Silberberg v. Palm Beach Cnty. Sch. Bd.

• Citation: 335 So.3d 148
• Decision Date: 16 February 2022
• Docket Number: 1D20-75
• Parties: Steven SILBERBERG, Appellant, v. PALM BEACH COUNTY SCHOOL BOARD and York Risk Services Group, Appellees.
• Court: Court of Appeal of Florida (US)

335 So.3d 148

Steven SILBERBERG, Appellant,

v.PALM BEACH COUNTY SCHOOL BOARD and York Risk Services Group, Appellees.

No. 1D20-75

District Court of Appeal of Florida, First District.

Date of Accident: February 21, 2019

February 16, 2022

Rehearing Denied March 21, 2022

Michael J. Celeste, Jr. of Celeste Law Firm, West Palm Beach, and Bill McCabe of William J. McCabe, P.A., Longwood, for Appellant.

Diane H. Tutt of Conroy Simberg, Hollywood, for Appellees.

Tanenbaum, J.

Steven Silberberg suffered injury from a fall in the classroom where he worked. He had been sitting, and his leg went numb just before he stood up. The sleeping leg led to a loss of balance and his falling over. The salient question for us is whether his fall is a compensable accident under Florida's Workers' Compensation Law. The judge of compensation claims ("JCC") denied compensability, concluding that Silberberg's resulting injury did not arise out of his work as a teacher, even though the fall occurred while he was at work and performing work. We agree with that determination and affirm.

I.

Silberberg had a clear recollection of how his accident happened. As Silberberg explained, he taught in a program for students expelled for their involvement in severe incidents at their home schools. The students stayed in one classroom all day, and they were allowed to leave for lunch and special elective classes. Typically, Silberberg walked around his classroom to help individual students, and he also used a whiteboard to teach. He did not spend much time sitting while the students were in the classroom, because they had to be constantly monitored.

On the day of the accident, Silberberg was teaching six students, ranging from third to fifth grade, and he had two people assisting him in the classroom. Before dismissing his class for lunch, Silberberg took a seat in his usual chair at his usual desk to sit for five minutes or less. He described the chair as being similar to the rolling chair he was sitting in at his hearing before the JCC. There was nothing special or unusual about the desk, either.

Because the students had to be closely monitored, when the students were told to line up for lunch, Silberberg stood up from his chair and tried to take a step. When he did, he had no feeling in his left leg. His leg gave way, causing him to fall on the linoleum floor and break his left femur. The parties stipulated that Silberberg did not trip or stumble immediately before the fall, and that he did not strike the desk or any other work equipment as part of the fall.¹ No one assaulted him or pushed him.

Dr. Jose Zuniga, who performed an independent medical exam ("IME") on behalf of the employer, testified that Silberberg reported occasional numbness in his left foot prior to the accident. Still, the numbness that Silberberg experienced when he fell at work "did not seem related to any major medical illness"; he did not have vascular disease

, diabetes, sciatic nerve injury, or severe lower lumbar disc disease. The doctor concluded that the leg numbness that Silberberg experienced while sitting just before the fall was "most likely due to brief compression of the nerves for the left leg due to the sitting in one position."

According to Dr. Zuniga, Silberberg may have had some venous insufficiency

that could give rise to an occasional tendency to experience a compressed nerve when sitting, and this might have explained why Silberberg's leg went numb. It appeared to Dr. Zuniga that Silberberg probably had "a benign condition"—Silberberg's leg could have fallen asleep sitting at any time, whether at work or at home—and "it's probably going to happen again if he sits in one position for a period of time." Dr. Zuniga added that he thought the fall occurred because Silberberg simply started to walk too soon after standing with a numb leg and "lost his balance."

Silberberg hired Dr. Robert Simon to perform his own IME. Dr. Simon reached the same conclusion: Silberberg "was sitting and his leg fell asleep because of compression of the nerve

and most likely the vasculature, but either one led to his limb getting numb and weak." He also agreed that this is a very common phenomenon "that most people experience at least once in their life," and that it is something that could happen anywhere.

The JCC considered this evidence and the argument of counsel. In her final order, the JCC first noted that there was no dispute the accident happened in the course and scope of Silberberg's employment. Her task was to determine whether Silberberg's injury arose out of his work. The JCC concluded that "we know how the accident happened," so this was not an "unknown fall" case. She noted that both IME doctors agreed that nerve compression

, which could "happen at any time and anywhere," was the cause of Silberberg's numbness, and she found that this numbness was the cause of his fall.

