FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D17-96

_____________________________

SEDGWICK CMS and THE 

HARTFORD/SEDGWICK CMS,

Appellants,

v.

TAMMITHA VALCOURT-WILLIAMS,

Appellee.

_____________________________

On appeal from an order of the Judge of Compensation Claims.

W. James Condry, II, Judge.

Date of Accident: April 27, 2016.

April 5, 2019

ON HEARING EN BANC

WINSOR, J.

Tammitha Valcourt-Williams, a workers’ compensation 

claimant, tripped over her dog while reaching for a coffee cup in 

her kitchen. Because she had a work-from-home arrangement, 

and because her fall occurred during working hours, ValcourtWilliams sought workers’ compensation benefits. The Judge of 

Compensation Claims determined the injury was compensable, 

concluding that the work-from-home arrangement meant the 

employer “imported the work environment into the claimant’s 

home and the [c]laimant’s home into the work environment.” But 

CORRECTED: Incorrect draft 

issued April 5, 2019. This 

opinion, which corrected 

typographical errors, should 

have been issued. There are 

no substantive changes. 

MAILED: April 8, 2019

BY: KMS
2

the question is not whether a claimant’s “home environment” 

becomes her “work environment”; the question is whether the 

employment—wherever it is—“necessarily exposes a claimant to 

conditions which substantially contribute to the risk of injury.” 

Sentry Ins. Co. v. Hamlin, 69 So. 3d 1065, 1068 (Fla. 1st DCA 

2011) (citing Acker v. Charles R. Burklew Constr., 654 So. 2d 

1211 (Fla. 1st DCA 1995)). Here, the relevant risk was that the 

claimant might trip over her dog while reaching for a coffee cup 

in her kitchen. That risk exists whether the claimant is at home 

working or whether she is at home not working. It existed before 

Valcourt-Williams took her job, and it will exist after her 

employment ends (so long as she maintains a home with a dog). 

Because the risk did not arise out of the employment, we must 

reverse.

Valcourt-Williams was a workers’ compensation claims 

adjuster for Sedgwick CMS, an appellant here. She was assigned 

to Sedgwick’s Lake Mary office, but Sedgwick permitted her to 

work from her home in Sierra Vista, Arizona. Because of the 

different time zones, Valcourt-Williams began work at 4 a.m. 

local time to meet the Lake Mary office’s 7 a.m. start time. On the 

day of the accident, Valcourt-Williams had been working three 

hours when she went downstairs for a cappuccino. As she reached 

to get a cup, she fell over one of her two dogs. The fall resulted in 

knee, hip, and shoulder injuries, as well as a workers’ 

compensation claim. Sedgwick denied the claim, contending that 

the injuries did not arise out of the employment. After a hearing, 

the JCC sided with Valcourt-Williams, and Sedgwick appealed. 

The relevant facts are undisputed, and we review de novo the 

JCC’s application of law to those facts. Aills v. Boemi, 29 So. 3d 

1105, 1108 (Fla. 2010).

Employers must provide workers’ compensation benefits 

when employees sustain injuries from accidents “arising out of 

work performed in the course and the scope of employment.” 

§ 440.09(1), Fla. Stat. (2016). Accidents occur “in the course and 

the scope of employment” when they occur “in the period of [] 

employment, at a place where [the employee] would reasonably 

be, while fulfilling her duties.” Bryant v. David Lawrence Mental 

Health Ctr., 672 So. 2d 629, 631 (Fla. 1st DCA 1996). Here, the 

parties agree that Valcourt-Williams’s injuries occurred in the 
3

course and scope of her employment: the injury was during work 

hours, her home was where she “would reasonably be,” and her 

coffee break was a permissible “comfort break,” see Bayfront Med. 

Ctr. v. Harding, 653 So. 2d 1140, 1142 (Fla. 1st DCA 1995) 

(noting that “a worker’s attendance to personal comfort during a 

refreshment break . . . does not . . . remove the worker from the 

course and scope of his employment” (marks omitted)). “Course 

and scope” is not the issue here.

The issue here is whether the injury was “arising out of” the 

employment. See Southern Bell Tel. & Tel. Co. v. McCook, 355 So. 

2d 1166, 1167-68 (Fla. 1977) (noting “separate elements” of “in 

the course” and “arising out of” employment); Sentry Ins., 69 So. 

3d at 1070 (workers’ compensation does not cover accidents that 

occur in course and scope but that do not arise out of 

employment). As the Florida Legislature specified, “‘[a]rising out 

of’ pertains to occupational causation. An accidental injury or 

death arises out of employment if work performed in the course 

and scope of employment is the major contributing cause of the 

injury or death.” § 440.02(36), Fla. Stat.; accord Strother v. 

Morrison Cafeteria, 383 So. 2d 623, 628 (Fla. 1980) (“[T]o be 

compensable, an injury must arise out of employment in the 

sense of causation and be in the course of employment in the 

sense of continuity of time, space, and circumstances.”). More 

simply, the “arising out of” limitation “requires that the risks 

that caused [c]laimant’s accident and injuries [] be work-related.” 

Sentry Ins., 69 So. 3d at 1068. An accident is thus compensable 

only if “the employment necessarily expose[d] claimant to 

conditions that would substantially contribute to the risk of 

injury and to which the claimant would not normally be exposed 

during his nonemployment life.” Acker v. Charles R. Burklew 

Const., 654 So. 2d 1211, 1212 (Fla. 1st DCA 1995); accord Glasser 

v. Youth Shop, 54 So. 2d 686, 687-88 (Fla. 1951) (finding injury 

did not arise out of employment because claimant “was not on the 

stairs because of his employment; he would have been there in 

any event, regardless of whether he had brought his work 

home”); Medeiros v. Residential Cmtys. of Am., 481 So. 2d 92, 93

(Fla. 1st DCA 1986); Grenon v. City of Palm Harbor Fire Dist., 

634 So. 2d 697, 699 (Fla. 1st DCA 1994) (“The employment must, 

in some way, contribute an ‘increased risk’ of injury peculiar to 
4

that employment; otherwise, the statutory requirement that the 

injury ‘arise out of employment’ would be eliminated.”). 

This court has not hesitated to apply the “arising out of” 

limitation where workplace injuries flowed from risks unrelated 

to an employee’s work. In Medeiros v. Residential Communities of 

America, for example, we held that if someone is injured at work 

after fainting—but would have fainted just the same had she not

been at work—the resulting injury is not compensable. 481 So. 2d 

at 93. The claimant in Medeiros could not succeed because she 

could “not demonstrate[] that her physical surroundings on the 

job in any way contributed to the risk of injury any more than 

they would have in non-employment life.” Id. That same rule 

applies whether the injury follows fainting, see id., a heart 

attack, or—like here—a fall, see, e.g., Leon Cty. Sch. Bd. v. 

Grimes, 548 So. 2d 205, 208 (Fla. 1989) (finding fall 

noncompensable because claimant’s “employment in no way 

contributed to her injury”); Duval Cty. Sch. Bd. v. Golly, 867 So. 

2d 491, 494 (Fla. 1st DCA 2004) (“[W]e cannot say that a fall to a 

level concrete floor is automatically compensable, irrespective of 

the cause of the fall.”); Hernando Cty. Sch. Bd. v. Dokoupil, 667 

So. 2d 275, 277 (Fla. 1st DCA 1995) (“The fact that the claimant 

was in the course and scope of his employment when he fell is 

insufficient; there must be some finding that the employment 

created an increased risk of the fall itself or of the injuries which 

resulted.”).

Regardless of the type of injury, compensability always turns 

on whether the employment led to the risk—whether there was 

“occupational causation,” § 440.02(36), Fla. Stat. In other words, 

it is not enough to say this was a “workplace trip-and-fall”

because there is no statutory trip-and-fall exception. Whether the 

accident is a fall—or anything else—a claimant cannot prevail

unless there was occupational causation, a risk not existent in 

the claimant’s “non-employment life.” Mederios, 481 So. 2d at 93; 

accord Glasser, 54 So. 2d at 687 (“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.”). In ValcourtWilliams’s case, there is no such risk. Instead, it is undisputed 
5

that features of Valcourt-Williams’s “non-employment life”—her 

dog, her kitchen, her reaching for a coffee cup—caused the 

accident. 

To adopt Valcourt-Williams’s contrary view, we would have 

to hold that an employee’s tripping over her own dog at home on 

a Friday is attributable to risks of employment while the same 

employee’s tripping over the same dog at the same home on a 

Saturday is not. We would have to hold that a home light 

fixture’s falling on an employee in the afternoon is attributable to 

risks of employment while the same home light fixture’s falling 

on the same employee in the evening is not. And in doing so, we 

would have to set aside the “arising out of” limitation the 

Legislature enacted. Cf. Southern Bell, 355 So. 2d at 1168 n.3

(noting claimant’s concession that the same “activity might give 

rise to the same [injury] if it occurred after work-hours, though in 

that case there would be no recovery” and concluding that, “[i]n 

short, [claimant] requested this Court to construe the ‘arising out 

of’ requirement out of the statute, for all practical purposes”); 

Hernando Cty. Sch. Bd., 667 So. 2d at 276-77 (“[I]f all falls onto 

all surfaces were compensable, the statutory requirement that 

the injury arise out of the employment would be completely 

eradicated.”); Grenon, 634 So. 2d at 699 (“The Florida Supreme 

Court has expressly declined to broaden the purpose of workers’ 

compensation legislation to allow recovery for all injuries 

occurring in the workplace, including those arising out of 

conditions personal to the claimant which are not caused or 

aggravated by industry.”). We ought not do that.

To be sure, a handful of our earlier cases have overlooked or 

ignored the statutory “arising out of” limitation, and we have not 

always been consistent in our application of that limitation. For 

example, in Holly Hill Fruit Products, Inc. v. Krider, this court 

upheld a claimant’s award where the claimant had been hit by a 

car after leaving work to buy cigarettes. 473 So. 2d 829, 830 (Fla. 

1st DCA 1985). The court held that the claimant’s leaving work 

for an “off-premises refreshment break of insubstantial duration” 

was not enough to “remove [the claimant] from the course and 

scope of his employment.” Id. at 830-31. But the decision never 

addressed whether the accident was “arising out of” the 

employment. Id. To the extent Holly Hill is read to allow 
6

compensation without an “arising out of” component—without 

occupational causation—it cannot square with the clear statutory 

directive. See also Bayfront Med. Ctr. v. Harding, 653 So. 2d 1140 

(Fla. 1st DCA 1995) (relying on Holly Hill to find compensable 

off-premises car accident while employee sought food or 

cigarettes); Gray v. Eastern Airlines, Inc., 475 So. 2d 1288 (Fla. 

