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

The problem of illegal immigration continues to spill over into the area of workers' compensation law.  Take the tragic case of Victor Leon.  Victor is an illegal immigrant who, while working for Altec Roofing on a construction project in Palm City, fell off the roof of a three-story building.  The accident resulted in his permanently paralysis. You can read a newspaper account of his story here.

 

Victor says that his employer knew all about his immigration status and that before his accident they even helped him to obtain a fake social security number.  The newspaper account suggests that all of this puts him "at the crux of the debate" about his rights right to receive workers' compensation benefits as a result of his accident. 

 

But at this point, absent further action by the legislature, that debate is actually over.  The First DCA has now held that using a fake social security number just to obtain employment does not justify the forfeiture of an injured worker's right to workers' compensation benefits for an on-the-job accident.   Rather, §440.09(4)(a) requires that an injured worker make a false statement "for the purpose of securing workers' compensation benefits" before the ultimate sanction of forfeiture may be imposed.  See Matrix Employee Leasing v. Hernandez, 975 So.2d 1217 (Fla. 1st DCA 2008).  So unless there are other facts about the case which weren't reported, his illegal status does not affect his right to workers' compensation benefits.

 

But Victor has another problem.  A post-accident drug test revealed the presence of cocaine and marijuana in his system.  Section 440.09(3) says that workers' compensation benefits for an otherwise compensable accident are not payable if the injury "was occasioned primarily. . . by the influence of any drugs. . . not prescribed by a physician."  And §440.09(7)(b) creates a presumption that the injury was occasioned primarily by the presence of a drug when a post-accident test confirms its presence in the worker's system at the time of the accident.

 

Apparently, Victor has retained an expert who has testified that the drugs in his system at the time of the accident did not actually impair him.  But rather than seeking an adjudication of his right to workers' compensation benefits before the judge of compensation claims, Victor took another approach.  After initially filing a petition for benefits, he voluntarily dismissed that petition and instead filed a tort claim against his employer in circuit court - evidently on an estoppel theory.  That is, Victor argues, having elected to controvert the compensability of his accident under the Florida Workers' Compensation Law, the employer/carrier should now be estopped to claim workers' compensation immunity to a claim for tort liability. 

 

Unfortunately for Victor, the courts haven't really bought into this estoppel argument lately, and the circuit court granted Altec's motion for summary judgment.  And, citing Tractor Supply Co. v. Kent, 966 So.2d 978 (Fla. 5th DCA 2007), a case which I discussed here and here, the Fourth DCA last week affirmed that decision.  So as far as any remedy against Altec Roofing is concerned, I suppose it's back to the workers' compensation forum for Victor at this point.

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Pamela Andrews was injured on the job and was later fired.  Believing that her employer, Direct Mail Express, had fired her in retaliation for pursuing her workers' compensation claim, she filed suit against them under §440.205.  The case went to trial, but before it was submitted to the jury for deliberation, Direct Mail filed a motion for a directed verdict.  They contended that the there was no evidence that Andrews had been fired because of her workers' compensation claim, and the trial court agreed.  Thus, judgment was entered in favor of Direct Mail Express, and the jury was not allowed to decide the case.

 

But on appeal, the Fifth District reversed and remanded for a new trial.  The court noted that the evidence showed the following: 

• She [Andrews] sustained a fall at DME caused by a broken curb in the vicinity of DME's outside break area. She subsequently filed a petition for workers' compensation benefits. She was terminated from her employment approximately seven weeks later, after a number of incidents which she contended were retaliation for filing her claim for benefits. Among the events complained of were reprimands for taking breaks that were longer than allowed (which she contended resulted from her taking prescription medication which required her to drink excessive amounts of liquids thus requiring increased restroom usage), and for refusing to sign the warning notice given to her for that incident. In addition, despite outstanding performance scores, she was overlooked for promotions that were given to newer employees. She was terminated after being advised that the reason for termination was unsatisfactory performance based on the way that she had handled a telephone call. However, the next day, she corresponded with the CEO of DME and asked him to investigate her termination. He advised her that she was good at what she did, and that she was not let go because she could not do the job or was not doing a good job, but simply because there was not enough work to go around.

This evidence, said the Fifth District, was sufficient to withstand Direct Mail's motion for directed verdict and to permit the jury to find that Andrews was fired because she pursued her claim.  Thus, the jury should have been allowed to decide the case.  See Andrews v. Direct Mail Express, Inc., decided on 2/6/2009.

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The courts are still dealing with the aftermath of the Florida Supreme Court's 2007 decision in Bakerman v. The Bombay Co.  The court concluded in that case that under the pre-2003 version of §440.11, the plaintiff/employee need not prove that the employer deliberately concealed a dangerous condition from the employee in order to prove that the employer's conduct was "substantially certain" to result in injury or death.  Conduct meeting that test allowed an employee to circumvent the "exclusive remedy" of workers' compensation and sue the employer in tort.