According to the JCC, the sitting and standing described by Silberberg were "routine movements" to which Silberberg would "normally" be exposed in his nonemployment life as well, so "[t]he risk of [Silberberg's] leg going numb existed whether at home, at work or anywhere else." In turn, the JCC followed this court's en banc decision in Sedgwick CMS v. Valcourt-Williams , 271 So. 3d 1133, 1136 (Fla. 1st DCA 2019) (en banc), concluding that there was no evidence that the "physical surroundings on the job in any way contributed to the risk of an injury more than they would have in nonemployment life."

The JCC expressly rejected Silberberg's assertion that his injury is compensable simply because he fell at work. She also rejected Silberberg's reliance on Caputo v. ABC Fine Wine & Spirits , 93 So. 3d 1097 (Fla. 1st DCA 2012), which he used to support his contention there is 1) a presumption in favor of a compensable accident when an injury occurs at work and there is no pre-existing condition; and 2) that only a "pre-existing condition" can be a competing cause that could trigger the "increased hazard" inquiry applied by the JCC. The JCC denied Silberberg's claim for compensability. On appeal, Silberberg asks that we reverse that denial.²

II.

In Silberberg's view of the case, there was no evidence that he had a "pre-existing condition." In turn, he contends he sufficiently established "occupational causation" (as that term is used in the Workers' Compensation Law, to be addressed in a moment) by the mere fact that the accident occurred in the course and scope of his employment, while he was engaged in a work activity. Silberberg says that the accident in turn "was not the result of a ‘personal risk’ imported into the workplace," so "it does not matter whether [he] could incur the same injury whether at home, at work or anywhere else since any exertion connected with [his] employment is adequate to satisfy the legal test of causation." This is a case involving a workplace fall, and Silberberg takes too narrow a view of what counts as a personal risk that will trigger the "increased hazard" test, rather than the more permissive "any exertion" test that he prefers. To address his argument, we begin by covering some background on causation in this area of the law, and then by looking at how basic causation principles intersect with the statutory requirement that work be the major contributing cause³ of a workplace injury, particularly in the context of a fall.

A.

An employee's injury is compensable under the Workers' Compensation Act if it stems from an accident that "aris[es] out of work performed in the course and the scope of employment." § 440.09(1), Fla. Stat.; see also § 440.02(19), Fla. Stat. (defining "injury" in terms of an accident "arising out of and in the course of employment"); § 440.02(1), Fla. Stat. (defining an "accident" in the context of chapter 440 as "only an unexpected or unusual event or result that happens suddenly"). "The phrases ‘arising out of’ and ‘in the course of employment’ are used conjunctively. The words ‘arising out of’ refer to the origin of the cause of the accident, while the words ‘in the course of employment’ refer to the time, place, and circumstances under which the accident occurs." Bituminous Cas. Corp. v. Richardson , 148 Fla. 323, 4 So. 2d 378, 379 (1941) (citing reference omitted). For decades the supreme court has been telling us that this means an employee must "show that the accident or injury happened not only in the course of [his] employment but arose out of it. There must have been a causal connection between the employment and the injury." Gen. Properties Co. v. Greening , 154 Fla. 814, 18 So. 2d 908, 911 (1944) (emphasis supplied); Glasser v. Youth Shop , 54 So. 2d 686, 687 (Fla. 1951) ("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." (emphasis supplied)).

The Legislature strengthened this work-causation requirement by adding the current definition of "arising out of" and making express reference to "occupational causation." See Ch. 93-415, § 2, at 73, Laws of Fla. (adding the current definition of "arising out of"); id. § 112, at 215 (providing for January 1, 1994, effective date for the act); see also § 440.02(36), Fla. Stat. With the new definition of "arising out of," the Legislature recognized that "there may be numerous contributing causes leading to an injury or disability." Orange Cnty. MIS Dep't v. Hak , 710 So. 2d 998, 999 (Fla. 1st DCA 1998). If there are, for an accident to be compensable, the "work performed in the course and scope of employment [must be] the major contributing cause of the injury or death." § 440.02(36), Fla. Stat. This statutory addition of the MCC standard "superseded" what had been "prior court-created causation standards." Energy Air v. Lalonde , 135 So. 3d 1090 (Fla. 1st DCA 2014) ; see also Vigliotti v. K-mart Corp. , 680 So....