1st DCA 1985) (relying on Holly Hill to find compensable a flight 

attendant’s basketball injury from a YMCA pick-up game on a 

flight layover). 

Moreover, in at least one case, we arguably suggested that 

any injury suffered on a “comfort break” within the course and 

scope of employment was necessarily “arising out of” 

employment. In Pan American World Airways v. Wilmot, we 

found compensable a flight attendant’s injury after—while at 

dinner on a layover—she “attempted to light a cigarette, and 

burned her hand when the entire matchbook went up in flames.” 

492 So. 2d 1373, 1373 (Fla. 1st DCA 1986). This court considered 

the dinner to be within the “course and scope” of employment. 

But rather than analyze the “arising out of” limitation, the court 

rejected an argument that “risks arising from [smoking] are not 

job-related” by saying the argument “ignores another principle 

particularly applicable to workers’ compensation cases, the 

personal comfort doctrine.” Id. at 1374. To the extent Wilmot

suggests that injuries necessarily arise out of employment 

whenever the personal-comfort doctrine brings the injury within 

the course and scope of employment, we reject it as inconsistent 

not only with the statute but also with the supreme court’s 

Southern Bell decision. See 355 So. 2d at 1168 (rejecting 

compensability of bathroom injury sustained in course and scope 

of employment because the accident was “simply not one ‘arising 

out of . . . employment” (alteration in original)). If any ambiguity 

remains, we hope to remove it now: For any injury to be 

compensable, it must “arise out of” the employment; there must 

be—as the statute says—“occupational causation.” § 440.02(36), 

Fla. Stat.

None of this is to say, of course, that work-at-home 

arrangements immunize employers from workers’ compensation 

claims. Just as employer-premises accidents can have 

occupational causation, so too can work-at-home accidents. Had 
7

Valcourt-Williams suffered an injury from a risk her employment 

introduced—a repetitive stress injury from typing all day, as one 

potential example—it would be no answer for the employer to say 

she was hurt in her own home. Cf. Metro. Dade Cty. v. Russell, 

637 So. 2d 69, 70 (Fla. 1st DCA 1994) (noting that accidents can 

be compensable if “the injury resulted from an effort, exertion, 

risk, or strain beyond that which is normally encountered in 

Claimant’s non-employment life”). Nor are we holding—as the 

dissents mistakenly suggest—that there can be no 

compensability unless the employee is actively working at the 

time of the accident. An accident on a break, for example, might

still “arise[] out of employment,” § 440.02(36), Fla. Stat., where 

“the employment necessarily expose[d] claimant to conditions 

that would substantially contribute to the risk of injury,” Acker, 

654 So. 2d at 1212. But none of this relates to the situation we 

face here. Here, the risk at issue—that Valcourt-Williams would 

trip over her own dog in her own kitchen while reaching for a 

coffee cup—was not a risk her employment introduced.

The Legislature has determined the reach of the workers’ 

compensation law. And under the system the Legislature 

enacted, “[i]f industry does not contribute to the risk of the 

accident resulting in injury, the workers’ compensation law does 

not require industry to contribute to the cost of the injury.” 

Sentry Ins., 69 So. 3d at 1071. Here, the employer did not 

contribute to the risk that Valcourt-Williams would trip over her 

dog. The workers’ compensation law therefore does not require 

the employer to cover the cost of the injury.

REVERSED.

B.L. THOMAS, C.J., and WOLF, LEWIS, ROBERTS, WETHERELL, 

ROWE, RAY, OSTERHAUS, KELSEY, WINOKUR, and JAY, JJ., concur.

BILBREY, J., dissents in an opinion joined by MAKAR, J.

MAKAR, J., dissents in an opinion joined by BILBREY, J.

M.K. THOMAS, J., recused.
8

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

BILBREY, J., dissenting.

Today, a majority of this court reverses decades of precedent 

regarding the compensability of workplace injuries under Florida 

workers’ compensation law. In doing so, the court takes the 

benefits of the workers’ compensation system from many workers 

who would previously have been protected in the event of 

workplace injuries. But the court also opens many employers 

and co-employees to tort liability where previously the immunity 

from liability provided by the “Grand Bargain” or “Great Trade 

Off” of workers’ compensation applied.1 

The majority proves today the maxim that bad facts make 

bad law. At first glance, it may appear incontrovertible that 

falling over one’s own dog in one’s own home is not compensable 

under workers’ compensation. But distilled to the essential facts 

Claimant, Tammitha Valcourt-Williams, was injured in a trip 

and fall during work hours in her workplace (her house) when 

she fell over personal property (her dog) while attending to her 

personal comfort. The fact that Valcourt-Williams’s home was 

also her workplace and her kitchen doubled as her workday 

breakroom should do nothing to alter our consideration of her 

claim.2 Prior to today such a workplace injury from a neutral 

 1 The history of workers compensation and the creation of 

the “Great Trade Off” is discussed in Lloyd Harger, Workers’ 

Compensation, A Brief History, Florida Department of Financial 

Services, Division of Workers’ Compensation, 

https://www.myfloridacfo.com/division/wc/infofaqs/history.htm

(last visited March 26, 2019). 

2 The United States Census Bureau reports that in 2016, 

7,591,793 Americans worked at home for a paid employer. 
9

risk not caused by the employee’s preexisting or idiopathic 

condition was undoubtedly compensable. But rather than just 

reverse the Judge of Compensation Claims (JCC) by finding 

(incorrectly) the dog to be a personal risk, the majority has 

attempted to change the previously settled law on “arising out of” 

so that now “arising out of” means only injuries that are directly 

caused by working rather than incident to employment. Given 

that, except in the bluest of blue-collar jobs, the vast majority of 

risks present in the workplace are constantly present throughout 

society, the majority decision today represents a radical shift in 

the law. 

I believe that in denying the Employer/Carrier’s motion for a 

summary final order, the JCC was correct to rule for ValcourtWilliams on the compensability issue. Applying established law, 

the JCC determined that accident was compensable and awarded 

benefits to Valcourt-Williams. Because the majority reverses, 

and in doing so goes beyond what the E/C argued in overturning

decades of case law and essentially abrogating the long-settled 

personal comfort doctrine, I respectfully, but strongly, dissent. 

I. The Workplace Fall

As the en banc majority notes, the material facts relevant to 

this appeal are not in dispute. Valcourt-Williams was and at the 

time of the final hearing remained employed by Sedgwick CMS 

as a claims adjuster. On April 27, 2016, Valcourt-Williams 

resided in Sierra Vista, Arizona, and worked from her residence 

as a remote employee for Sedgwick under a telecommuting 

agreement. Valcourt-Williams’s normal work hours were 4 a.m. 

to 12:30 p.m., Pacific Time, which matched Sedgwick’s workday 

in its Florida office — 7 a.m. to 3:30 p.m., Eastern Time. 

Valcourt-Williams took a mid-morning break from her work 

at 7 a.m. local time to get a beverage. She went from her secondfloor home office downstairs to the kitchen where she retrieved a 

 

https://factfinder.census.gov/faces/tableservices/jsf/pages/productv

iew.xhtml?pid=ACS_17_SPL_K200801&prodType=table (last 

visited March 26, 2019). 
10

cup from the cupboard to make instant cappuccino. When she 

turned around she tripped over her dog and fell. She landed on 

her right knee and hip and was injured. 

II. The Claim for Workers’ Compensation

Valcourt-Williams timely reported the fall and injury to 

Sedgwick (the E/C), which then authorized her to receive 

treatment at an emergency room. Less than two weeks after the 

fall, however, the E/C denied compensability. Valcourt-Williams 

retained counsel and filed a petition for benefits. In the response 

to the petition, the E/C asserted that the “[a]ccident and/or injury 

did not arise out of employment.”

The E/C filed a motion for summary final order arguing the 

material facts were not in dispute and that a dispositive 

determination could be made as to whether the event was 

compensable because it was undisputed that Valcourt-Williams’s 

fall was caused by her personally-owned dog. The E/C’s motion 

alleged that the dog was a risk that Valcourt-Williams imported 

into the workplace, and these facts failed to establish a 

compensable work-related accident occurred that arose out of 

Valcourt-Williams’s employment. In response, Valcourt-Williams 

argued that application of the personal comfort doctrine 

warranted a finding that the accident was compensable.

Following a hearing on the motion, the JCC agreed that the 

relevant facts were not in dispute and that Valcourt-Williams 

sustained a compensable workers’ compensation accident which 

arose out of and in the course and scope of her employment. The 

JCC found that the fall was accidental, that it occurred during 

Valcourt-Williams’s normal working hours, and that it occurred 

during a refreshment break. The JCC also found that the break 

was not in violation of any company rule, it was not in violation 

of any provision found in the telecommuting agreement (having 

found that the agreement did not limit Valcourt-Williams’s 

ability to have pets in her home), it was a reasonable break 

necessary to meet Valcourt-Williams’s personal comfort needs, 

and it was conducive to facilitate Valcourt-Williams’s 

employment.
11

In rejecting the E/C’s argument that the risk was a personal 

one imported into the workplace by Valcourt-Williams the JCC 

explained:

It was a neutral risk as permitted under the Sentry 

Insurance Company [v. Hamlin, 69 So. 3d 1065 (Fla. 1st 

DCA 2011)] case analysis. I find the Employer imported 

the risk into the claimant’s home by authorizing and 

permitting a remote office to be established with 

reasonable expectations that comfort and refreshment 

breaks would be required during her eight hour work 

day. The Employer by virtue of the Telecommuting 

agreement imported the work environment into the 

claimant’s home and the Claimant’s home into the work 

environment. The Employer’s Telecommuting 

Agreement did not restrict the area where she could 

take breaks, where she could use the bathroom or what 

personal property she could keep in her home, including 

pets. . . . [T]he Employer had the right to inspect and 

obtain photographs of the Claimant’s work environment 

and never asked to do either. The Employer created to 

my mind what is tantamount to a satellite office for the 

Employer from which the Claimant was working and 

with it the risk of injury inside the home during normal 

working hours and conditions as long as the Claimant 

would be within the course and scope of her 

employment. 