 

In its original opinion decided before Bombay, the Third DCA had concluded that the employer's concealment of a known danger was an "indespensable criterion" of the "substantial certainty" test.  But on remand from the supreme court after Bombay, the court concluded 2-1 in Casas v. Siemens Energy and Automation, Inc., that there remained disputed issues of fact on whether the substantial certainty test had been met.  Thus, it reversed the award of summary judgment for the employer and remanded the case for further proceedings.  The complaint there alleged that the plaintiff's arm was crushed in a machine because the employer had insufficiently trained him in using it.

 

Of course, these decisions have limited consequences.  The legislature amended §440.11 in 2003 to increase the claimant's burden from "substantial certainty" to "virtual certainty" before he can avoid the exclusive remedy provision.  He also must prove that the employer deliberately concealed a known danger.

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Zeeuw v. BFI Waste Systems of North America, Inc., decided by the Second District Court of Appeal on 12/31/2008, illustrates how litigation can arise when the documentation in an employee leasing situation is unclear.  Zeeuw had previously worked for BFI as a leased employee of Spartan Staffing, but it was unclear on the date of his accident whether he remained a leased employee or whether he worked directly for BFI.  He therefore filed petitions for benefits against both entities, but both BFI and Spartan Staffing denied that he was their employee on the date of the accident.  Zeeuw therefore dismissed his petition against BFI and settled with Spartan Staffing, with the stipulation that Spartan Staffing was not thereby admitting that Zeeuw was its employee on the date of the accident.

 

Zeeuw thereafter filed a tort action against BFI, but the trial court granted BFI's motion for summary judgment on the grounds that on the date of the accident Zeeuw was BFI's "borrowed servant" and BFI was therefore entitled to immunity from tort liability by virtue of §440.11(2), Fla. Stat.

 

On appeal, the Second District concluded that there remained genuine issues of material fact as to whether on the date of the accident Zeeuw was employed by Spartan Staffing or by BFI.  The court also rejected BFI's argument that Zeeuw was estopped from pursuing a tort claim against them.  The court reasoned that (1) Zeeuw's earlier workers' compensation claim against BFI was not "successfully pursued" - a prerequisite for judicial estoppel - and that (2) there was no "mutuality of parties" because BFI was not a party to Zeeuw's settlement with Spartan Staffing.

 

I confess that the court's decision is a little confusing to me.  It seems to me that on the date of the accident Zeeuw was either (1) working directly for BFI (in which case BFI would be entitled to immunity from tort liability) or (2) working for Spartan Staffing (in which case BFI would have still been entitled to immunity because Zeeuw would have been BFI's "borrowed servant."  But it also sounds to me as though this whole dispute could have been avoided if BFI and Spartan Staffing simply had made it plain at all times which entity was actually employing Zeeuw.

 

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Section 440.205, Fla. Stat., prohibits an employer from retaliating against an employee "by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law," and the Florida Supreme Court has held that an employer's violation of this statute creates a private cause of action against the employer and in favor of the aggrieved employee.  See Smith v. Piezo Technology, 427 So.2d 182 (Fla. 1983).

 

Where the defendant in a tort claim is the State of Florida or one of its political subdivisions, §768.28(6), Fla. Stat., requires that notice be given to the state before the action is commenced.  So is a civil proceeding alleging a violation of §440.205 a "tort" claim?  In Kelley v. Jackson Co. Tax Collector, 745 So.2d 1040 (Fla. 1st DCA 1999), the First District Court of Appeal said yes and therefore dismissed the employee's claim for failure to comply with §768.28(6)'s notice provisions. 

 

But in Bifulco v. Patient Business & Financial Services, Inc., decided on 1/2/2009, the Fifth District disagreed, reversing the summary final judgment entered by the trial court against the employee/plaintiff and certifying conflict with Kelley and with the Third District's decision in Osten v. City of Homestead, which had agreed with Kelley.

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I wrote here about Aikens v. Miller Electric, Case No. 1D07-6314, a case where the First DCA affirmed without opinion a Duval County circuit court's rejection of the plaintiff's challenge to the constitutionality of a 2003 amendment to §440.10, the so-called "horizontal immunity" provision.  Under the more familiar "vertical immunity," a general contractor is immune from tort liability for injuries to employees of its subcontractors where the general or sub has secured workers' compensation coverage.  But under the 2003 "horizontal immunity" amendment, employees of one subcontractor are now barred from suing other subcontractors in tort provided that: (1) the defendant subcontractor has secured workers' compensation insurance coverage for its own employees; and (2) the defendant subcontractor's own "gross negligence" was not the "major contributing cause" of the injuries.

 

Now the Fourth DCA has written an opinion in which it expressly rejects the plaintiff's claim that the 2003 amendment violates Art. I, §21, Fla. Const., the "access to courts" provision.  See Amorin v. Gordon, decided on 12/3/2008.  The court reasoned that the plaintiff's claim against the other subcontractor had not been completely abolished by the amendment because he could still bring suit in cases where the subcontractor was grossly negligent.

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Before the 2003 amendments to §440.11, the Florida Supreme Court held that an employer loses its immunity from tort liability if its conduct was "substantially certain" to result in injury or death to its employee.  See Turner v. PCR, Inc., 754 So.2d 683 (Fla. 2000). 

