Workers’ Compensation — Death of employee intentionally struck by assailant was compensable

Workers’ compensation — Compensable accidents — Murder —
Death of store manager following injuries sustained when, as he was gathering
shopping carts in employer’s parking lot at night, he was struck by car driven
by a criminal assailant who had planned the attack in reaction to decedent’s
allegedly sexually harassing assailant’s girlfriend, who worked as cashier for
same employer — Accident was compensable where decedent was in course and scope
of his employment and injury and death arose from interaction of people
connected only by the workplace — Judge of compensation claims erred in denying
compensability

DILMA CELENY SANTIZO-PEREZ (WIDOW AS WELL AS MOTHER AND PERSONAL
REPRESENTATIVE OF THE MINOR CHILDREN OF THE MARRIAGE ANA VICTORIA
PIVIRAL-SANTIZO AND ANDREW ALEXIS PIVARAL-SANTIZO, SURVIVING DEPENDENTS OF
MELVIN PIVARAL-RAMIREZ), Appellant, v. GENARO’S CORPORATION D/B/A KING’S FOOD
and MEAT BAZAAR, Appellees. 1st District. Case No. 1D13-2674. Opinion filed May
19, 2014. An appeal from an order of the Judge of Compensation Claims. Shelley
H. Punancy, Judge. Date of Accident: June 5, 2011. Counsel: Kimberly A. Hill of
Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant. R. Lee Dorough of
Dorough, Calzada & Soto, L.L.P., Orlando, for Appellees.

(BERGOSH, GARY L., ASSOCIATE JUDGE.) In this workers’ compensation case, the
surviving dependents of Melvin Pivaral-Ramirez, an employee of King’s Food and
Meat Bazaar (King’s), challenge an order of the Judge of Compensation Claims
(JCC) that denies the compensability of his accident, injuries, and death. We
conclude the JCC erred in denying compensability; we therefore reverse the
appealed order and remand the case for the award of benefits available under the
Florida Workers’ Compensation Law.

Mr. Pivaral-Ramirez was the front-end manager for King’s. On the evening of
June 5, 2011, he began to gather shopping carts from King’s parking lot. As he
worked in the parking lot, a car hit him and sped away. Suffering from, inter
alia, severe brain injuries leaving him in a vegetative state, he passed
away in the hospital a few weeks later.

The driver of the car, Christopher Polanco, was apprehended that same night,
and claimed his actions were in reaction to the decedent sexually harassing his
girlfriend, a cashier at King’s.1 The
criminal assailant confessed that he planned the attack for at least two to
three weeks and knew Mr. Pivaral-Ramirez collected shopping carts from the
store’s parking lot each night. On the night of the murder, the assailant
confessed, he borrowed the car from a friend, brought food to his girlfriend at
the store, and then waited in the parking lot as it began to get dark. When Mr.
Pivaral-Ramirez emerged from the store to collect the day’s shopping carts, the
assailant confessed, he became enraged, turned on the car’s high beam
headlights, and sped towards Mr. Pivaral-Ramirez, striking and ultimately
killing him.

The Workers’ Compensation Law defines “injury” as “personal injury or death
arising out of and in the course of employment.” § 440.02(19), Fla. Stat.
(2010). The Law also requires that an injury, to be compensable, “aris[e] out of
work performed in the course and scope of employment.” § 440.09(1), Fla. Stat.
(2010). Here, the JCC concluded that, although the decedent was in the course
and scope of his employment at the time of his injury, the injury did not arise
out of his employment because there was no evidence that “anything in the
decedent’s employment was related to him being put at risk of being murdered,”
“[t]he vehicle used in the assault was not an implement of the employment,”
“[t]here is no evidence of a close proximity between the decedent and his
assailant,” and the location of the attack was merely “convenient” or
“fortuitous” because, given the assailant’s belief that his girlfriend was being
sexually harassed by the decedent, “chances were the assault was inevitable,
without regard to the employment.” The JCC further concluded the “assailant
could just as easily [have] hit [the decedent] with the vehicle or attacked him
in some other way elsewhere.” While some of these findings are proper as allowed
by case law describing the factors a JCC may consider in determining the
work-relatedness of an intentional act, the last conclusion is quite
speculative.2 See Sentry Ins. Co.
v. Hamlin, 69 So. 3d 1065, 1071 (Fla 1st DCA 2011) (work-related risk);
Carnegie v. Pan Am. Linen, 476 So. 2d 311, 312 (Fla. 1st DCA 1985)
(implement of the employment); Tampa Maid Seafood Prods. v. Porter, 415
So. 2d 883, 885 (Fla 1st DCA 1982) (close proximity); San Marco Co. v.
Lunsford, 391 So. 2d 326, 327 (Fla 1st DCA 1980) (fortuitous location). Of
course, not all factors need to be present in all cases of compensability.