I find that the claimant was required to get up early 

and work in order to accommodate the employer’s 

schedule in Lake Mary, Florida. Therefore she had to 

get up at 4:00 a.m. Pacific Standard time (an extremely 

early time for most people) in order to be at work for the 

employer in Florida at 7:00 a.m. It was reasonably 

foreseeable that the claimant would have to take 

comfort or refreshment breaks and the logical place with 

which she could do so was in her home kitchen and 

bathrooms. Such personal comfort activities provide a 

benefit to the employer and are reasonably incidental to 

the performance of her work activities. Therefore I find 

the accident indeed flowed from the employment as a 
12

natural consequence and that taking a break to get 

something to drink during normal working hours has a 

relationship to her work and is a necessary function of 

her being able to continue to work for 8 hours during the 

day. Bayfront Med. Ctr. v. Harding, 653 So. 2d 1140 

(Fla. 1st DCA 1995). I do not find as the E/SA argues 

that the Claimant imported the risk into the work place. 

I find the tripping over the dog would be no different 

than if she had slipped on a liquid substance on the 

floor, on a lose [sic] kitchen floor mat, or over her own 

two feet. I find the accident would be compensable.

In the summary final order, the JCC reserved jurisdiction to 

determine what injuries, if any, were related to the fall. A final 

merits hearing then took place. The JCC found that when 

Valcourt-Williams fell she sustained a traumatic loosening of 

hardware which had previously been implanted in her right knee 

— Valcourt-Williams having undergone bilateral knee 

replacement surgeries in 2009. The JCC directed the E/C to 

authorize ongoing treatment for Valcourt-Williams’s work-related 

right knee injury as the nature of the injury and the process of 

recovery may require. The E/C was also directed to pay ValcourtWilliams temporary total disability benefits, along with penalties 

and interest.

III. JCC Was Correct in Determining a Neutral Risk

I first address the E/C’s argument that the JCC erred in 

finding that the accident arose out of Valcourt-Williams’s 

employment because the risk of injury created by her dog was 

entirely personal and had no cognizable relationship to her 

employment. The en banc majority’s opinion discusses this 

argument but in its ultimate holding goes well beyond what the 

E/C argued. Because the relevant facts are undisputed, the issue 

is a question of law, which is reviewed de novo. See Airey v. WalMart/Sedgwick, 24 So. 3d 1264 (Fla. 1st DCA 2009).

Section 440.09(1), Florida Statutes (2016), states in part, 

“The employer must pay compensation or furnish benefits 

required by this chapter if the employee suffers an accidental 

compensable injury or death arising out of work performed in the 

course and the scope of employment.” I begin with a recognition 
13

that the analysis here should be unaltered by the fact that 

Valcourt-Williams’s workplace was a non-traditional one. The 

personal comfort doctrine is a long-standing acknowledgement 

that, during a work day, an employee engaging in personal 

comfort activities, such as a refreshment break, benefits the 

employer so long as the activities are incidental to the 

performance of work activities. As we stated in Harding, “a 

worker’s attendance to personal comfort during a refreshment 

break is conducive to the facilitation of the employment.” 653 So. 

2d at 1142 (quoting Holly Hill Fruit Prods., Inc. v. Krider, 473 So. 

2d 829, 830 (Fla. 1st DCA 1985)). A worker remains in the course

and scope of employment while attending to matters covered by 

the personal comfort doctrine. Harding, 653 So. 2d at 1141-42. 

However, to satisfy the “arising out of work” requirement of 

section 440.09(1), the personal comfort doctrine applies only 

when there is a work-related or neutral risk. Southern Bell Tel. 

& Tel. Co. v. McCook, 355 So. 2d 1166 (Fla. 1977) (approving the 

personal comfort doctrine but holding that injury sustained by 

claimant attending to personal comfort is not compensable if 

workplace provided none of the risk and did not otherwise 

contribute to injury). If there is a work-related or neutral risk, 

then the injury is one “arising out of work.” 

We have discussed the three categories of risks causing 

workplace injuries as follows:

[R]isks distinctly associated with the employment, risks 

personal to the claimant, and “neutral” risks—that is, 

risks having no particular employment or personal 

character. Griffith v. Budget Rent-A-Car Systems, Inc., 

692 So. 2d 294, 296 (Fla. 3d DCA 1997) (quoting A. 

Larson, The Law of Workmen’s Compensation § 7.00 

(1984)). Harms from risks peculiar to employment are 

universally compensable. Id. Harm caused by personal 

risks are universally noncompensable. Id. It is within 

the third category (neutral risks) that most controversy 

in modern compensation law occurs. Id.

Hamlin, 69 So. 3d at 1069-70. Therefore, compensable personal 

comfort cases must meet a three-part test, which we stated in 

Hamlin as follows:
14

(1) The activity has been a traditional or routine part of 

the work place experience (incidental to work);

(2) The employee’s participation in activity of this type 

has been held to benefit the employer by producing a 

refreshed employee; and 

(3) The injury results from either a work created risk or 

a neutral risk.

Id. at 1072. 

Here, the E/C contends that the injury suffered was a result 

of a personal risk. Yet, Valcourt-Williams’s injury passes all 

three parts of the Hamlin test. First, her coffee break was an 

activity that is a routine part of the workplace experience, and 

the JCC found that she was on a work break as permitted by 

Sedgwick. Second, Valcourt-Williams’s undertaking a break was 

a benefit to Sedgwick. The JCC found “that taking a break to get 

something to drink during normal working hours has a 

relationship to her work and is a necessary function of her being 

able to continue to work for 8 hours during the day.” Third, the 

injury resulted from a neutral risk. The JCC found that tripping 

over the dog was “no different than if she had slipped on a liquid 

substance on the floor, on a lose [sic] kitchen floor mat, or over 

her own two feet.” The JCC’s finding is consistent with decades 

of our case law which holds a trip and fall in the workplace to be 

compensable so long as it was not caused by a claimant’s 

idiopathic or preexisting condition.3 See Ross v. Charlotte Cty. 

Pub. Sch., 100 So. 3d 781 (Fla. 1st DCA 2012) (fall due to foot 

caught in linoleum flooring compensable); Walker v. Broadview 

Assisted Living, 95 So. 3d 942 (Fla. 1st DCA 2012) (foot slip while 

walking the hallway compensable); Caputo v. ABC Fine Wine & 

Spirits, 93 So. 3d 1097 (Fla. 1st DCA 2012) (fall with resulting 

head injury such that claimant did not know how the accident 

 3 Hence workplace fainting, as mentioned by the en banc 

majority, or any other idiopathic or preexisting condition 

personal to a worker, does not arise out of employment and is 

therefore not compensable. 
15

occurred compensable); Lanham v. Dep’t. of Envtl. Prot., 868 So. 

2d 561 (Fla. 1st DCA 2004) (trip and fall on a sidewalk a quarter 

of mile from work while taking a walk on a paid break 

compensable); Citrus Mem’l. Hosp. v. Cabrera, 388 So. 2d 345 

(Fla. 1st DCA 1980) (slip and fall in the workplace restroom 

compensable). 

It is essential to the analysis that Valcourt-Williams was no 

more engaged with her dog when she tripped than she would 

have been, for instance, with a briefcase, backpack, purse, gym 

bag, or even her own shoes had she tripped over any of those 

items instead — all of which are employee-owned property 

commonly brought into the workplace. The JCC recognized as 

much when he noted that had Valcourt-Williams been playing 

with her dog, the injury would not have been compensable.4 It is 

foreseeable that an employee will bring or attempt to bring the 

employee’s own personal property, not otherwise prohibited by 

the employer, into the workplace and that the property or the 

attempt to procure the property may create a neutral risk 

resulting in a compensable injury. See Harding, 653 So. 2d at 

1142 (injury from off-premises automobile accident on a break 

during working hours while attempting to get food or cigarettes 

compensable); Louis v. Louis’s Amoco, 534 So. 2d 417 (Fla. 1st 

DCA 1988) (employee’s injuries from drinking contaminated soft 

drink purchased from employer compensable); Krider, 473 So. 2d 

at 830 (injury to claimant struck by automobile while walking 

across road to purchase cigarettes on break during work hours 

compensable); Baker v. Orange Cty. Bd. of Cty. Comm’rs, 399 So. 

2d 400 (Fla. 1st DCA 1981) (injury from battery operated socks 

claimant wore to ward off frostbite compensable). 

Other states have considered workplace falls over personal 

property and found them to be compensable under workers’ 

 4 The risk here that is compensable is the neutral risk of a 

workplace trip and fall. Had the Claimant been bitten by her 

dog, the risk to be considered would have instead been the risk of 

an attack by her dog — presumably a personal risk in most 

workplaces. 
16

compensation. In McBride v. Midwest Estate Buyers, LLC, No. 

93A02-1612-EX-2920, 86 N.E.3d 452 (table), 2017 WL 2492774 

(Ind. Ct. App. 2017), a jewelry store clerk tripped and fell when 

the zippers on the inside of her boots hooked together. The court 

in McBride discussed the same three categories of risks we 

considered in Hamlin. McBride at *2. In McBride, there was no 

pre-existing illness or condition involved, thus, the fall was not 

caused by McBride’s personal risk. Id. Rather, the appellate 

court reasoned, in reversing the compensation board’s denial of 

compensability, that

[a]lthough her choice of clothing and footwear is a 

personal choice and in this case was not dictated by 

company policy, an employee of a fine jewelry store 

would certainly be required to wear some form of 

footwear. Further, McBride testified she often dressed 

up and tried to look stylish for her work which involved 

meeting with customers. Therefore, we think McBride’s 

case falls within the third category, those risks neither 

distinctly employment related nor distinctly personal in 

character.

Id. at *3.

In Sandberg v. JC Penney Co., 260 P. 3d 495 (Or. Ct. App. 