 

In Cabrera v. T.J. Pavement Corp., decided on 11/19/2008, the Third DCA has held that an employer's violation of OSHA regulations governing the construction of trenches at construction sites, together with affidavits from experts to the effect that the employer should have known that its actions were substantially certain to result in injury or death, is sufficient to survive the employer's motion for summary judgment in the wrongful death suit filed by the deceased worker's estate.

 

The court was careful to note that its decision did not involve the 2003 amendment to §440.11 because the accident at issue occurred before the effective date of the amendment, which now requires that the employer's actions be "virtually certain" to result in injury or death before it loses its immunity from tort liability.

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I wrote here about Brown, et al. v. Cassens Transport, Inc., a decision from the Sixth Circuit Court of Appeals which was originally issued on 7/10/2007.  Brown and his co-plaintiffs had brought a claim against Cassens Transport, Inc. (the self-insured employer), Crawford & Co. (its workers' compensation servicing agent), and Dr. Saul Margules (the plaintiffs' authorized treating physician) in which they alleged that the defendants had engaged in a pattern of racketeering that denied their workers' compensation claims in violation of the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"). 

 

Specifically, the plaintiffs alleged that Cassens and Crawford deliberately selected and paid unqualified doctors, including Margules, to give fraudulent medical opinions that would support the denial of workers' compensation benefits and that defendants ignored other medical evidence in denying them benefits.  The plaintiffs also claimed that the defendants made fraudulent communications among themselves and to the plaintiffs via mail and wire in violation of the mail and wire fraud statutes, serving as the "predicate acts" for their RICO claims.  You can view the full complaint here.

 

The federal district court for the Eastern District of Michigan dismissed the complaint, however, concluding (1) that the plaintiffs failed to allege that they had relied to their detriment upon the defendants' allegedly fraudulent communications and (2) that the complaint was "reverse preempted" by the McCarran-Ferguson Act, 15 U.S.C. §1012.  (McCarran-Ferguson generally prohibits Congress from legislating in the area of insurance law).  You can view the district court's order dismissing the complaint here.  In its original opinion, the Sixth Circuit agreed with the district court on the detrimental reliance issue and therefore affirmed the dismissal.  Because it affirmed the district court on this ground, it did not address the McCarran-Ferguson reverse preemption issue.

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Can an employee sue his employer in tort, and thus avoid the "exclusive remedy" provision of §440.11, Fla. Stat., where the employer is also a landowner and the suit is predicated upon the employer/landowner's failure to keep the premises in a reasonably safe condition?  No, said the Third District Court of Appeal in Elizabeth Arden, Inc. v. Saldana, decided on 10/15/2008. In so stating, the court distinguished its previous decision in U.S. Holdings, Inc. v. Belance, 922 So.2d 240 (Fla. 3d DCA 2006), which involved a premises liability suit against a parent corporation, not the employer corporation itself.

 

Nevertheless, one could argue that the court's statements here are dicta.  The court actually dismissed the employer/landowner's appeal because the trial court's order denying their motion for summary judgment "does not specifically state that workers' compensation immunity is unavailable as a defense."  See Fla. R. App. P. 9.130(a)(3)(C)(v); Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812 (Fla. 2004).

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Over the weekend, the St. Pete Times ran this heartrending story about James Dolan, a 34-year-old Radio Shack employee who was shot in the head by a gun-wielding assailant while on the job in 2004.  The attack not only left him totally blind, but suffering from post-traumatic stress syndrome as well.  His story was featured on the ABC television show Extreme Makeover Home Edition in 2005 after show's crew made his home handicapped-accessible.  You can see a clip from the show here.

 

But the story doesn't have a happy ending.  Mr. Dolan's wife had to quit her job in order to provide care for him.  The effect of that lost family income was compounded by the fact that the Dolans' property taxes and utility bills have increased because of the repairs to the home.

 

The Dolans requested Radio Shack's workers' compensation carrier, Liberty Mutual, to provide 12 hours per day in attendant care benefits to compensate Mrs. Dolan for the care that she has had to provide to her husband, but the carrier refused.  Instead, they hired vocational rehabilitation consultants who said not only that Mr. Dolan did not require any attendant care, but that he could actually return to work.  The JCC did award the requested benefits in this 2/13/2008 order, but Liberty Mutual appealed.  Fortunately for the Dolans, Liberty's attorney didn't file the notice of appeal within 30 days of the JCC's order, and the First DCA therefore dismissed the appeal. 

 

Exasperated with Liberty Mutual's handling of the claim, the Dolans have now sued them for intentional infliction of emotional distress.  Such causes of action against workers' compensation carriers were authorized by the Florida Supreme Court in Aguilera v. Inservices, Inc.  More on this deplorable situation later.

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Section 440.205, Fla. Stat., provides:

Coercion of employees.--No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law.

The Supreme Court of Florida has held that violation of this section by an employer creates a private cause of action in tort in favor of an employee.  See Smith v. Piezo Technology, 427 So.2d 182 (Fla. 1983).

