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. 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. 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.” 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.