Opinion
No. 1D20-3777
03-09-2022
Felix AQUINO, Appellant, v. AMERICAN AIRLINES and Sedgwick CMS, Appellees.
Toni L. Villaverde, Coral Gables, for Appellant. Michael Antonio Hernandez, Miami, for Appellees.
Toni L. Villaverde, Coral Gables, for Appellant.
Michael Antonio Hernandez, Miami, for Appellees.
Osterhaus, J. Claimant Felix Aquino argues that the Judge of Compensation Claims wrongly denied his workers' compensation claim under the going and coming statute, § 440.092(2), Florida Statutes, and that his case falls under one of the law's exceptions. We see no error in the JCC's decision and affirm.
I.
Claimant worked as a baggage handler for American Airlines when his injury occurred. According to the JCC's findings, Claimant had clocked out from his job for the day, walked through airport security to the upper level of the Miami airport terminal towards a parking-lot-shuttle bus stop, and then injured the calf muscle in his right leg stepping off a curb. Claimant reported the accident at work the next day and visited an on-site clinic. The clinic treated Claimant by providing pain medication, crutches, and a "cam boot" with instructions to stay home and rest. Claimant also received a prescription for an MRI. After the MRI, Claimant was referred to an orthopedist. But when the Employer/Carrier (E/C) denied his claim, Claimant sought treatment with his own primary doctor.
Claimant later filed petitions for benefits, which the E/C also denied in their entirety. The case proceeded to a hearing before a JCC, who concluded that Claimant could not recover due to the "going or coming" statute, § 440.092(2). Claimant appealed after his claims were denied.
II.
The JCC's findings of fact are reviewed for competent, substantial evidence, while legal conclusions are reviewed de novo. See Certistaff, Inc. v. Owen , 181 So. 3d 1218, 1221 (Fla. 1st DCA 2015) ; Lombardi v. S. Wine & Spirits , 890 So. 2d 1128, 1129 (Fla. 1st DCA 2004).
Claimant's first argument for reversal is that § 440.092(2) was improperly applied to bar coverage for his calf injury. This "going or coming" statute generally precludes workers' compensation coverage for injuries that occur when an employee commutes to or from work:
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.; see also Swartz v. McDonald's Corp ., 788 So. 2d 937, 942 (Fla. 2001) (applying the statute).
Claimant argues that the statute doesn't bar coverage in his case because his injury occurred while traversing the ground between two parts of his employer's premises – Claimant's specific work site and the airport-employee parking lot where Claimant parked his car. Claimant argues that the public areas of the Miami airport between his job site and the lot should have been considered part of the regularly used premises of his employer. And so, notwithstanding the going or coming statute, Claimant argues that his injury occurred on his employer's premises and within the course and scope of his employment.
We understand Claimant's argument and recognize that certain exceptions apply to the going or coming statute that can keep coverage in place during a commute to or from work. For instance, the statute provides that an injury sustained by an employee while "engaged in a special errand or mission for the employer" is considered to arise out of and in the course of employment and covered. § 440.092(2), Fla. Stat.; see also Swartz , 788 So. 2d at 942–43 (discussing exceptions to the going and coming rule); Evans v. Holland & Knight , 194 So. 3d 551, 552 (Fla. 1st DCA 2016) (same). Claimant argues that § 440.092(2) doesn't apply in his case because his injury occurred on his employer's premises. The so-called "premises rule" has been described by our cases as follows:
Under the premises rule, an injury sustained by an employee with fixed hours and place of work who is injured while going to or coming from work is in the course of employment if it occurred on the employer's premises and not if it occurred off the employer's premises.
Security Bureau, Inc. v. Alvarez , 654 So. 2d 1024, 1025 (Fla. 1st DCA 1995). The key factor in premises-rule cases is whether the injury occurred in an area where the employer exercises "actual domination or control." Id. at 1026 ; see also Evans , 194 So. 3d at 552 (citing Alvarez and the "absence of any evidence of actual domination or control by the employer" in rejecting compensability of a parking lot injury).
Claimant's key contention here is that the airport-employee parking lot, where he was headed when injured, was part of his employer's premises, which effectively made his regular path between the job site and parking lot part of his employer's premises too. But the JCC determined that the Employer exercised no actual domination or control over the airport-employee parking lot. Moreover, Claimant's injury occurred in a public area that served essentially as a public sidewalk, which wasn't owned, leased, or maintained by the employer. That Employer's employees traversed public areas of the airport and parked in a non-exclusive airport-employee parking lot did not convert these places to Employer's premises. Id. ; Silva v. General Labor Staffing Services, Inc ., 995 So. 2d 1107, 1110 (Fla. 1st DCA 2008) (holding the premises exception did not apply because the employer didn't habitually use the parking lot for a special purpose, control it, or exclude others from it). And so, we see no error in the JCC's rejection of Claimant's premises argument.
Even if the accident had occurred on Employer's premises, it is unclear that Claimant's injury would be compensable. See, e.g. , Silberberg v. Palm Beach Cnty. Sch. Bd. , No. 1D20-75, 335 So. 3d 148, 159 (Fla. 1st DCA Feb. 16, 2022) (noting that compensability may be denied in walking-at-work accident cases where an idiopathic condition, such as a "ruptured Achilles tendon," has contributed to the accident); Sedgwick CMS v. Valcourt-Williams , 271 So. 3d 1133, 1135-37 (Fla. 1st DCA 2019) (en banc) (recognizing compensability to turn upon whether the employment led to the risk of injury, and not merely whether the injury occurred on the employer's premises).
Finally, we reject Claimant's argument that the E/C waived its right to deny compensability. Although Claimant at first received treatment while the E/C investigated his injury claim, the E/C denied the claim less than fourteen days later (before Claimant sought treatment with his own doctor). Later, after Claimant filed a petition for benefits, the E/C promptly responded by denying the claim the next day.
AFFIRMED.
Rowe, C.J., and Winokur, J., concur.