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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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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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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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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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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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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