State News : Florida

Employees Must Establish Causal Link to Employment In Workplace Violence Cases

Noah Vollmer, Esq. Bleakley Bavol Denman & Grace

In a case which received significant attention over the last year, the First District Court of Appeal, which hears all workers’ compensation appeals in Florida, held that an employee who was shot while at work did not meet his burden of proving that his injury arose out of his employment. In Normandy Insurance Company v. Bouayad, 372 So. 3d 671 (Fla. 1st DCA 2023), the Claimant, Mohammed Bouayad, worked as a general manager for a rental car business located in the Orlando International Airport Holiday Inn. Mr. Bouayad worked at a kiosk inside the hotel atrium. At the end of each day, Mr. Bouayad would carry rental car agreements and cash from the kiosk to an office located in a separate building roughly fifty feet away from the kiosk. On June 28, 2019, around midnight, Mr. Bouayad was walking from the kiosk to the office when an unknown assailant emerged and shot him seven times. Surveillance video of the shooting showed that the shooter shot Mr. Bouayad, turned to leave, then turned back around and shot Mr. Bouayad several more times before fleeing. The shooter did not make any attempt to rob Mr. Bouayad or take anything from him. Despite being shot seven times, Mr. Bouayad was able to make it back to the hotel. A hotel guest came over to assist Mr. Bouayad, at which time Mr. Bouayad told the guest “Robert shot me” and also that the police should look for his assailant in a blue Ford Mustang.   

Mr. Bouayad petitioned for workers’ compensation benefits and his claim was subsequently denied by the Employer/Carrier who argued that the injuries Mr. Bouayad sustained did not arise out of his employment.[1] Specifically, the Employer/Carrier argued that there was reason to believe Mr. Bouayad was shot by Robert Aponte, and that the shooting stemmed from a dispute over an alleged debt between Aponte and Mr. Bouayad’s son. The day prior to the shooting, Mr. Aponte confronted Mr. Bouayad’s son and threatened to kill him. The Employer/Carrier argued that the shooting which occurred the next day was related to this dispute and confrontation rather than Mr. Bouayad’s employment. In support of this argument, the Employer/Carrier presented evidence that Mr. Bouayad told the hotel guest that “Robert” shot him and that the police should look for a blue Ford Mustang, that Mr. Aponte owned a blue Ford Mustang, and that the hotel where Mr. Bouayad worked was registered as a residence for Mr. Aponte.

In response, Mr. Bouayad, despite his statements made in the immediate aftermath of the shooting, subsequently claimed that Mr. Aponte was not the shooter and that his shooting was work-related. Notably, the police did not charge Mr. Aponte with the shooting, though this was based in part on several witnesses who knew Mr. Aponte (including Mr. Bouayad’s wife and son) viewing the surveillance video and denying that Mr. Aponte was the shooter.[2]  In support of his contention that the shooting was work-related, Mr. Bouayad presented expert criminology testimony that his employment exposed him to increased risk of becoming a crime victim based on the inherent risks associated with his job responsibilities and work hours as well as the crime rate in the area where his employment was located compared to the area near Mr. Bouayad’s home. Further, Mr. Bouayad presented testimony from the company’s co-owner that several rental cars had been stolen and others had been vandalized in the few years preceding the shooting. Additionally, the co-owner testified that three employees had been fired in the weeks before the shooting, two for theft and one for a failed drug test. That said, the co-owner also testified that he was unaware of any violent crime on the hotel premises prior to the shooting and that none of the terminated employees had threatened violence.

After a trial, the Judge of Compensation Claims entered an order finding that Mr. Bouayad’s injuries were compensable on the grounds that his “employment substantially contributed to the risk of injury and to risks which [Mr. Bouayad] would not normally be exposed to during his nonemployment life.” After granting a motion for rehearing filed by the Employer/Carrier, the JCC entered an amended final order which still found that Mr. Bouayad’s injuries were compensable, but this time concluded that the shooting was “a targeted attack based upon inside information that [Mr. Bouayad] would be working late” and that “the reason for the targeted attack was more likely than not related to the termination of a prior employee[s] or other job related issue rather than the incident with Robert Aponte.”[3]  The JCC held that Mr. Bouayad’s employment was the major contributing cause of the shooting and his related injuries because, but for Mr. Bouayad walking between the kiosk and the office as part of his employment, the shooting would not have occurred at the time and place it did.

For an accident and injury to be compensable under Florida law, it must “aris[e] out of work performed in the course and scope of employment.” § 440.09(1), Fla. Stat. Florida courts have held that the “arising out of” element refers to the origin of the cause of the accident. Specifically, “for an injury to arise out of and in the course of one’s employment, there must be some causal connection between the injury and the employment or it must have had its origin in some risk incident to or connected with the employment or that it flowed from it as a natural consequence.” Fid. & Cas. Co. of N.Y. v. Moore, 196 So. 495, 496 (1940).

On appeal, the First DCA held that Mr. Bouayad failed to meet his burden of proving that his injuries arose out of the work he performed. The Court first noted that, although the workers’ compensation system is a no-fault system and so an employee need not establish fault, for an accident and injury to be compensable, an employee still must establish occupational causation. The Court stated, “although workers’ compensation benefits are payable irrespective of fault, they are not payable irrespective of cause.” With respect to Mr. Bouayad’s case, the Court held that there was no causal link between Mr. Bouayad’s injuries and the work he performed.  Mr. Bouayad did not present any evidence which identified the shooter, established their motive, or connected the shooter to the work Mr. Bouayad performed. It was not enough that the shooting happened while Mr. Bouayad was working. The Court stated “[t]he sole cause of his injuries was that he was shot. At most, the work he performed for [the employer] placed Bouayad in the wrong place at the wrong time. This is not enough to establish occupational causation.” The Court concluded its opinion by certifying the following question to the Florida Supreme Court: “[W]hen an act of a third-party tortfeasor is the sole cause of an injury to an employee who is in the course and scope of employment, can the tortfeasor’s act satisfy the occupational causation element, as defined by section 440.02(36), Florida Statutes, necessary for compensability under the Worker’s Compensation Law?”

The Bouayad case provides an employer friendly ruling with respect to acts of violence occurring in the workplace. Bouayad reiterates that the employee has the burden of proving both that an accident arose out of and occurred in the course and scope of their employment. An employee cannot meet this burden simply by showing that their accident occurred while they were at work. This ruling seemingly provides employers with protection against workplace violence accidents which have no connection whatsoever to the subject employment.