We accept, as supported by the record, the facts as found by the JCC.
Therefore, the JCC’s interpretation and application of the statute is a question
of law subject to review de novo. As the parties agree that the decedent
was “in the scope of his employment,” the seemingly simple issue is whether the
decedent’s injury can be found to be “arising out of” his employment. The
inquiry is not as to fault. Rather, it is merely “of marking out boundaries.”
Hamlin, 69 So. 3d at 1069 (quoting Taylor v Sch. Bd. of Brevard
Cnty., 888 So. 2d 1, 5 (Fla. 2004) (quoting 1 Arthur Larson & Lex K.
Larson, Larson’s Workers’ Compensation, Desk Edition §1.03, at 1-4 to 1-5
(2003))). In general terms, when a work-related risk brings about injury, the
injury is compensable vis-à-vis those that are brought about by risks
personal in nature, which are not. See Hamlin, 69 So. 3d at 1070.

Some jobs are more prone to workplace assaults than are others. Usually this
is so because of one, or both, of the following factors: 1) the nature of the
job, e.g., dangerous duties; and 2) the nature of the environment of the job,
e.g., dangerous locations.3 In this case,
it was the environment; the decedent was collecting shopping carts at night.
Obviously, an employee being hit by a car in the customer parking lot while
collecting shopping carts at night is a risk “incident to the hazards of
industry.”4 See Leon Cnty. Sch.
Bd. v Grimes, 548 So. 2d 205 (Fla. 1989) (quoting Protectu Awning Shutter
Co. v. Cline, 16 So. 2d 342, 343 (Fla. 1944)). Additionally, while the
decedent had no apprehension of personal animosity of a co-worker’s jealous
boyfriend, there is no question the genesis for the “dispute” giving rise to the
fatal injuries here was in the workplace. The instant case is analogous to
Tampa Maid, wherein a love triangle among three co-workers resulted in
claimant being assaulted with a shrimp knife. 415 So. 2d at 885. Specifically,
both there and here, it was the interaction of people connected only by the
workplace that prompted the accident, and therefore, we reach the same
conclusion of compensability.

As the decedent was both in course and scope of his employment and his injury
did indeed arise from his employment, his injuries and death are legally
compensable. Accordingly, we REVERSE AND REMAND for entry of an order consistent
with this opinion. (THOMAS and RAY, JJ., CONCUR.)

__________________

1The decedent and the criminal assailant
never met and there was no evidence decedent ever sexually harassed anyone at
King’s Food other than the rank hearsay statement of the criminal assailant to
the police.

2The criminal assailant told police he made
several comments to his girlfriend about hurting the decedent; however, he felt
that she thought he was just joking. Therefore, the certainty of the criminal
assailant’s actions was indiscernible, even to those closest to him.

31 Lex K. Larson, Larson’s Workers’
Compensation § 8.01 (rev. ed. 2013).

4This case presents a classic example of
how courts can hyper focus on motive of a third party causing injury to an
employee, ignoring a dangerous environment that also facilitated the injury. As
Larson’s points out, “[t]he error here is a simple one: The court assumes that
the claimant must prove both that the environment increased the risk of the
attack and that it was motivated by something related to the employment. The
correct rule is that either one or the other is sufficient to establish the
causal link.” 1 Lex K. Larson, Larson’s Workers’ Compensation §
8.01[1][b] (rev. ed. 2013) (emphasis added).