2011), claimant was injured while working in her home when she 

tripped over her dog while going to the garage to retrieve fabric 

samples for work. The controversy, like our situation here, 

focused on the requirement that the injury arise out of and occur 

in the course of employment. The court noted that while 

working, the claimant’s home environment became her work 

environment. 260 P.3d at 500. Quoting Larson’s Workers’ 

Compensation Law, the court noted that “the hazards of home 

premises encountered in connection with performance of the work 

are also hazards of the employment.” Sandberg, 260 P.3d at 500

(quoting Arthur Larson and Lex K. Larson, 1 Larson’s Workers’ 

Compensation Law § 16.10 [4], 16-37 (2009)). The court also 

noted that “although the employer may not have had control over 

claimant’s dog, it had control over whether claimant worked 

away from the studio.” Sandberg, 260 P.3d at 500. The court 

concluded by analogizing that if “claimant tripped over a dog and 
17

injured herself while meeting with a customer in the customer’s 

home, her injury would arise out of her employment,” so injuring 

herself by tripping over the dog while working at home as a 

requirement of employment also arose out of work. Sandberg, 

260 P.3d at 501.

When neutral risks result in workplace injuries, the personal 

comfort doctrine instructs that those injuries will be found 

compensable because an employee attending to personal comfort 

“is conducive to the facilitation of the employment.” Krider, 473 

So. 2d at 830-31. Cf. Galaida v. AutoZone, Inc., 882 So. 2d 1111, 

1113 (Fla. 1st DCA 2004) (explaining that “[b]eing exposed to a 

firearm, however, is not a foreseeable consequence of an 

authorized cigarette break, especially when the possession of a 

firearm is strictly prohibited by the employer. Moreover, 

Galaida’s possession of a firearm, in violation of his employer’s 

policy, was not conducive to the employer’s interests.”).5 

 5 As we stated in Galaida, “The personal comfort doctrine 

incorporates a foreseeability element to the cause of injury.” Id.

at 1112. Given, Ross, Walker, Caputo, Lanham, and Cabrera, 

among other cases, it is clearly foreseeable that an employee 

would trip and fall in the workplace. If the foreseeability is 

focused on dogs or other pets, as Judge Makar discusses in his 

dissent, it is clearly foreseeable that an American household 

would have a common house pet. Dissenting op. at 34 (Makar, 

J.). The foreseeability of the presence of a dog here may have 

changed had it been banned by Sedgwick, as the employer 

banned the firearm in Galaida, but dogs were not prohibited by 

Sedgwick. 
18

IV. Majority Goes Beyond What E/C Sought

In arguing that we should reverse the JCC, the E/C claimed 

only that Valcourt-Williams’s risk of tripping over her dog was a 

personal risk under the Hamlin framework. The E/C had 

previously made the personal risk argument before the JCC. As 

set forth above, I disagree with the E/C’s argument. But if the 

court were to adopt the E/C’s contention and hold that the 

presence of a dog was a personal risk akin to the firearm in 

Galaida that would not cause a paradigm shift in Florida 

workers’ compensation law. I respectfully submit that the en 

banc majority has gone beyond what the E/C has sought, has 

upended the long-standing personal comfort doctrine, and has 

now defined “occupational causation” in “arising out of” to mean 

only “directly caused by” engaging in the core functions of 

employment. See § 440.02(36), Fla. Stat. 

Barring fundamental error, we can only reverse on what is 

argued below. Davis v. State, 136 So. 3d 1169 (Fla. 2014); 

Williams v. State, 213 So. 3d 1123 (Fla. 1st DCA 2017). Further, 

we cannot reverse on a ground not argued on appeal. See I.R.C. 

v. State, 968 So. 2d 583, 588 (Fla. 2d DCA 2007) (noting that to 

reverse based on grounds not argued by the appellant would be 

“at odds with the structure of the appellate process which 

requires that a reviewing court ordinarily reverse only on the 

basis of the specific arguments presented by the appellant”). As 

the above quotation from the JCC’s decision shows, the issue he 

considered was the nature of the risk under our Hamlin

framework. Neither before the JCC nor before our court did the 

E/C argue that our “arising out of” jurisprudence was wrongly 

decided and needed to be discarded en banc and en masse. 

Part of the problem with the en banc majority’s reasoning is 

the majority opinion at times mixes “course and scope of 

employment” with “arising out of.” The majority claims that to 

hold for Valcourt-Williams, “we would have to hold that an 

employee’s tripping over her own dog at home on a Friday is 

attributable to risks of employment while the same employee’s 

tripping over the same dog at the same home on a Saturday is 

not.” Majority op. at 5. Yes, we would, and we should. But this 

is a course and scope of employment consideration. If injured 
19

during a break from work during the workday, under the 

personal comfort doctrine the employee remains in the course and 

scope of employment. Lanham, 868 So. 2d at 563. This is so 

regardless of whether the injury occurs on or off the employer’s 

premises. Id. If an employee is injured outside of the workday, 

then barring various exceptions not applicable here, the employee 

is not in the course and scope of employment, so the injury is not 

compensable. See Fidelity & Cas. Co. of New York v. Moore, 196 

So. 495, 496 (Fla. 1940) (holding that generally, “the injury must 

occur within the period of the employment”). 

Of course, although not addressed by the majority, “arising 

out of” and “course and scope” “are part of a single test, such that 

the strength of one element may cure the weakness of the other.” 

Grenon v. City of Palm Harbor Fire Dist., 634 So. 2d 697, 699 

(Fla. 1st DCA 1994). “The phrase ‘arising out of’ refers to the 

origin of the cause of the accident, while the phrase ‘in the course 

of employment’ refers to the time, place and circumstances under 

which the accident occurs.” Id. (citing Bituminous Cas. Corp v. 

Richardson, 4 So. 2d 378 (Fla. 1941)). 

The majority opinion puts at risk many established doctrines 

of Florida workers’ compensation by interpreting “occupational 

causation” in “arising out of” to only mean directly performing 

work. See § 440.02(36), Fla. Stat. We considered this exact issue 

in upholding the “premises rule” in Vigliotti v. K-Mart Corp., 680 

So. 2d 466 (Fla. 1st DCA 1996). The premises rule provides 

workers’ compensation benefits to employees who are “off the 

clock” and not actually engaged in work, but who are preparing 

for or departing from work when injured on the employer 

premises. In Vigliotti, we stated: 

We have considered carefully K-Mart’s contention 

that the phrase “work performed” must be construed to 

include only actual performance of primary job duties by 

an employee. As previously noted, this construction 

would broaden the potential tort liability for every 

employer in Florida. Moreover, this construction would 

contravene the legislative intent to ensure the prompt 

delivery of benefits to the injured worker by an efficient 

and self-executing system. § 440.015, Fla. Stat. Indeed, 
20

K-Mart’s construction would lead to expensive and time 

consuming judicial inquiry in a broad range of cases 

that are now undoubtedly handled administratively 

without the intervention of attorneys. Scenarios 

discussed in the briefs and at oral argument included a 

roofer injured while climbing down a ladder at the end 

of his shift and a clerical worker injured while taking a 

restroom break. Under K-Mart’s view, employers would 

be completely free to argue in such cases that work 

performed did not contribute to the injury, and hearings 

would then be required on this issue. Such a procedure 

would be neither efficient nor self-executing.

Vigliotti, 680 So. 2d at 467.

The majority rationale also calls into question, without being 

able to overturn, the “bunkhouse rule” approved by the Florida 

Supreme Court. See Wilson Cypress Co. v. Miller, 26 So. 2d 441 

(Fla. 1946). The bunkhouse rule instructs “that when the 

contract of employment contemplates that the employee shall 

sleep on the employer’s premises, as an incident to the 

employment, and is injured while not engaged on a purely 

personal mission, the injury is compensable.” Id. at 442. There 

Miller was sleeping on his employer’s houseboat when killed in a 

fire. Id. at 441. Clearly, Miller was not engaged in work at the 

time, nonetheless the Florida Supreme Court found his death 

compensable. Id. The majority rationale would also call into 

question the “horseplay doctrine” which holds compensable those 

injuries resulting from “an insubstantial deviation . . . which does 

not necessitate the complete abandonment of the employment 

and the concentration of all energies for a substantial part of the 

working time.” Boyd v. Florida Mattress Factory, Inc., 128 So. 2d 

881, 882 (Fla. 1961). 

Many of the cases cited by the majority in support of the 

argument that Valcourt-Williams’s fall does not “arise out of” 

work are in fact cases where the claimant’s idiopathic condition 

caused the injury. See, e.g., Southern Bell Tel. & Tel. Co. v. 

McCook, 355 So. 2d 1166 (Fla. 1977) (congenital abnormality in 

lower back); Acker v. Charles R. Burklew Constr., 654 So. 2d 1211 

(Fla. 1st DCA 1995) (preexisting degenerative arthritis); 
21

Medeiros v. Residential Cmtys. of Am., 481 So. 2d 92 (Fla. 1st 

DCA 1986) (dizziness from a prior non-work-related automobile 

accident); Grenon (aggravation of preexisting back injury); Leon 

Cty. Sch. Bd. v. Grimes, 548 So. 2d 205 (Fla. 1989) (fall caused by 

leg brace worn due to polio). There was no argument here that 

the fall was caused by Valcourt-Williams’s preexisting knee 

surgeries. Even as to idiopathic falls, there is an exception not 

applicable here under which injuries from falls are found to arise 

out of employment if “the injuries from the fall can be attributed 

to some increased hazard attendant to the job such as where the 

fall is onto dangerous objects.” Foxworth v. Fla. Indus. Comm’n, 

86 So. 2d 147, 151 (Fla. 1955); see also Duval Cty. Sch. Bd. v. 

Golly, 867 So. 2d 491 (Fla. 1st DCA 2004). 

The majority incorrectly cites the exception applicable to 

idiopathic conditions mentioned in Golly as if it was the rule. 

Majority op. at 4. But in Walker we recognized that only if a 

personal or idiopathic condition is involved is it necessary for 

“claimants to establish that ‘the employment itself created the 

hazard of the risk.’” 95 So. 3d at 943 (quoting Hernando Cty. v. 

Dokoupil, 667 So. 2d 275, 276 (Fla. 1st DCA 1995)).6 If an 

idiopathic or preexisting injury is not involved, then it does not 

matter that the injury could have also occurred had the employee 

not been at work. “Only if the employer and carrier have 

satisfied that burden of proof [that an idiopathic or preexisting 

condition was involved] is it appropriate for the JCC to hold the 

claimant to the more stringent standard for compensability . . . to 

establish that the employment exposed the claimant to risk of 

 6 Furthermore, had the majority provided a complete 

quotation from Metropolitan Dade County v. Russell, 637 So. 2d 

69 (Fla. 1st 1994), this point would have been demonstrated. 

Majority op. at 7. In Russell we said, “If the JCC finds that 

Claimant has an idiopathic condition, then before the causal 

connection can be found and the work injury deemed 

compensable, the JCC specifically must find also that Claimant 

demonstrated that the injury resulted from an effort, exertion, 

risk, or strain beyond that which is normally encountered in 

Claimant’s non-employment life.” Id. at 70 (emphasis added). 
22

injury greater than the employee would normally encounter in 

non-employment life.” Bryant v. David Lawrence Mental Health 

Ctr., 672 So. 2d 629, 631 (Fla. 1st DCA 1996). The majority 

opinion discards this well-stated holding from Bryant. 