 

In Thigpen v. UPS, Inc., decided by the Fourth DCA on 9/10/2008, UPS fired Thigpen, one of its delivery  drivers.  UPS insisted that Thigpen's employment was terminated because of his failure to deliver a package to a customer, but Thigpen asserted that this reason was pretextual.  The real reason, he said, was in order to retaliate against him for his having previously filed a workers' compensation claim.  In support of his claim, Thigpen introduced a company e-mail which had urged UPS supervisors to crack down on "injury repeaters," that is, on employees who had sustained multiple injuries on the job and who frequently sought workers' compensation benefits.  Thigpen had in fact been injured on the job on multiple occasions.  The jury agreed with Thigpen, awarding him $6M in damages, including about $670,000 in economic damages, and $5.3M in punitive damages.

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Dreggors v. Wausau Ins. Co., decided on 8/22/2008, is just the latest in a series of court cases arising out of the alleged commision of workers' compensation fraud by the claimant, his wife, and his attorney. Because the facts are so involved, I simply haven't had time to write about the cases before now, but those interested can read two of those decisions here and here.  See also State v. Dreggors, 813 So.2d 170 (Fla. 5th DCA 2002); Horning-Keating v. State, 777 So.2d 438 (Fla. 5th DCA 2001).

 

This particular case involved an action for defamation by the claimant and his wife against Wausau (the workers' compensation carrier) and Wausau's attorney because of the attorney's statements to Orlando's Channel 9 News in which he described the case against the Dreggors as "the biggest workers' compensation fraud case in the history of Florida."  Under Florida law, statements of "pure opinion" are constitutionally protected and are therefore not actionable.  Because the Fifth DCA concluded that the attorney's statements were expressions of "pure opinion," the court affirmed the award of summary judgment in favor of the insurer and the attorney.

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I hypothesized here about whether last year’s supreme court decision in Willis v. Gami Golden Glades, LLC, 967 So.2d 846 (Fla. 2007), might have the effect of increasing employer liability for “mental or nervous” injuries sustained as a result of certain workplace incidents. Of course, recovery for such injuries under the Florida Workers’ Compensation Law is barred unless they are accompanied by physical trauma sufficient to require medical treatment. See §440.093(1), Fla. Stat. But under Willis, recovery for mental injuries in tort is not barred by the “impact rule” where the plaintiff was at least touched, even if the touching results in no physical injury.

 

Now comes the First DCA’s decision in Futch v. Wal-Mart Stores, Inc., decided on 7/31/2008, which arguably bears out that hypothesis. There, Mrs. Futch, a Wal-Mart employee, was abducted at gunpoint from Wal-Mart’s parking lot by two assailants after she finished her shift one evening. After a four-hour drive, her assailants released her at a Waffle House located several hours from her home. Fortunately, she was not physically harmed in the incident.

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The First District Court of Appeal made quick work of a Jacksonville construction worker's constitutional challenge to the so-called "horizontal immunity" provision of the Florida Workers' Compensation Law which I discussed here.  Just three days after hearing oral argument, the court "PCA'd" , i.e., affirmed without written opinion, the lower court's judgment.  Note:  because the First District affirmed the lower court's ruling without a written opinion, the decision is not binding as precedent. 

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Last December, The Florida Times-Union carried this story about Gregory Aikens, a Jacksonville construction worker employed by subcontractor Dee Shoring Co., Inc., who was injured on the job due to the negligence of Miller Electric, another subcontractor on the same job. Aikens sued Miller Electric to recover for his injuries, and although the jury agreed that Miller Electric was indeed negligent, they specifically found that the company was not "grossly" negligent.  Therefore, judgment was entered for Miller Electric because of a 2003 amendment to §440.10, which raised the standard for recovery in suits by an employee of one subcontractor against another subcontractor from simple to gross negligence.  The amendment took effect just five days before his accident occurred.

 

Aikens has appealed the judgment to the First District Court of Appeal, contending, among other things, that the amendment is unconstitutional under Art. I, §21 ("access to courts") and Art. I, §2 ("equal protection"), Fla. Const. (Aikens v. Miller Electric, Case No. 1D07-6314).  Oral argument is set for July 15, but unfortunately, because the argument is set to take place in Jacksonville instead of Tallahassee, we'll be unable to watch.

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In 2003, the legislature redefined "accident" to make it more difficult to prove that workplace exposures to allegedly harmful substances are compensable under the Florida Workers' Compensation Law.  Specifically, §440.02(1) now provides that "[a]n injury or disease caused by exposure to a toxic substance. . . is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee" (emphasis added).

 

In Matrix Employee Leasing v. Pierce, decided on 6/18/2008, the First DCA reversed the order of the JCC which had found that the claimant had sustained a compensable exposure.  An IME physician, upon whose testimony the JCC relied, said that the claimant's respiratory problems were caused by her exposure to one of two chemicals.  He did not know, however, to which specific chemical the claimant was actually exposed, nor did he know the levels of any such exposure.  Therefore, the court concluded that there was "no competent substantial evidence" to support the JCC's finding that compensability of the respiratory problems had been established by "clear and convincing evidence."

