Hernando County School Bd. v. Dokoupil

• Decision Date: 13 September 1995
• Docket Number: No. 94-3454,94-3454
• Citation: 667 So.2d 275
• Parties: 107 Ed. Law Rep. 393, 20 Fla. L. Weekly D2128 HERNANDO COUNTY SCHOOL BOARD and Gallagher Bassett Services, Appellants, v. Randy DOKOUPIL, Appellee.
• Court: Florida District Court of Appeals

Page 275

667 So.2d 275

107 Ed. Law Rep. 393, 20 Fla. L. Weekly D2128

HERNANDO COUNTY SCHOOL BOARD and Gallagher Bassett Services, Appellants, v. Randy DOKOUPIL, Appellee.

No. 94-3454.

District Court of Appeal of Florida,

First District.

Sept. 13, 1995.

An appeal from an order of the Judge of Compensation Claims. William D. Douglas, Judge.

Michael D. Rouse and Mathew D. Staver of Staver & Associates, Orlando, for appellants.

James M. Callan, Jr., Clearwater; and Gus Vincent Soto, Tallahassee, for amicus curiae/Academy of Florida Trial Lawyers, for appellee.

DAVIS, Judge.

Hernando County School Board and Gallagher Bassett Services, employer and carrier respectively ("e/c"), appeal an order finding that the injuries sustained by claimant, Randy Dokoupil, when he fell in the parking lot at Springstead West High School on March 30, 1994, are compensable. Because the Judge of Compensation Claims ("JCC") applied the wrong test to determine compensability we reverse and remand for further proceedings consistent with this opinion.

The claimant was employed in 1989 by the Hernando County School Board to work as a substitute teacher. He was suffering from anorexia, liver disease, and osteoporosis before his 1994 accident. On March 30, 1994, he arrived at Springstead West High School to substitute for Ms. Rojero. He arrived before classes began for the day and signed in. He then learned that his first period was a planning period in Ms. Rojero's schedule and went to her classroom and picked up the grade/attendance book, worksheets, instructions and a seating chart. Realizing he had forgotten his glasses, pens, pencils and hall passes in his car, the claimant returned to his car. He took the papers obtained from Ms. Rojero's classroom with him. The claimant smoked a cigarette while sitting in his car, after which he took all of the materials and items he had gone to obtain and started back to the school. Loose papers from the attendance book fell out. While bending over to pick them up, he lost his balance and fell onto his right side. He was unable to rise without assistance, and someone helped him up. He walked another forty feet before he slid to the ground unable to walk any longer. He was found curled up in a fetal position, incoherent and in a great deal of pain. Claimant had a broken hip. He was treated by Dr. Springstead, who had treated him four years previously when his other hip had been broken after a fall at home.

The JCC found that the fall was "trivial" and that the major contributing cause of claimant's injury was his preexisting osteoporosis. He found that the hip possibly would have fractured idiopathically sometime in the near future. Nonetheless, the JCC awarded benefits after reasoning that "but for" the fact that the claimant fell, he would not have been injured in the manner and at the particular time that he was hurt. The test the JCC applied appears similar to what has been described as the "positional risk test." See Wuesthoff Memorial Hospital v. Hurlbert, 548 So.2d 771, 773 n. 3 (Fla. 1st DCA 1989) ("A growing group of jurisdictions has adopted the positional-risk test, under which an injury is compensable if it would not have happened but for the fact that the conditions or obligations of the employment put the claimant in the position where he was injured.").

That is not an accurate statement of the applicable test in the present case. The test for compensability is whether the injury arose out of, and in the course and scope of, the claimant's employment. When, as here, the claimant's injuries were caused or aggravated by the fact that he has a preexisting or idiopathic condition, the proper test for whether the injury arose out of the employment is whether the employment itself created the hazard of the risk. "The employment must, in some way, contribute an 'increased risk' of injury peculiar to that employment; otherwise, the statutory requirement that the injury 'arise out of employment' would be eliminated. Thus, the mere occurrence of an injury at work, without more, is not enough to establish compensability." Grenon v. City of Palm Harbor Fire Dist., 634 So.2d 697, 699 (Fla. 1st DCA), review denied mem., 649 So.2d 233 (Fla.1994). This case is similar to Hillsborough County School Board v. Williams, 601 So.2d 624 (Fla. 1st DCA 1992). This court therein reversed an award of benefits despite the fact that the claimant was engaged in one of her employment duties when injured. The claimant was a bus driver who was responsible for keeping the...