In Ross, we wisely rejected a JCC’s conclusion that “because 

Claimant could not establish an increased risk of harm associated 

with her employment . . . Claimant could not establish that the 

injury arose out of employment because the accident could have 

happened elsewhere.” 100 So. 3d at 782. We held that such a 

conclusion would implicate section 440.10(2), Florida Statutes, 

which provides that, absent narrow exceptions, “[c]ompensation 

shall be payable irrespective of fault as a cause for the injury.” 

Again citing Walker, we stated, “Thus, in the absence of any 

medical evidence to establish the existence of a pre-existing 

condition, it was not necessary for Claimant to show an increased 

risk of harm associated with her employment in order to 

establish the causal connection between her employment and her 

accident.” Ross, 100 So. 3d at 782-83. 

The majority also discredits the personal comfort doctrine 

without being able to explicitly overrule it since the doctrine was 

approved by the Florida Supreme Court in McCook. There the 

Court stated, “The fact that McCook was attending to a personal 

matter at the time of the accident is irrelevant, since it was 

incidental to employment and therefore a matter within the 

‘personal comfort doctrine.’” 355 So. 2d at 1168, n.2 (citing 1 A. 

Larson, The Law of Workmen’s Compensation s. 12.00 (1972)). 

The approval of the personal comfort doctrine under Florida law 

seems to be rooted in the Florida Supreme Court’s recognition 

that an employee is in the course and scope of employment if the 

employee is “reasonably fulfilling the duties of this employment 

or engaged in doing something incidental to it.” Fidelity & 

Cas. Co. of New York v. Moore, 196 So. 495, 496 (Fla. 1940) 

(emphasis added). The majority’s narrow definition of 

occupational causation is contrary to the Florida Supreme Court 

approving coverage for injuries arising from incidental causes. 

Many of the injuries which we have previously found 

compensable could have just as easily occurred outside of work. 

Under the majority’s rationale these injuries would not be 
23

compensable, contrary to our holdings in Caputo, Walker, and 

Ross, because the risk does not flow only from employment. 

Majority op. at 6-7. Since most employees walk, whether on or off 

the job, under the majority’s view no workplace slip and fall 

would be compensable. Since all humans must eat, drink, and 

excrete, whether on the job or off, any break from an employee’s 

occupation for personal comfort would not be compensable. In 

fact, in most occupations, many of the functions of daily work life 

are also performed outside of the workplace. Office workers 

complete paperwork at home. Restaurant workers cook and 

serve food at home. Childcare workers care for children at home. 

Even many blue-collar workers perform similar work at home —

autoworkers fix their own cars, custodians clean their own 

homes, shop workers engage in their trade as hobbyist or 

volunteers. By limiting compensability of a workplace injury to 

only those injuries which narrowly flow directly from the 

employment, the majority has overturned (or at least attempted 

to overturn) over forty years of case law, disregarded the settled 

definition of “arising out of,” and severely limited the benefits of 

workers’ compensation.

Uncertainty has undoubtedly been injected into the workers’ 

compensation system by the majority’s holding. Are the personal 

comfort and other long-established doctrines of workers’ 

compensation law extant or extinct after today? I think these 

doctrines survive since they spring from the Florida Supreme 

Court; but how should the majority’s narrow interpretation of 

occupational causation be seen by a claimant, employer, claim’s 

adjuster, attorney, or JCC? Markets crave certainty, and the 

Florida workers’ compensation system is a huge market.7 By the 

 7 “In 2017, 242 privately-owned insurers actively wrote 

workers’ compensation insurance in Florida. In total, private 

sector insurers wrote $3,183,302,670 in premium.” 2018 Workers’

Compensation Annual Report, Florida Office of Insurance 

Regulation, 

https://www.floir.com/siteDocuments/2018WorkersCompensation

AnnualReport.pdf (last visited March 26, 2019). 
24

majority’s opinion we have injected substantial uncertainty in the 

multibillion-dollar Florida workers’ compensation marketplace.

V. Potential Impact of Loss of Exclusivity of Remedy

The Grand Bargain of workers’ compensation provides a 

great benefit to employers and co-employees in mandating the 

statutory benefits provided by workers’ compensation as the 

exclusive benefits an employee can receive for accidental injury 

from a covered employer. See § 440.11, Fla. Stat. But for 

workers’ compensation protection, exclusivity of remedy would 

not be present, and an employee could sue the employer and coemployees for negligence. See Fidelity & Ca. Co. of N.Y. v. 

Bedingfield, 60 So. 2d 489 (Fla. 1952). 

By disclaiming workers’ compensation coverage (or more 

likely its workers’ compensation carrier disclaiming coverage), 

the employer may be opening itself and its employees to tort 

liability. In Schroeder v. Peoplease Corp., 18 So. 3d 1165 (Fla. 1st 

DCA 2009), this court determined that a genuine issue of 

material fact existed as to whether the employer’s notice of denial 

of workers’ compensation benefits precluded the employer from 

asserting an immunity defense. “Whether estoppel is appropriate 

in this case and whether the employer took irreconcilable 

positions is dependent upon the meaning to be accorded the 

notice of denial.” Id. at 1170. More recently, the Third District 

affirmed the trial court’s denial of a motion for summary 

judgment based upon the defense of workers’ compensation 

immunity where the carrier denied benefits on grounds that the 

employees’ injuries were not the result of an accident in the 

course and scope of their employment. Ocean Reef Club, Inc. v. 

Wilczewski, 99 So. 3d 1 (Fla. 3d DCA 2012).

The Fifth District agrees. In Byerley v. Citrus Publishing, 

Inc., 725 So. 2d 1230 (Fla. 5th DCA 1999), the court concluded:

Thus, to permit an employer to deny benefits then 

later assert immunity because the employee is entitled 

to benefits would be to render this statutory provision [§ 

440.11, Fla. Stat.] meaningless. In this case, the notice 

of denial stated that Byerley’s injury was not covered 
25

because it did not occur in the course and scope of her 

employment, Byerley accepted and relied on the denial, 

bore her medical expenses, then sued the employer in 

tort as permitted by the statute. Here, the elements of 

estoppel are shown, and therefore, the employer is not 

entitled to summary judgment on the basis of the 

Workers’ Compensation Act.

Id. at 1232-33; see also Gil v. Tenet Healthsystem N. Shore, Inc., 

204 So. 3d 125 (Fla. 4th DCA 2016). 

Here, even though Valcourt-Williams would likely not have a 

tort cause of action, if we eliminate compensability for workplace 

slip and falls — injuries incidental but not directly caused by 

employment — other employees who suffer workplace injuries 

which are no longer compensable would likely be able to sue. 

Clever attorneys could bring civil actions against employers for 

workplace falls caused by tripping over another’s property, failing 

to provide safe footwear, failing to have non-skid flooring, failing 

to inspect, failing to maintain the premises, and the myriad of 

other grounds asserted for premises liability. 

Additionally, eliminating compensability for workplace slip 

and falls opens the possibility of an injured worker suing fellow 

employees. Those fellow employees are currently immune from 

suit for negligence under section 440.11(1), Florida Statutes. If 

exclusivity does not apply, it is easy to imagine a cause of action 

arising out of a fellow employee’s spilt beverages, bags or other 

obstacles left on the floor, a foot sticking out from behind a desk, 

or accidental jostling. In absence of workers’ compensation 

exclusivity, one could see many situations where a fellow 

employee risks tort liability for automobile accidents. See, e.g. 

Abraham v. Dzafic, 666 So. 2d 232, 233 (Fla. 2d DCA 1995) 

(finding a co-worker was immunized from suit for automobile 

negligence where both co-workers were traveling from a jobsite 

“to the same hotel for rest and relaxation”).8

 8 Furthermore, bring your child to work days and bring your 

pet to work days would seem to be especially fraught with the 
26

Today the majority opinion potentially eliminates the many 

benefits of workers’ compensation and substitutes the 

uncertainty of tort claims.9 We wisely chose not to take that 

action 23 years ago in Vigliotti when confronting what was then a 

new statutory definition of “arising out of,” and nothing has 

changed since. In Vigliotti, we expressed concern that to 

construe “arising out of” as the majority does today “would result 

in claimants . . . bringing suit in tort against their employers for 

injuries they have suffered during work hours, while they are on 

the employers’ premises, but when they are not literally 

performing work.” 680 So. 2d at 487. Today the majority charts 

a course towards uncertainty and away from the Legislative 

intent “to assure the quick and efficient delivery of disability and 

medical benefits to an injured worker and to facilitate the 

worker’s return to gainful reemployment at a reasonable cost to 

the employer.” § 440.015, Fla. Stat. (2016).

VI. Conclusion

Because the risk Valcourt-Williams encountered when she 

was attending to her personal comfort on her refreshment break 

was a neutral risk of a workplace trip and fall, she met her 

burden to prove that her accident arose out of and in the course 

and scope of her employment and was therefore compensable. 

Because the majority reverses and goes far beyond what the E/C 

sought in overturning or otherwise questioning many established 

workers’ compensation cases, and in doing so opens employers 

and co-employees to tort liability, I respectfully, but strongly, 

dissent.

 

possibility of co-employee lawsuits under the majority’s change to 

the meaning of “arising out of.” 

9 Undoubtedly some injured workers would be happy for the 

substitution. The potential damages for tort claims include noneconomic damages such as pain and suffering, emotional distress, 

and loss of consortium which are not present as Florida workers’ 

compensation benefits. 
27

MAKAR, J., dissenting.

I join Judge Bilbrey’s opinion, which explains why 

jurisprudential change is unwarranted in this “trip-and-fallduring-a-personal-comfort-break” case, which ought to be 

affirmed based on the thorough factual findings and thoughtful 

legal analysis in the JCC’s final summary order (see Appendix). A 

few points merit mention.

To begin, the only issue in this workers’ compensation case is 

whether the workplace accident that occurred during an 

authorized comfort break arising from an authorized work-athome arrangement is compensable. As fate would have it, the 

employer is a workers’ compensation claims processing company, 

Sedgwick Claims Management Services, Inc. (“Sedgwick”), and 

the employee, Tammitha Valcourt-Williams (“V-W”), is an 

experienced workers’ compensation account claims adjuster. 

Sedgwick and V-W entered into a Telecommuting/Remote Work 

Agreement for V-W to continue working for the company from her 

new home in Arizona, from 4:00am-12:30pm PST, to match the 

normal workday hours in Sedgwick’s home office in Lake Mary, 

Florida, where she’d been working. In Arizona, V-W worked from 

one of her townhome’s upstairs bedrooms, which she dedicated 

entirely to her work for Sedgwick, and furnished with a desk, 

chair and other office equipment at her own expense; Sedgwick 

provided the computer.