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The 2008 Florida Legislature enacted Ch. 2008-123, the "Jeffrey Johnston Stand Up for All Students Act" which directs all school boards in Florida to develop and adopt policies to prohibit "bullying or harassment" of students or employees.  Does this law create an exception to the "exclusive remedy" provision for employees of a school board if the board fails to take sufficient steps to prevent bullying?  I admit I don't know, but this started me wondering whether laws specifically prohibiting "bullying" in the workplace in general could be far behind.

 

As it turns out, there have already been attempts around the country to enact such legislation.  See this list compiled by the Workplace Bullying Institute. These bills would explicitly create a private, non-workers' compensation cause of action in favor of an employee against an employer for allowing an "abusive work environment" to exist.  So far, no state has enacted legislation like this, but efforts are continuing.

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In Doe v. Footstar Corp., the Second DCA affirmed the trial court's judgment on the pleadings in favor of the employer and concluded that the employee's civil action against it was barred by the "exclusive remedy" provision of §440.11.  The employee (a minor, who brought the action through her parents) alleged in her complaint that Cooper, a co-employee, had assaulted and sexually battered her in the course of his employment with Footstar and that Footstar had negligently hired, retained, supervised, and trained Cooper.

 

The court had strongly hinted that it would reach this result when it considered this same case earlier.  In this opinion from 2006, the court concluded that it lacked jurisdiction to consider Footstar's appeal at that time under Fla.R.App.P. 9.130(a)(3)(C)(v).  That rule provides appellate courts jurisdiction over orders determining that, "as a matter of law, a party is not entitled to workers' compensation immunity."  The court concluded that the trial court had merely denied Footstar's motion for summary judgment, that the order did not state, as a matter of law, that Footstar was not entitled to workers' compensation immunity, and that it did not enter judgment against Footstar on the issue of workers' compensation immunity.

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In Tractor Supply Co. v. Kent, which I discussed here, the Fifth DCA held that an employer was not estopped from asserting workers' compensation immunity as a defense to a civil action by its injured employee merely because it contended that the employee's ongoing medical condition is no longer attributable to the on-the-job accident, but to a pre-existing condition.

 

Now the Second DCA has followed suit in Coca-Cola Enterprises, Inc. v. Monteil et al., decided on 5/14/2008. Monteil was injured in a compensable workers' compensation accident while working for Coca-Cola.  They paid him benefits after the accident for approximately twelve weeks, but then concluded that his ongoing medical condition was no longer related to his work injury, but to a pre-existing degenerative condition, and therefore controverted further benefits at that point.  Rather than filing a petition for benefits, Monteil sued Coca-Cola for negligence in allegedly causing his accident.  Coca-Cola moved for summary judgment, contending that the "exclusive remedy" provision of §440.11 barred the action, but Monteil successfully opposed the motion by contending that Coca-Cola, by controverting further benefits, was estopped from asserting the exclusive remedy defense.  The Second DCA disagreed and reversed.  Quoting Kent with approval, the court said:

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The "dual persona" doctrine, discussed only sparingly in Florida judicial decisions, is an exception to the "exclusive remedy" provision which bars most tort claims by an employee against his employer.  The doctrine permits an employee to pursue a tort claim against his employer where the corporate employer merges with a corporate third-party tortfeasor after the accident which caused the employee's injuries.  For example, in Percy v. Falcon Fabricators, Inc., 584 So.2d 17 (Fla. 3d DCA 1991), one of the few Florida decisions to address the doctrine, an employee was allowed to sue her employer when, after the manufacture of the defective product which injured the employee, the employer merged with the manufacturer of the product. 

 

In Griffin, Inc. v. Loomis, Fargo & Co., however, decided on 4/23/2008, the Second DCA refused to apply the doctrine to permit a claim for contribution by a third-party tortfeasor against the employer's successor corporation.  The facts of the case are a little complicated, but here goes:

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In Liberty Mutual Insurance Company v. Steadman, a case which I originally discussed here, the Second District Court of Appeal held that the allegations of Steadman's complaint, if true, would be sufficient to sustain an award of damages for intentional infliction of emotional distress by Liberty Mutual and its claims adjuster.  Previously, in Aguilera v. Inservices, Inc.,  the Florida Supreme Court had held that such claims are not barred by the "exclusive remedy" provision of §440.11, Fla. Stat.

 

Liberty Mutual had sought review of the Second District's decision in the Florida Supreme Court.  But in this 3/26/2008 order, the supreme court has now declined review.  Therefore, the case will now be returned to the circuit court for further proceedings.

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By a vote of 4-3, the Florida Supreme Court in this 3/20/2008 order has denied review of the Fifth District Court of Appeal's decision in Tractor Supply Company v. Kent, a case from last August which I discussed here and here.

 

The claimant in that case filed a tort claim against his employer after the workers' compensation carrier denied his workers' compensation claim on the grounds that his medical problems all stemmed from a pre-existing condition.  The Fifth DCA had held that this denial did not estop the employer from asserting workers' compensation immunity as a defense in the subsequent tort action.

