Fifth DCA finds Employer not Estopped from Asserting WC Immunity in Tort Claim
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.
In awarding partial summary judgment, the trial court relied upon the Fifth District's earlier decision in Byerley v. Citrus Publishing, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999). There, the Fifth District held that the employer was estopped from asserting workers' compensation immunity as an affirmative defense in the employee's tort suit against it where the workers' compensation carrier had previously denied the employee's workers' compensation claim on the grounds that the claimant was not in the course of his employment when his accident occurred.
But the Fifth District in Kent said that the Byerley case was different. Byerley, said the Court, "involved the denial of a comp claim on the ground that the injury did not arise in the course and scope of the employment relationship," whereas the carrier's denial in Kent "did not assert that no employment relationship existed or that the incident occurred outside the scope of employment. Rather, the denial asserts that under the terms of the Workers' Compensation Act, the injury is one which is not deemed to be compensable."
In addition, the Court in Kent said that "[i]t is important to note that the comp claim was dismissed before it was adjudicated." It goes on to note that the question of whether the claimant's injuries were due to a pre-existing condition "should ordinarily be litigated in a workers' comp setting. Employees should not be permitted to 'jump the gun' and file suit in circuit court when a defense such as a pre-existing condition is raised."
My take on this? I just don't see how these two decisions are reconcilable. It is true that Kent involved a denial on the grounds of medical causation whereas Byerley involved a denial on the grounds that the claimant was not in the course of his employment when her accident occurred. But why should that matter? Either way, the claimant has been denied access to the "self-executing" workers' compensation system, and the employer/carrier has benefited by taking inconsistent positions with respect to the compensability of the claimant's injuries. And despite the Kent court's emphasis on first litigating the workers' compensation claim to a conclusion, this was neither done nor required in Byerley.
Perhaps just as interesting is what the result might be if Kent had obtained an adjudication from the JCC that his injuries were not compensable because his employment was not the "major contributing cause" of those injuries. Would his subsequent tort claim against his employer then be barred by workers' compensation immunity? I think that such a construction of s.440.11 could very well run afoul of Art. I, §21, Fla. Const., which guarantees Florida citizens the right of "access to courts," because he essentially would be deprived of any remedy for his injuries.
