Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

In what appears to be a significant retreat from an earlier decision, the Fifth District Court of Appeal has held that just because a workers' compensation carrier has previously denied an employee's workers' compensation claim, the employer is not estopped from asserting workers' compensation immunity as an affirmative defense in that employee's subsequent tort suit against it.

In Tractor Supply Company v. Kent, decided on 8/31/2007, the employee (Kent) claimed he was injured during the course of his employment with Tractor Supply Company when he was exposed to hydrated lime dust, allegedly causing an aggravation of a pre-existing pulmonary condition.  Kent filed a petition for benefits with the JCC, but the workers' compensation carrier filed a denial, stating "Entire claim denied, as the condition complained of is the result of a pre-existing medical condition that is not the result of employment with Tractor Supply."  Upon receiving the denial, Kent voluntarily dismissed his petition and filed a tort suit against the employer in circuit court.  Tractor Supply Company filed an answer in that suit in which it asserted that it was entitled to workers' compensation immunity.  The trial court granted partial summary judgment to Kent, holding that the employer was estopped as  matter of law from raising workers' compensation immunity as an affirmative defense because of the carrier's earlier denial of Kent's petition for benefits in the workers' compensation forum.

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Perhaps one of the more significant workers' compensation decisions that have been issued in the last few years is the Florida Supreme Court's decision in Aguilera v. Inservices, Inc., 905 So.2d 84 (Fla. 2005).  In Aguilera, the Court held that a workers' compensation insurance carrier is not immune from tort liability to the claimant when it commits an intentional tort during the claims-handling process. 

In the wake of Aguilera, the district courts of appeal have issued several decisions concerning whether a carrier's conduct was or was not sufficiently egregious to amount to an intentional wrongdoing.  The latest is the Second Disctrict Court of Appeal's 8/29/2007 decision in Liberty Mutual Insurance Company v. Steadman.

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As I wrote about here, since 1979 the First District Court of Appeal in Tallahassee has exercised statewide jurisdication over all workers' compensation appeals - even in those cases which arise outside the normal geographic jurisdiction of that Court.  In Saldana v. Miami-Dade County, Florida, the claimant, a resident of South Florida, filed a petition for writ of prohibition in the Florida Supreme Court asking the Court to prohibit the First District from hearing the appeal of his workers' compensation case.

But in this order dated 8/23/2007, the Supreme Court denied the petition without ever requiring a response from Miami-Dade County or from the First District itself.  The Court concluded that "prohibition is not available to prevent an erroneous exercise of jurisdiction or if another appropriate and adequate legal remedy exists." Therefore, Mr. Saldana will now have his appeal heard by the First District.

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Section 440.20(7), Fla. Stat., provides for a 20% penalty on compensation benefits payable pursuant to an "award" when the compensation is not paid within 7 days after it becomes due.  When an unrepresented claimant enters into a "washout" settlement agreement with the employer/carrier, he is entitled to the 20% penalty in the event of late payment of the settlement proceeds.  But a claimant who has an attorney is not entitled to penalties for a similar late payment.  See s.440.20(11)(c), Fla. Stat.

Does this unequal treatment of represented versus unrepresented claimants violate the Equal Protection clause of the Constitution?  No, said the First District Court of Appeal in Lucas v. Englewood Community Hospital, decided on 8/23/2007.  The statute bears "a rational relationship to a legitimate state interest."  The Court reasoned that the legisislature could rationally have presumed that a represented claimant is in a better position to negotiate the terms of settlement - including when the settlement proceeds are due and what penalty might attach in the event of a late payment.  The Court therefore affirmed the order of the JCC which had refused to award a penalty on the late payment of the claimant's $225,000 settlement.

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Falsely accusing someone of being a criminal is usually considered defamatory.  In this case, a jury found that a police lieutenant had defamed one of his subordinates by falsely accusing him of committing workers' compensation fraud. They awarded him $50,000 in damages. 

On appeal, however, the Fourth District Court of Appeal reversed the award with directions that judgment be entered in favor of the lieutenant.  Relying upon earlier precedent, the Court concluded  that the lieutenant, a "public official" whose statements were made in the course of his duties as police officer, was immune from liability for those statements.  In Florida, said the Court, "public officials who make statements within the scope of their duties are absolutely immune from suit for defamation."