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Although we can't tell the facts of the case from the Third DCA's brief opinion in City of Miami v. Gutierrez, decided on 3/12/2008, because of the First DCA cases and the statute cited in the opinion we can surmise that the case involved the estate of an employee suing his employer in tort for injuries sustained while the employee was engaged in some type of "recreational and social activity" connected with his employment.  The Third DCA held that since the employee was not in the course of his employment at the time of his accident, the employer was not entitled to immunity from tort liability. 

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Though Florida's annual legislative session is set to begin on March 4, so far only two bills have been filed which would meaningfully affect the area of workers' compensation. Those identical bills, SB 454 and HB 239, concern employee leasing companies. Under these proposed bills:

 

(1) the contract between the leasing company and the client company must provide that the leasing company will give notice to all leased employees as to whether their workers’ compensation coverage is being provided by the leasing company or by the client company;

(2) when the leasing company terminates its contractual relationship with the client company, the leasing company must give written notice of that fact, including the date of contract termination, to each leased employee at the employee's last known address;

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In Perez v. La Dove, Inc., a case which I wrote about here and here, the Third DCA held that an injured worker must specifically request his employer to preserve evidence critical to his third-party liability claim before liability for spoliation of evidence will arise against the employer.

 

The Florida Supreme Court has now declined to review that case in this 2/1/2008 order.

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The claimant/plaintiff in Tractor Supply Company v. Kent, a case which I wrote about here, has filed a notice to invoke the discretionary jurisdiction of the Florida Supreme Court.  In that case, the Fifth District Court of Appeal held that just because a workers' compensation carrier has previously denied an employee's workers' compensation claim, the employer is not necessarily estopped from asserting workers' compensation immunity as an affirmative defense to the employee's subsequent liability claim against the employer. 

 

Kent argues that the Fifth District's decision "expressly and directly conflicts" with three previous decisions from the First District Court of Appeal.  (I had suggested in my initial post that the Fifth District's decision in Kent was actually inconsistent with its own previous decision in Byerly v. Citrus Publishing, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999).  Even if true, however, intra-district conflict is insufficient to permit Supreme Court review.  There must be inter-district conflict in order for the supreme court to have jurisdiction under Art V, §3(b)(3), Fla. Const.).  You can read his jurisdictional brief here.

 

The employer/defendant, of course, suggests there is no conflict.  You can read the employer's jurisdictional brief here.

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The plaintiff/claimant has filed her jurisdictional answer brief in the Florida Supreme Court in the case of Liberty Mutual Insurance Company v. Steadman (For previous posts about this case, see here, here, and here).  The brief, which you can read here, says that the allegations of her complaint against Liberty Mutual and its claims adjuster are sufficient to state a claim for intentional infliction of emotional distress because those allegations go far beyond alleging a "mere delay" in providing medical benefits or a "minor delay" in the claims process. 

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In Liberty Mutual Ins. Co. v. Steadman, a case which I wrote about here and here, the Second District Court of Appeal held that Steadman's complaint, which alleged that Liberty Mutual had refused to authorize treatment for her life-threatening medical condition even after the JCC ordered them to do so, stated a valid claim for intentional infliction of emotional stress.

 

In seeking review of this decision by the Florida Supreme Court, Liberty Mutual contends that the Second District's decision conflicts with the supreme court's decision in Aguilera v. Inservices, Inc.  In Aguilera, says the insurer, the supreme court expressly held that a "mere delay in payments" is insufficient to avoid the "exclusive remedy" provision.  You can read the brief by clicking here.

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Although it's difficult to tell all of the facts from the Court's brief opinion, it would appear that the employee had an employment contract with his employer in which he agreed to arbitrate rather than litigate any employment-related claims under the "Employment Retirement Income Security Act, Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Americans with Disabilities Act, the Older Workers' Benefits Protection Act, as well as all other federal, state, and local employment-related laws, regulations, rules or theories."  The contract specifically excluded from arbitration, however, those claims brought under "the workers' compensation laws." 

 

 

The employee here brought suit against the employer for malicious prosecution.  The Third DCA held that "the instant claim stems directly from [the employer's] actions during the workers' compensation case," and therefore "it is not arbitrable under the parties' agreement."  Although the opinion doesn't say so, I suspect that this must stem from some allegedly false accusation of workers' compensation fraud.  Cross v. Braman Motors, Inc. 

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One of the many changes wrought by the 2003 amendments to the Florida Workers' Compensation Law was a change regarding immunity from tort liability for subcontractors on construction jobs.  Specifically, the 2003 amendment to §440.10 now provides so-called "horizontal immunity" from tort liability for injuries to employees of other subcontractors provided that: (1) the defendant subcontractor has secured workers' compensation insurance coverage for its own employees; and (2) the defendant subcontractor's own "gross negligence" was not the "major contributing cause" of the injuries.  Here's an article from the 12/4/2007 edition of the Florida Times-Union which illustrates the effect of this amendment in one case.