On April 27, 2016, V-W took a mid-morning break, walked 

downstairs to her kitchen, and tripped and fell while making 

an instant cappuccino.1 No dispute exists that Sedgwick 

permitted its employees to take personal comfort breaks, that VW was on an authorized personal comfort break in a location in 

her home where a break was allowable (her kitchen), and that 

 1 During the pendency of her workers’ compensation claim,

V-W emailed her fact pattern (without identifying it was her 

situation) to defense counsel that the carrier had used in the past 

who opined that it was compensable (“Unfortunately, this 

appears to be a compensable claim, based on these facts.”).
28

she was engaging in a permissible activity (making a beverage) 

when the trip and fall occurred. An accidental slip and fall under 

such workaday circumstances is generally compensable—whether 

it occurred in Sedgwick’s Lake Mary home office or in V-W’s 

home office—under the personal comfort rule. Sentry Ins. Co. v.

Hamlin, 69 So. 3d 1065, 1072 (Fla. 1st DCA 2011) (“The courts 

have consistently awarded benefits to accidental injuries suffered 

while an employee is engaging in personal comfort activities, 

based on the rationale that such activities provide a benefit to the 

employer and are reasonably incidental to the performance of 

work activities.”). As this Court held in Hamlin, an employee who 

engages in acts of “personal comfort such as eating a snack, 

smoking, or taking a restroom break” engages in “an activity that 

the law deems as incidental to work” and thereby arising from 

the work itself. Id. For example, injuries to a worker who is hit by 

a car while walking across the street to a convenience store are 

compensable because an “off-premises trip . . . motivated by a 

desire to purchase cigarettes . . . was a foreseeable and nonprohibited refreshment break activity.” Holly Hill Fruit Prods.,

Inc. v. Krider, 473 So. 2d 829, 830 (Fla. 1st DCA 1985); cf.

Hamlin, 69 So. 3d at 1072 (worker who was injured by a tow 

truck attempting to repossess his car from the employer’s parking 

lot, was deemed to not be on a personal comfort break and 

thereby denied coverage).

Given this background, the question of “exceptional 

importance” in this en banc hearing involving the personal 

comfort rule is whether V-W tripping over her Shih Tzu—versus 

her handbag, a kitchen chair, an open cabinet drawer, a 

newspaper, spilled coffee/milk, a space heater, a rug/floor mat, a 

doorsill, a Roomba,® untied shoelaces, a power cord/computer 

cable, a banana peel, a recycling bin, a pet water bowl, her son’s 

schoolbooks or spattered oil from her husband cooking breakfast,2

a loose floorboard or uneven tile, a trash can or bag, or her own 

feet while reading an email on her cellphone—renders her claim 

 2 V-W lives with her husband (a professional cook) and a 14-

year old son along with a 50-pound Husky, a 22-pound Shih Tzu, 

and a cockatoo.
29

per se non-compensable. See Fla. R. App. P. 9.331(a) & (c) (2019) 

(“En banc hearings and hearing” impermissible “unless the case 

or issue is of exceptional importance”) (“A hearing en banc may 

be ordered only by a district court of appeal on its own motion.”); 

IOP 6.4 (2019). 

To resolve this case, the key factual inquiry is whether 

Sedgwick prohibited dogs in the home work environment and, if 

not, was it foreseeable that an accident of this type might arise in 

a personal comfort break. In this regard, it has been noted that 

“[e]very ‘personal comfort’ case accepted as compensable by [this 

Court] has met three prongs:

(1) The activity has been a traditional or routine 

part of the work place experience (incidental to 

work);

(2) The employee's participation in activity of this 

type has been held to benefit the employer by 

producing a refreshed employee; and

(3) The injury results from either a work created 

risk or a neutral risk.”

Hamlin, 69 So. 3d at 1072. Because the first two prongs are met 

in this case, the remaining issue is whether the record evidence 

establishes that the trip and fall was due to a work-related or 

neutral risk. Id. (“The personal comfort rule only applies when 

there is either a work-related, or neutral risk.”). Work-related 

risks are those directly associated with the work performed, such 

as risks of injury from dangerous or malfunctioning machines, 

risks of increased occupational diseases, and the like. Neutral 

risks are neither entirely work-related nor directly related to an 

employee’s personal idiopathic health deficiencies; they are risks 

common to employees, such as motor vehicle accidents, slips on 

wet surfaces, falls on stairs, and so on.

Trips, slips, and falls are consistently among the top twothree causes of workplace injuries and workers compensation 
30

costs.3 They are inherent in the workplace, whether it is a 

company’s home office, a field office, a work-at-home office, or an 

off-premises location where a non-prohibited refreshment break 

occurs. The neutral risk of a fall exists in each of these locales 

during a personal comfort break and is thereby work-related. Not 

every injury that occurs during a personal comfort break is 

compensable, of course, but slip and falls typically are because of 

the control that employers have over the time, place, and manner 

of work breaks; the neutral nature of slips and falls; and the 

foreseeability test that weeds out implausible or questionable 

scenarios. See Galaida v. Autozone, Inc., 882 So. 2d 1111, 1113 

(Fla. 1st DCA 2004) (employee who brought a gun onto 

employer’s premises and accidentally shot himself during a 

cigarette break was not a “foreseeable consequence” to which 

compensability applies under personal comfort rule). It is 

expected that persons who are allowed to work from their homes 

will take periodic breaks and may suffer compensable injuries 

from falls arising from a range of causes. The exceptions to 

compensability in these situations are where (a) an employee has 

a personal idiopathic health condition or some other disqualifying 

pre-existing personal factor that caused her injury, Medeiros v.

Residential Communities of Am., 481 So. 2d 92, 93 (Fla. 1st DCA 

1986) (“When a claimant suffers from an idiopathic, or preexisting, condition which results in injury, the injury is 

compensable only if the claimant can show that it ‘arose out of’

his employment.”); (b) the risk is one the employer controls and 

has prohibited, Galaida, 882 So. 2d at 1112-13 (noting that to 

cross the street to purchase cigarettes was a “non-prohibited 

refreshment break,” but that firearm causing injury was “strictly 

prohibited”); or (c) the risk encountered during the break is 

unforeseeable, Id. at 1112 (“The personal comfort doctrine 

incorporates a foreseeability element to the cause of injury.”). 

 

 3 See National Safety Council, Injury Facts, Top Work-Related 

Causes, https://injuryfacts.nsc.org/work/work-overview/top-workrelated-injury-causes/ (last visited March 26, 2019); National 

Safety Council, Injury Facts, Workers’ Compensation Costs, 

https://injuryfacts.nsc.org/work/costs/workers-compensationcosts/ (last visited March 26, 2019).
31

Only the latter two factors—foreseeability and employer 

control—are at issue in this case.

Let’s first look at employer control of the home work 

environment. Sedgwick’s pro forma telecommuting agreement, 

which says the company “considers telecommuting to be an 

appropriate work arrangement,” is slightly over three-pages, 

single-spaced and addresses seven topics: the scope of the 

agreement, the terms and termination of the agreement, 

performance expectations, travel, work environment, equipment 

and supplies, liability and miscellaneous matters. It makes clear 

that telecommuting “is not an entitlement,” is “permitted in 

[Sedgwick’s] sole discretion,” and embodies Sedgwick’s authority 

to control the nature of the arrangement and the work-at-home 

environment.

The agreement, however, says very little about the work-athome environment other than that the employee “must establish 

an appropriate work environment free from distractions within 

his or her home. A professional business environment must be 

maintained that includes, but is not limited to, the elimination of 

background noise” and must not be “a replacement for dependent 

care.” The “home office” itself “must be clean and free from 

obstructions” and the “work station” is to be “designed for safe, 

comfortable work.” Photos of the “work station” might be required 

“for approval” by Sedgwick (who “has the right to monitor 

activity” on all its equipment and communications systems). 

The agreement was silent on all other aspects of the home 

office and its environment, including standards or guidelines for 

bathrooms, kitchens and other places where 

refreshment/personal comfort breaks would occur within the 

home.

Sedgwick, despite its full control over the terms of the 

telecommuting agreement and the conditions of the work-athome environment, asserts that it does not have such power; 

instead, it asserts that it is V-W who has “sole control” over the 

situation. Sedgwick characterizes this case as one in which the 

JCC “declared a personal, uncontrollable, unforeseeable risk” as a 

work-related risk. (Emphasis added). But that’s simply not the 
32

case. Sedgwick had the authority to prohibit all pets, including 

dogs, from the work environment but did not do so. At best, its 

corporate representative testified in deposition only that pets 

were not permitted in the Lake Mary, Florida, office, leaving 

unanswered how Sedgwick handles its telecommuting 

arrangements with each of its work-at-home employees. 

Sedgwick points to the “free from obstruction” language in its 

agreement, but that only applies to the “home office” (which is 

not where V-W fell); Sedgwick also presented no definition or 

interpretation of this term and how an employee would 

understand that it included a dog. More importantly, 

compensable workplace accidents occur even where a fall is over 

an “obstruction”—an employer cannot eliminate the 

compensability of all workplace trips/falls simply by pointing to a 

policy that workspaces must be free of “obstructions.”

Because this case was decided on a final summary order, 

Sedgwick has accepted the JCC’s factual findings without 

challenge; Sedgwick only contests the legal conclusion of 

compensability. The JCC found:

• Sedgwick “had the right to inspect [V-W’s] work 

premises and review her work situation for safety and to 

make sure that she had a comfortable working situation.

• Sedgwick “never did inspect or view her home office setup either in person or by video or photographs.”

• “The Telecommuting Agreement did not limit the 

personal property that the Claimant could have in her 

home. The agreement notably required the office space to 

be free from hazard. Yet there is no evidence of hazard in

the office space to suggest that the claimant was noncompliant with the agreement.” (Emphasis added).

• V-W says “she owned dogs when she worked” in the 

Lake Mary office,” but “whether this is true or not, the 

Telecommuting Agreement does not limit the Claimant's 

ability to own and possess pets in her home office.” 

(Emphasis added).

