers injury while he is "going to or coming from work ." § 440.092(2), Fla. Stat. (emphasis supplied); see Kelly Air , ––– So. 3d at ––––, 47 Fla. L. Weekly at D670 ("Work begins when the employee starts to be compensated in the normal course of the workday and excludes uncompensated travel to and from the place where compensation begins."). There is no question that Hernandez's work did not start until he arrived at the first job of the day and clocked in. For the time he was on the clock throughout the day, KBF compensated him, and it paid him to do renovation work at the houses it assigned. The driving that Hernandez did to get to the first job site of the day, and the driving he did to get home from the last site of the day, was "going to" and "coming from" the "work" he was paid to do when he was at the job sites. No textual basis exists to support what appears to be the JCC's exception for "field employees" who perform work away from an employer-owned location.

On appeal Hernandez attempts to salvage the compensability determination by arguing the JCC reached the right result but should have and could have done so by applying the "traveling employee" exception. That statutory exception reads as follows:

An employee who is required to travel in connection with his or her employment who suffers an injury while in travel status shall be eligible for benefits under this chapter only if the injury arises out of and in the course of employment while he or she is actively engaged in the duties of employment. This subsection applies to travel necessarily incident to performance of the employee's job responsibility but does not include travel to and from work as provided in subsection (2).

§ 440.092(4), Fla. Stat. (emphasis supplied). The highlighted text precludes application of the exception to an employee's travel between home and work. That is, the "traveling employee" exception cannot apply to an injury an employee suffers while traveling to where he will start the activity for which the employer has agreed...