 

One of the attorneys quoted in the article questions the constitutionality of this amendment.  I'm not sure what the courts would say about this.  On the one hand, the Florida Supreme Court held that a 1971 amendment to §440.11 was an unconstitutional denial of "access to courts"  [see Art. I, §21, Fla. Const.] insofar as it purported to abolish a cause of action for indemnity against an employer by a third-party tortfeasor.  See Sunspan Engineering & Const. Co. v. Spring-Lock Scaffolding Co., 310 So.2d 4 (Fla. 1975).  On the other hand, that court later held that a 1978 amendment to §440.11 which raised the standard for bringing a liability claim against a co-worker of the same employer from simple negligence to "gross negligence" did not deny the injured worker access to courts.  See Iglesia v. Floran, 394 So.2d 994 (Fla. 1981).

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On 11/30/2007, Liberty Mutual filed a Notice to Invoke the Discretionary Jurisdiction of the Florida Supreme Court in the case of Liberty Mutual v. Steadman, a Second DCA decision which I discussed here.  The Second DCA held in that case that Steadman's complaint, which alleged that Liberty Mutual had engaged in a number of "outrageous" acts in the handling of Steadman's workers' compensation claim, stated a valid cause of action for intentional infliction of emotional distress.

 

Because no conflict or question of great public importance was certified by the district court of appeal, I assume that Liberty Mutual will contend that Supreme Court jurisdiction exists on the grounds that the decision "expressly and directly conflicts" with a previous decision of the Supreme Court or with that of another district court of appeal.

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The Florida Supreme Court recently declined review in two cases and accepted review in another where the employees had alleged that their employers were guilty of committing an intentional tort against them.

 

In Pendergrass v. R.D. Michaels, Inc., the Fourth DCA held that the estate of a worker killed in a construction accident had no cause of action in tort against his corporate employer under the "criminal acts" exception to §440.11 because that exception applies only to individuals.  The Court also held that even though OSHA had cited the employer for a "wilful violation" of an OSHA regulation, that fact was insufficient to show a "substantial certainty" that the violation of that regulation would result in injury or death.

 

In Bourassa v. Busch Entertainment Corp., the Second DCA held that the employer was not liable in tort where an animal trainer lost her arm in an accident while working with a lion.  Although the employer knew the lion was extremely dangerous, it had a comprehensive training program for employees working with the lion and there had been no previous incidents involving the animal.

 

You can read the orders declining to grant review here and here.

 

But in Casas v. Siemens Energy and Automation, Inc., the Supreme Court quashed the 2006 decision of the Third DCA and remanded the case to the court for reconsideration in light of its recent decision in Bakerman v. The Bombay Co., Inc.  In the decision below, the Third DCA held that the employee's tort claim against his employer was barred because there was no proof that the employer had deliberately concealed the risk of injury from the employee.  But in Bakerman, the Supreme Court held that an employee need not present such proof in order to avoid the exclusive remedy provision of §440.11.

 

Note:  Casas, like Bakerman, involved an accident that occurred prior to the 2003 amendment to §440.11.  Under that amendment, proof of intentional concealment of the risk of injury by the employer is a necessary element of proof if the employee is to escape the exclusive remedy provision.

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The plaintiff in Perez v. La Dove, Inc., a decision from the Third DCA which I wrote about here, has filed a notice to invoke the discretionary jurisdiction of the Florida Supreme Court.  The basis alleged for Supreme Court jurisdiction is that the Third DCA's decision "expressly and directly" conflicts with the Fourth DCA's decision in Builder's Square v. Shaw, 755 So.2d 721 (Fla. 4th DCA 1999). 

 

The issue is whether an employee has a viable claim for "spoliation of evidence" against his employer for failure to preserve evidence relevant to his third-party liability claim if he never actually requested the employer to preserve such evidence.  In Shaw, the Fourth DCA held that the employer's duty to preserve relevant evidence arises even in the absence of an express request by the employee to do so under circumstances where the employer reasonably should know that such litigation is likely to occur.  You can read Perez's brief on jurisdiction here.

 

La Dove, Inc., has filed a brief disputing that the Supreme Court has jurisdiction.  According to their jurisdictional brief, the Fourth  DCA has actually receded from its Shaw decision in Royal & Sunalliance v. Lauderdale Marine Center, 877 So.2d 843 (Fla. 4th DCA 2004). Therefore, says the employer, there is no inter-district conflict. You can read their brief here.

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In Willis v. Gami Golden Glades, LLC. and Florida Department of Corrections v. Abril, both decided by  4-3 majorities on 10/18/2007, the Florida Supreme Court limited the circumstances under which a plaintiff's recovery for psychological injuries in a personal injury case can be barred by the "impact rule."  Although neither of these decisions is a workers' compensation case, I think they could have an "impact" on an employee's ability to recover from his employer for workplace injuries due to "fright or excitement only" in some cases.

 

So what is the "impact rule?"  It's the court-made rule which says that a personal injury plaintiff may recover against a negligent tortfeasor for psychological injuries only if those injuries are accompanied by some physical "impact." [The impact rule doesn't apply to intentional tort cases like defamation, intentional infliction of emotional distress, breach of fiduciary duty, etc.].  Just how much of an "impact" is required in order to permit the award of damages for mental injuries in these cases?   That's what was at issue in Willis.