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Can a plaintiff file a workers' compensation claim and collect a $350,000 settlement - ostensibly on the theory that he was an "employee" injured in the course of his employment on the date of his accident - and then later sue his "employer" in tort on the theory that he wasn't an "employee" after all?  Yes, said the Second District Court of Appeal in this case involving the doctrine of "election of remedies."  Here's what happened.

Father ("Arnulfo Sanchez Hernandez"), who was an employee of Sorrells Brothers Packing Company ("Packing Company"), was working in a citrus grove while his 17-year-od son ("Sanchez Vasquez"), who was not an employee of Packing Company, was also present.  (It is not clear from the opinion why the son was on the jobsite).  Sanchez Vasquez was seriously injured when he was struck by a vehicle known as a "goat" - owned by Sorrells Grove Care, Inc. ("Grove Care") and operated by another Packing Company employee ("Ramos").  Evidently not knowing that Sanchez Vasquez was in fact not an employee of Packing Company, his attorney filed a workers' compensation claim for him against Packing Company.  (You can see the petition for benefits here).  Packing Company and its workers' compensation carrier ("Clarendon") denied the claim on the grounds that Sanchez Vasquez was not its "employee."  (You can read the denial here.) 

Rebuffed in his attempt to claim workers' compensation benefits, Sanchez Vasquez therefore filed a tort claim against Packing Co., also naming Grove Care and Ramos in the complaint.  In its answer - contrary to the position it had taken in the workers' compensation proceedings - Packing Company alleged that it was entitled to workers' compensation immunity because Sanchez Vasquez was its employee.  Thereafter, at Packing Company's request, the trial court stayed the tort claim proceedings until the workers' compensation claim was resolved.  (Actually, Sanchez Vasquez filed a motion to stay the workers' compensation proceedings until the tort claim could be resolved.  That motion was denied by the JCC, whose order you can read here).

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As I've written about in other posts, workers' compensation issues can sometimes crop up in other types of cases - even criminal cases.  That's what happened here.

It all started with a good old-fashioned bar fight down at the Stuart Ale House.  Fitzpatrick, the Ale House's bouncer, was injured when he asked bar patrons Deren and Stewart to leave the premises.  An altercation ensued  in which Fitzpatrick was injured and following which Deren was charged with and convicted of felony battery and disorderly conduct.  Because Fitzpatrick's injuries were incurred in the course of his employment, he received workers' compensation benefits from Stuart Ale House and its workers' compensation carrier, Hartford. 

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Here's yet another case where the First District Court of Appeal rejected a challenge to the constitutionality of the 2003 amendment to s.440.34.  This amendment limits the amount of fees which can be awarded to a claimant's attorney to a percentage of the "benefits secured" as a result of the attorney's efforts.  Pursuant to this amendment, the JCC awarded the claimant's attorney a fee of $100.00 for obtaining $500.00 worth of benefits, even though the parties stipulated that the attorney reasonably expended 10 hours of time in obtaining the benefits.  The amendment therefore resulted in an effective rate of $10.00 per hour.  You can read the JCC's decision here.

As I wrote about here and here, there are currently two cases still pending before the Florida Supreme Court which are awaiting a decision from the Court on whether it will accept jurisdiction.  The Court has so far declined to address the issue in four other cases.

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In 2001, the legislature amended s.440.20(11), Fla. Stat., to repeal the JCC's former duty to review a proposed lump-sum settlement of an injured worker's right to future benefits to ensure that it was in the best interests of the worker.  See Ch. 2001-91, s.17, Laws of Fla.  Under the revised statute, in cases where the injured worker is represented by counsel, the JCC has jurisdiction only to review the amount of attorney's fees paid by the claimant to his attorney for obtaining the settlement and to ensure that any child support arrearages owed by the worker are paid from the proceeds of the settlement. 

But what happens if the JCC approves the amount of attorney's fees but does not approve of the amount of costs being charged to the worker by his attorney?  Can the JCC refuse to approve both the attorney's fees and the costs?  That's what the JCC did in this order.

But the First District Court of Appeal has now said no.  In Eshlibi v. Consolidated Box Manufacturing, decided on 7/31/2001, the Court said that "a JCC lacks statutory authority to deny the attorney's fees based upon costs charged to the claimant" in lump-sum settlement cases.

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