These factual findings, among others in the order (see Appendix), 

buttress the conclusion that Sedgwick had control over the home 

environment (which it did not exercise) and that Sedgwick failed 
33

to prove that V-W was prohibited from having her personal 

property, including her Shih Tzu, in her kitchen where the 

refreshment break occurred. In essence, V-W’s home environment 

was her work environment, and Sedgwick had the authority to 

control and impose restrictions as to the risk at issue despite its 

failure to do so. Sandberg v. JC Penney Co. Inc., 260 P.3d 495, 

500 (Or. Ct. App. 2011) (holding employer’s claim that it lacked 

control over the risk of a dog in a work-at-home studio “is 

unwarranted because, although the employer may not have had 

control over claimant's dog, it had control over whether claimant 

worked away from the studio.”). The ordinary hazards in an 

employee’s home office, kitchen or bathroom that are encountered 

in connection with a work-related activity, such as a refreshment 

break, are hazards of the employment unless excluded by the 

employer; here, they were not, thereby supporting 

compensability. Moreover, no evidence suggests that V-W 

“imported” a purely personal risk into the workplace, such as an 

idiopathic condition; see Leon County Sch. Bd. v. Grimes, 548 So. 

2d 205 (Fla. 1989) (claimant’s fall, which resulted solely from preexisting personal medical condition, was not compensable); 

instead, Sedgwick authorized the work-at-home arrangement and 

did not exclude a common houseful feature, a dog, from its 

telecommuting agreement and must bear the foreseeable 

consequences.

Next, let’s turn to foreseeability. Was it foreseeable that V-W 

might fall in the way she did, i.e., over her Shih Tzu, during a 

refreshment break? V-W says that Sedgwick knew she had dogs 

in her home because “her dogs [were] a topic of conversation” 

when she worked in Sedgwick’s Lake Mary office. She argued 

that “it is foreseeable that a person who is allowed to work from 

their home will take periodic breaks and may suffer injuries from 

falls regardless of the cause of the fall. Had she fallen on a piece 

of ice that had melted or a plumbing leak or some foreign object 

that was on the floor, this would still be a compensable accident.”

The JCC found that Sedgwick’s telecommuting agreement 

did not preclude pets in the home work environment, which 

makes a trip over a pet an obvious possibility. It’s no different 

than if Sedgwick permitted dogs in its own workplace, for 

example, by allowing comfort/therapy dogs, by providing ADA 
34

accommodations with service dogs (something many employers—

including courts—have done) or by affirmatively embracing the 

dog-at-work experience (as many companies have done, including 

major ones like Amazon, Google, and Ticketmaster). See Brittany 

Shoot, 10 Pet-Friendly Companies Where It's Always Take 

Your Dog to Work Day, FORTUNE (June 22, 2018),

http://fortune.com/2018/06/22/take-your-dog-to-work-day-petfriendly-companies/ (noting that “Take Your Dog to Work Day®” 

is the Friday after Father’s Day). And the prevalence of pets in 

the home is substantial and increasing: A 2017-2018 industry 

survey found that 68% of U.S. households have pets, up from 56% 

in 1988. See Pet Industry Market Size & Ownership Statistics, 

AMERICAN PET PRODUCTS ASSOCIATION, 

https://www.americanpetproducts.org/press_industrytrends.asp 

(last visited Mar. 25, 2019). Of the 84.6 million homes having 

pets, 60.2 million had dogs, which is roughly 48% of all 

households. Id. Cats came in second at 38%. Id. A prior survey in 

2012 found that the percent of households owning dogs was 

36.5%, comprising 69.9 million dogs in 43.3 million homes. See 

U.S. Pet Ownership Statistics, AMERICAN VETERINARY MEDICAL 

ASSOCIATION, https://www.avma.org/KB/Resources/-

Statistics/Pages/Market-research-statistics-US-petownership.aspx (last visited March 21, 2019). Cats, again, were a

close second at 30.4%. Id. These data make clear that employers 

should reasonably foresee that employees have dogs and other 

pets in their homes with their attendant benefits and risks. 

By casting dog ownership as a purely and exclusively 

personal risk that doesn’t “arise out of” employment as a matter 

of law, the Court thereby categorically prohibits coverage for 

workplace accidents even where an employer affirmatively allows 

pets in the workplace. As a result, accidents that occur in 

workplaces with pet-friendly policies are not covered under 

chapter 440 and the injured party’s remedy is a personal injury 

lawsuit against the company, the dog owner, and perhaps others 

involved, which thwarts the point of the workers’ compensation 

system. See generally Taylor v. Sch. Bd. of Brevard County, 888 

So. 2d 1, 5 (Fla. 2004) (“In the ordinary case, when we are faced 

with a situation where an employee is injured on the job there 

exists a natural inference that the injury is covered by the 

Legislature's workers' compensation scheme. That is the 
35

fundamental purpose of the law, to provide benefits for work 

place injuries in place of common law remedies.”). Alternatively, 

employers with pet-friendly policies will have to enter 

indemnification agreements for workplace accidents or obtain 

supplemental insurance coverage, both options raising costs and 

stifling the modern trend that sees multiple benefits for caninefriendly workplaces (such as decreased stress levels, promoting a 

friendlier/relaxed atmosphere, attracting top young millennial 

talent, and so on). Not every business wants or can be petfriendly (due to allergies, unsuitability of some workplaces for 

pets, and like issues), but judicially imposing a per se rule that 

“dogs = personal risk = no coverage” unnecessarily dampens 

workplace innovation and managerial creativity with no upside.

Finally, as Judge Bilbrey points out, this is a “course and 

scope” case, not an “arising out of employment” case. That’s 

because the personal comfort doctrine, by its very nature, arises 

solely out of the need for employers to make allowance for 

authorized breaks to tend to personal needs during the workday; 

it is an exclusively work-related doctrine because it exists solely 

to facilitate the employer-employee relationship during work 

hours. It is casually connected to and originates solely from 

employment. Why else would a personal comfort break of short 

duration be authorized other than to facilitate the employment 

relationship during the workday? One doesn’t take a personal 

comfort break unless one is at work (which explains why V-W 

tripping over her dog on a Saturday/Sunday wouldn’t be 

compensable). And wouldn’t it be an oddity to exclude all 

personal risks from coverage for personal comfort breaks? Most 

items over which V-W might trip and fall in her kitchen or office 

could be dubbed as “personal” because she owns them and uses 

them for her personal benefit (chair, rug, etc.), but that doesn’t 

provide a limiting principle for denying coverage. Instead, the 

better approach is the existing one in personal comfort cases, 

which limits “personal risk” to the defined category of preexisting idiopathic conditions and focuses on the factual findings 

of each case to make an assessment as to whether the risk is a 

“neutral” one the employer allowed/prohibited and the 

foreseeability of the risk.
36

All this said, given that Sedgwick did not limit pets in V-W’s 

work-at-home agreement, made no effort to control risks in the 

kitchen or other areas where home comfort breaks might occur, 

and knew or should have known that V-W had pets at home, the 

foreseeability of a slip and fall over a dog is clear, particularly in 

light of the data on the extent of home pet ownership and the 

growing trend of allowing dogs in the workplace. As the Supreme 

Court said fifty years ago, the “statutory phrase ‘arising out of 

and in the course of employment,’ which appears in most 

workmen's compensation laws, is deceptively simple and 

litigiously prolific.” Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 

469, 479 (1947). This dog-at-work litigation proves this timeworn 

point. Q.E.D.

APPENDIX

OVERVIEW

Ms. Valcourt-Williams, a 53 year old account claims 

adjuster, sustained injuries from a trip and fall accident on 

April 27, 2016 that she maintains occurred within the 

course and scope of her employment with Sedgwick Claims 

Management Services. The accident occurred at her home in 

Sierra Vista, Arizona while she was employed as a remote 

employee for the company under a telecommuting remote 

employment agreement. The E/SA contends that under the 

Telecommuting Agreement entered into between the 

parties, and given the undisputed details of Ms. ValcourtWilliams fall and any alleged injuries, the accident is not 

compensable as a matter of law.

* * *

In regard to the issue on the merits of the Motion for 

Summary Final Order, the Claimant maintains she 

complied with the terms of the Telecommuting Agreement 

and that the accident arose out of and occurred within the 

course and scope of employment consistent with the case law 

governing the personal comfort doctrine. The E/SA submits 

that the accident did not arise out of employment and as 

such its compensability should be denied. Given the 
37

undisputed facts in this case and for the reasons stated 

below I find the claimant's accident of April 27, 2016 is 

compensable and that the Claimant's accident arose out of 

and in the course and scope of her employment.

Claimant was hired by the Employer in 2011 and she 

worked in the Lake Mary office of the Employer until 

December of 2014 when she and the Employer entered into a 

Telecommuting/Remote Work Agreement (hereinafter 

referred to as Telecommuting Agreement). This agreement 

provided that the Claimant would create a work 

environment in her home for the employer. I find her home 

became her office during her regular working hours which 

were from 7am-3pm Lake Mary, Florida time.

Pursuant to the Telecommuting Agreement, Claimant 

converted a room in her town- home to an office specifically 

designated for her adjusting work with Sedgwick. As part of 

her employment, she was required to work specific hours 

and was allowed to take periodic breaks just as though she 

was working in the Sedgwick office in Lake Mary, Florida. 

She was required to be working from 7am to 3pm Lake

Mary, Florida time. Her designated work location was from 

her home in Sierra Vista, Arizona. She was required to set 

up specific equipment, some of which was provided by the 

Employer, in her home and convert some space in her home 

to accommodate the office set up required by the Employer. 

Under the Telecommuting Agreement, the Employer had the 

right to inspect her work premises and review her work 

situation for safety and to make sure that she had a 

comfortable working situation. The Employer never did 

inspect or view her home office set-up either in person or by

video or photographs. The Telecommuting Agreement did 

not limit the personal property that the Claimant could have 

in her home. The agreement notably required the office 

space to be free from hazard. Yet there is no evidence of

hazard in the office space to suggest that the claimant was

non-compliant with the agreement.

The facts are not in dispute. Claimant suffered and 

accident during the course of her employment when she had 
38

taken a mid-morning break to get a cup of coffee. She uses a 

bedroom on the second floor of her two-story townhome as 

her dedicated home office. On April 27, 2016 at 7:00 a.m. 

Pacific Standard time (10:00 Eastern) she suffered her 

accident. According to her un-contradicted testimony the 

Claimant begins work at 4:00 a.m. Pacific Standard time in 

order to work for her employer for its Florida hours of 7:00 

a.m. until 3:30 p.m. Her accident occurred when she left her 

upstairs office and went downstairs to go into the kitchen. 

She retrieved a cup from the cupboard to make some instant 

cappuccino and when she turned around she tripped over 

her dog and fell landing on her right knee and hip 

sustaining according to her, injuries. As to the extent there

may be justiciable controversy as to whether an injury

occurred, such matter is not a proper subject for a motion for 

summary final order and will ultimately be decided from 

consideration of the totality of the evidence produced and 

received at the final hearing.