 

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"Spoliation of evidence" refers to the destruction of or failure to preserve evidence that is relevant to a lawsuit.  In Martino v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla. 2005), the Florida Supreme Court recognized that there are two different kinds of spoliation claims - "first-party" claims where "the defendant who allegedly lost, misplaced or destroyed the evidence was also a tortfeasor in causing the plaintiff's injuries or damages," and "third-party" claims where "a person or entity, though not a party to the underlying action causing the plaintiff's injuries or damages, lost misplaced, or destroyed evidence critical to that action."  In Martino, the supreme court held that Florida does not recognize an independent cause of action for "first party" spoliation.  Rather, the plaintiff in such cases is entitled to a presumption that the defendant's conduct was negligent.

 

Third-party spoliation claims can arise in the workers' compensation context  because in Florida an injured worker retains his right to pursue an action against  a "third-party" tortfeasor who may have been responsible for his on-the-job accident. (In this instance, "third party" refers to parties other than the employer and the claimant's co-employees, who in most instances are immune from tort liability).  Under §440.39(7), Fla. Stat., the employer has a "duty to cooperate" with the employee in pursuing any such claim.  Thus, questions can arise whether the employer, by its actions or inactions, may have impeded the claimant in pursuing his third-party liability claim.  That's what happened in Perez v. La Dove, Inc., decided by the Third District Court of Appeal on 9/12/2007.

 

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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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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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Here's an interesting case from the Sixth Circuit U.S. Court of Appeals, decided on 7/10/2007.  The plaintiffs there were injured workers who alleged that, in order to deprive them of benefits under the Michigan Workers' Disability Compensation Act,  their self-insured employer, its workers' compensation servicing agent, and the authorized treating physician had sent fraudulent communications among themselves and to the plaintiffs by mail and by wire in violation of federal law, and that these violations constituted the  "predicate acts" necessary to state a civil cause of action against them for violation of the federal Racketeer Influenced and Corrupt Organizations Act ("RICO").

 

In a 2-1 decision, the Sixth Circuit affimed the federal district court's dismissal of the complaint for failure to state a cause of action - but not because the plaintiffs' allegations of mail and wire fraud were insufficient.  Under the law prevailing in the Sixth Circuit (covering Kentucky, Michigan, Ohio, and Tennessee), a plaintiff alleging a RICO violation must allege and prove that he relied upon the defendants' alleged fraudulent acts.  [RICO provides a private right of action and treble damages for "any person injured in his business or property by reason of a violation" of the act].  Because allegations of detrimental reliance were absent from the plaintiffs' complaint, the appellate court agreed that the complaint failed to state a cause of action.  Nevertheless, two of the three judges argued that the issue should be considered by the entire Court sitting en banc. 

 

Thanks to How Appealing for the heads up on this case.

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As in most other states, a Florida employer enjoys immunity from tort liability to its employees for almost all workplace injuries.  Instead, the benefits provided by the Florida Workers' Compensation Act provide the "exclusive remedy" for such injuries.  One exception to that rule of exclusivity, however, applies when the employer has intentionally harmed its employee.  In such cases, the employee is entitled to recover from the employer not just a percentage of his lost wages and his medical bills, but also non-economic damages such as "pain and suffering," "mental anguish," "loss of consortium," and the like.  But what kind of proof is necessary to demonstrate such employer intent?  That issue was the subject of the Florida Supreme Court's 6/21/2007 decision in Bakerman v. The Bombay Company, Inc.

 

The Court had previously held that where the employer engaged in conduct which was "substantially certain" to cause harm to the employee, then the employer is subject to tort liability for the employee's resulting injuries.  In Bakerman, the Court held 4-3 that in establishing "substantial certainty," the employee need not prove that the employer deliberately concealed a known danger to the employee.

 

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If workers' compensation cases in the Florida Supreme Court are rare, they might be even rarer in the federal courts.  But in Locke v. SunTrust Bank, the Eleventh Circuit Court of Appeals in Atlanta has recently weighed in on a question of workers' compensation immunity under the Florida Workers' Compensation Act. 

 

The plaintiff here was shot during a robbery of the SunTrust bank branch in Winter Haven where she worked.  Rather than claiming workers' compensation benefits, she elected to file a tort suit against her employer.  In order to get around the "exclusive remedy" provisions of s.440.11, Fla. Stat., she alleged in her complaint that SunTrust's actions - or in this case inactions - were so reckless and outrageous that an injury to her was "substantially certain" to have occurred. 

 

Specifically, she alleged that her branch had been robbed before, during which another teller had been pistol-whipped.  Although SunTrust had allegedly thereafter hired a security guard, the guard wasn't on duty on the day of the robbery here because SunTrust had decided to eliminate the security guard's position "for economic reasons."  SunTrust also allegedly failed to take a variety of other actions which would have protected the plaintiff from harm.  The federal district court dismissed her complaint, but she appealed to the Eleventh Circuit.

 

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