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Deputy wins worker's comp case

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Insurer wanted to deny claim

By Lou Elliott Jones, Editor

Retired Levy County Sheriff's Deputy Herman Allen of Cedar Key has won an appeal of his claim for worker's compensation to cover him for an accident that he said was in the line of duty. 

Allen was on his way to work in Bronson on State Road 24 in  the early morning darkness of Feb. 11, 2013, when he came upon a tractor-trailer parked partially in his traffic lane and the right of way about four miles west of the Otter Creek. 

Allen decided he needed to do something about the hazard to other drivers and pulled over, but his car hit the truck injuring the 41-year law enforcement veteran. 

Allen filed a worker's comp claim with the Sheriff's Office and its insurer North American Risk Services. 

Judge of Compensation Claims Marjorie Renee Hill ruled that Allen's injuries, which included five broken ribs, a broken sternum, two broken vertebrae and nerve damage on his right side, was entitled to worker's compensation. 

A three judge panel of the 1st District Court of Appeal ruled in an opinion written by Judge Scott Makar, “Because the record establishes that Deputy Allen was acting within his course of employment when the accident at issue occurred, we affirm the order of compensability.” 

Makar wrote, “The question we address is whether Deputy Allen’s injuries are compensable because he was “acting within the course of employment' under section 440.091(1), Florida Statutes, or non-compensable because he was 'going to or coming from' work under 440.092(2), Florida Statutes.”

The court noted that Allen was wearing his uniform, badge and gun when he left home. 

The insurer's position was that Allen was driving his personal vehicle on his own time and his actions were beyond the scope of his job of providing security at the county courthouse. 

Makar wrote for the court, “Allen and other sheriff's employees testified that the office has a policy that requires off-duty officers to conduct themselves as if they were on-duty to resolve hazards they observe.”

The compensation court judge ruled that Allen was discharging one of his primary functions  — to safeguard the citizens of Levy County — when the accident occurred and the appeals court agreed. 

The compensation court judge also ruled that Allen was a full-time employee although he only worked 34 hours per week and who had the authority to bear arms and make arrests and the appeals court also agreed with that finding. 

The other judges concurring in the ruling were Judge Ronald V. Swanson and Associate Judge Jonathan Sjostrom.