The accident was reported to her employer immediately 

after she completed making her coffee and returned upstairs 

to her home office. The parties acknowledge that the accident 

occurred during the time period the claimant was to work for 

the employer. Claimant represents that she owned dogs when 

she worked for the Employer in the Lake Mary office from 

2011 through 2014. Regardless of whether this is true or not, 

the Telecommuting Agreement does not limit the Claimant's 

ability to own and possess pets in her home office.

I find the Claimant's April 27, 2016 accident arises out 

of her employment and is therefore compensable. I find the 

fall, which was accidental, occurred during her normal work 

hours and at the time that it did as a result of her 

refreshment break from work for the employer. I find the 

comfort break was reasonable and to be anticipated and

foreseeable by the Employer. The claimant was not in an 

area that she was forbidden to be and was in the kitchen of 

her home which would be similar to the break room at an 

office. The fact that the claimant was allowed to operate out 

of her home, I find that it was reasonably foreseeable to the 

employer that the Claimant would take periodic breaks for 
39

her comfort to attend to personal needs including coffee 

breaks and bathroom breaks. I further find that the 

claimant attending to a reasonable personal comfort needs is 

conducive to the facilitation of the employment. Thus I find 

from the evidence presented no deviation from employment 

and no temporary abandonment of the job can be reasonably 

inferred. I find that her comfort break was not in violation of 

any company rule or was shown in the Telecommuting 

Agreement to be prohibited. Available use of her kitchen and 

bathroom would be necessary to meet her personal comfort 

needs.

I do not find that at the time of her accident the 

claimant was on a purely personal mission having no 

relationship from work nor do I find that the Claimant took 

any affirmative action that took her out of her normal work 

and into a purely personal situation. The facts in this case 

in my opinion are clearly distinguishable from the facts in 

Sentry Insurance Company v.Hamlin, 69 So.3d 1065 (Fla. 1st

DCA 2011). In Sentry, the worker was not pursuing personal 

comfort but rather was on a purely personal mission of

attempting to recover personal items from his vehicle that 

was being repossessed and being towed away at the time of 

his injury. None of the items he was trying to retrieve were 

related to work and he took the affirmative action by going 

into his repossessed vehicle while it was being towed away. 

It was by those personal efforts that the workers' injury was 

caused. He was performing an activity clearly of no benefit 

to the employer whatsoever. The claimant here was 

obtaining refreshment and nourishment to continue in her 

work for the employer.

The E/SA argues that the accident was not a work 

created risk. But this tribunal rejects this argument as 

clearly the Claimant was in the course and scope of her 

employment at a mid- morning break. She was on a work 

permitted break in a "break room" of which the Employer 

either knew or should have known was a place where she 

would getting [sic] something to drink which is permitted 

by her employer. It was a neutral risk as permitted under 

the Sentry Insurance Company case analysis. I find the 
40

Employer imported the risk into the claimant' s home by 

authorizing and permitting a remote office to be 

established with reasonable expectations that comfort and 

refreshment breaks would be required during her eight 

hour work day. The Employer by virtue of the 

Telecommuting agreement imported the work environment 

into the claimant's home and the Claimant' s home into the 

work environment. The Employer's Telecommuting 

Agreement did not restrict the area where she could take 

breaks, where she could use the bathroom or what personal 

property she could keep in her home, including pets. Sy 

Jenkins, the adjuster for the E/SA, admitted that the 

Telecommuting Agreement did not restrict the Claimant' s 

ability to have pets in her home. He further admitted that 

the Employer had the right to inspect and obtain 

photographs of the Claimant's work environment and 

never asked to do either. The Employer created to my mind 

what is tantamount to a satellite office for the Employer 

from which the Claimant was working and with it the risk 

of injury inside the home during normal working hours and 

conditions as long as the Claimant would be within the 

course and scope of her employment.

I find that the claimant was required to get up early 

and work in order to accommodate the employer's schedule 

in Lake Mary, Florida. Therefore she had to get up at 4:00 

a.m. Pacific Standard time (an extremely early time for most 

people) in order to be at work for the employer in Florida at 

7:00 a.m. It was reasonably foreseeable that the claimant 

would have to take comfort or refreshment breaks and the 

logical place with which she could do so was in her home 

kitchen and bathrooms. Such personal comfort activities 

provide a benefit to the employer and are reasonably 

incidental to the performance of her work activities. 

Therefore I find the accident indeed flowed from the 

employment as a natural consequence and that taking a 

break to get something to drink during normal working 

hours has a relationship to her work and is a necessary 

function of her being able to continue to work for 8 hours 

during the day. Bayfront Med. Ctr. v. Harding, 653 So.2d 

1140 (Fla. 1st DCA 1995) I do not find as the E/SA argues 
41

that the Claimant imported the risk into the work place. I 

find the tripping over the dog would be no different than if 

she had slipped on a liquid substance on the floor, on a lose 

kitchen floor mat, or over her own two feet. I find the 

accident would be compensable.

In regard to the above findings I do not find that the 

accident was distinctly and wholly personal in nature. 

Claimant was not carrying out a mission that was purely 

personal and not related to work, incidentally or otherwise. 

Had the claimant been playing with the dog and was injured 

in the process of doing so, then I would find the accident 

would not be compensable, that there would be no job

connectedness and that there would indeed be a deviation 

from employment to otherwise bar compensability. Such was 

not the case here. Thus this case is distinguishable from the 

trial level case of Kimberly Shepherd v. The Pantry, 13-

013620WWA (Decided 12/20/13) that the E/SA offers for my 

consideration. And the facts in this case are also

significantly different from the Sentry case upon which the 

E/SA relies.

In summary I find the claimant complied with the 

Telecommuting Agreement. Her home office (upstairs 

bedroom dedicated as her office) was apparently free of any 

obstructions and included those items required to make the 

office safe and functional. At least there was no evidence 

that it was not. There is no showing that the accident 

actually occurred in the home office because of an 

obstruction therein. Furthermore the agreement does not

exclusively deny all accidents that occur in other areas of the

home which appears to be the suggested argument in the 

E/SA' s motion. The specific language is that, "injuries 

occurring in other locations in Colleague's home ordinarily

will not be covered." As heretofore alluded to, I find it is

reasonable that accidents that occur in the bathroom or

kitchen may be compensable as those areas would be 

necessary for a worker to meet their personal comfort needs.

I find that it would be most illogical for the claimant to leave 

her home in order to meet those personal comfort needs. 

Especially given the claimant gets up as early as 4:00 a.m. 
42

in order to render the adjusting services to her employer in 

Florida. Meeting her personal comfort needs adheres to the 

benefit of the employer and flows from the employment as a

natural consequence. Holly Hill Fruit Products, Inc. v. 

Krider, 473 So.2d 829 (Fla. 1st DCA 1985) It is foreseeable 

that the claimant may want and may need to take a coffee 

break to keep her mind alert and to remain focused in her 

work. It is reasonable to conclude that the claimant who is 

permitted to work from her home would go to her kitchen on 

breaks. I find that she did not leave her work premises at 

the time of the injury as she was in an area in her general 

and necessary work environment. I find there is indeed the 

connection between the Claimant's employment and her 

accident which arose from her employment. I find the 

personal comfort doctrine does apply in this case 

notwithstanding the E/SA' s protestations to the contrary. 

Lastly I find the claimant did not do anything affirmatively 

to cause her accident. It was an unexpected event or result 

that happened suddenly.

I do not find under these facts presented that the 

claimant imported her personal property, the dog, as to 

affirmatively cause this claim to be non-compensable. 

Additionally there is no clear and undisputed evidence that 

there was any personal medical condition of the Claimant 

that caused her fall. As such her fall at this juncture is found 

to be compensable. Walker v.Broadview Assisted Living, 95 

So.3d 942, (Fla.1st DCA 2012)

In order for summary judgment to be granted, there 

must be no genuine issue as to any material fact and one of 

the parties must be entitled to judgment as a matter oflaw. 

"Summary judgment is proper only where the pleading and 

record do not reflect conflicting issues of material fact." See 

Levey G. Getelman, 408 So.2d 663,665 (Fla. 3rd DCA 

1981). If issues of fact exist and the slightest doubt remains, 

summary judgment cannot be granted.

All doubts as to the existence of genuine issues of 

material fact are to be resolved against the moving party. 

The moving party is required to produce probative evidence 
43

indicating conclusively that genuine issues of material fact 

do not exist. Until such time as it does so, the opposing party 

is under no obligation to show that issues remain to be tried. 

See Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966) and 

Fletcher Co. v. Melroe Mfg. Co., 261 So.2d191, 193 (Fla. 

1st DCA 1972). Once the moving party introduces evidence 

of its prima facie right to summary relief, the non-moving 

party must produce competent counter evidence. Simply 

asserting that an issue of fact exists will not suffice. See 

Landers v. Milton, 370 So.2d 368 (Fla. 1979) and 

Almand Construction Co.• Inc.• v. Evans, 547 So.2d 

626, 628 (Fla. 1989).

Upon review of the record submitted, considering

the arguments of counsel and being otherwise advised in

the premises, I find that there are no genuine issues of

material fact as to only certain issues.

a. I find that the Claimant was in the course and scope 

of her employment.

b. I find based on the above that she had an accident 

during her normal working hours on the work 

premises established by the Telecommuting 

Agreement and that her accident and possibly her

injuries arose out of and in the course of her

employment as a Telecommuting Employee 

working from a satellite office of the Employer.

c. I find that the Claimant sustained a compensable 

workers' compensation accident when she fell on

her mid-morning break and was reportedly injured 

as a result of that fall.

d. I reserve jurisdiction to determine what injuries,

if any, were directly related to her fall of April 27, 

2016 and this will be determined following the 

final hearing on November 8, 2016.

WHEREFORE IT IS HEREBY ORDERED AND 

ADmDGED that:

The Employer/Servicing-Agent' s Motion for 

Summary Final Order is DENIED, and I find the 
44

Claimant sustained a compensable workers' 

compensation accident on April 27, 2016 which arose 

out of and in the course of her employment with the 

Employer.

DONE AND ORDERED in Chambers in Orlando, 

Orange County, Florida.

Honorable W. James Condry Judge of 

Compensation Claims

400 W. Robinson Street, Suite 608-

North Orlando, Florida 32801

_____________________________

James N. McConnaughhay of McConnaughhay, Coonrod, Pope 

Weaver, & Stern, P.A., Tallahassee, and Elizabeth V. Bogle, 

Pensacola, for Appellants.

Bill McCabe, Longwood, and Glen D. Wieland, Orlando, for 

Appellee.