In 1911, following the Triangle Waist Company Fire, the country began to
debate “The Great Trade-off” between labor and industry began
which led to the creation of the modern concept of workers’ compensation
in Florida. In order for workers’ compensation to work properly,
both sides had to compromise rights formerly determined to be guaranteed
by the U.S. Constitution through the Fifth Amendment right to Due Process.
Specifically, the employer agreed to pay medical bills and lost wages,
regardless of fault; and the employee agreed to give up the right to sue.
Florida’s Fourth District Court of Appeal decided to take a giant
step toward ending the compromise this week in the matter of
Gil v. Tenet Health System North Shore, Inc. In
Gil, the surviving spouse of a deceased employee of the hospital sued them
in circuit court for wrongful death alleging that her husband was exposed
to lethal intoxicants at work which caused him to get cancer which led
to his death.
The widow first tried to secure death benefits through workers’ compensation
but was told by the hospital that her deceased husband’s illness
was not work-related and subsequently filed a formal denial asserting
“Entire claim denied as claimant’s employment is not the major
contributing cause of his death.”
The employer moved for Summary Judgment asserting the affirmative defense
of workers’ compensation immunity pursuant to the statutory protection
from suit contained in
Florida Statutes §440.11 which states:
The liability of an employer prescribed in s. 440.10 shall be exclusive
and in place of all other liability, including vicarious liability, of
such employer to any third-party tortfeasor and to the employee, the legal
representative thereof, husband or wife, parents, dependents, next of
kin, and anyone otherwise entitled to recover damages from such employer
at law or in admiralty on account of such injury or death …
The claimant responded to the motion by asserting that the employer was
“estopped” from claiming workers’ compensation immunity
pursuant the line of cases following the line of cases stemming from the
prior Fifth DCA decision in
Tractor Supply Co. v. Kent which prevents and employer from taking inconsistent positions when defending
the workers’ compensation matter and the civil lawsuit. Essentially,
the employer cannot assert a claim to not fall within the jurisdiction
of the workers’ compensation system when defending the workers’
compensation matter and then assert the claim to be immune from lawsuit
in a civil matter because workers’ compensation is the employee’s
exclusive remedy. To illustrate, a supermarket cannot deny compensability
of a workers’ compensation claim filed by an employee who slips
and falls at work while buying groceries at the end of the shift by mounting
a defense premised on the assertion that the employee
was not injured within the “course and scope” of employment and then
move for summary judgement in a subsequent civil negligence action on
the basis that the employer is immune from lawsuit because the employee
was injured while in the “course and scope” of employment.
Despite being a believer in free market capitalism who only represents
employers and insurance companies, even I can appreciate that logic. However,
as with all legal concepts, plaintiff attorneys must always try to lower
the bar set by an exception to a rule. However, the appellate courts have
consistently limited the
Tractor Supply Co. case to its facts.
In
Fly & Form, Inc. v. Marquez, 19 So.3d 403 (Fla. 3d DCA 2009), the Employer provided benefits until
it learned that the claimant had used a false social security number.
The case was denied on those grounds. The claimant filed a civil claim
and Fly & Form moved for summary judgment on the basis of workers’
compensation immunity. The trial court denied the motion, but the Third
DCA held that a denial on these grounds did not preclude the company from
the defense of workers’ compensation immunity. Additionally, in
Coca-Cola Enterprises, Inc. v. Montiel, 985 So.2d 19 (Fla. 2d DCA 2008), the Employer provided workers’
compensation benefits for 12 weeks following the accident. At that point,
the doctors opined that the claimant’s condition was no longer causally
related to the workplace accident. The Employer then denied ongoing care
and the claimant filed a civil claim. Coca-Cola moved for summary judgment
which the trial court denied but the Second DCA reversed, stating “[w]e
are aware of no statutory provision that, under these circumstances, strips
the employer of the exclusivity defense. To read such a result into the
statute would be contrary to the purpose of the law.”
Id. at 20. See also
Elliott v. Dugger, 579 So.2d 827 (Fla. Dist. Ct. App. 1991) (simply raising the defense
that claimant did not meet burden of prove in establishing disability
does not result in a waiver of the workers’ compensation immunity
defense in civil court).
The first problem with the Gil in evaluating whether an employer is taking
“inconsistent positions” is that it seems to change the focus from the
actual reasoning behind the denial to the claimant’s
perception of the denial. Consequently, if the claimant perceives the denial to be
one that denies coverage, then it is up to a jury to decide whether that
perception to be justified. The Florida Supreme Court has already found
that reasoning to be flawed in the recent matter of
Castellanos v. Next Door Company in which the Court concluded that “the workers’ compensation
system has become increasingly complex to the detriment of the claimant,
who depends on the assistance of a competent attorney to navigate the
thicket.” The Court pointed out specific examples in a footnote
as follows:
To name just a few of the ways in which the workers’ compensation
system has become increasingly complex and difficult, if not impossible,
for an injured worker to successfully navigate without the assistance
of an attorney: (1) the elimination of the provision that the workers’
compensation law be liberally construed in favor of the injured worker,
§440.015, Fla. Stat.; (2) reductions in the duration of temporary
benefits, §440.15(2)(a), Fla. Stat.; (3) an extensive fraud and penalty
provision, §440.105, Fla. Stat.; (4) a heightened standard of “major
contributing cause” that applies in a majority of cases rather than
the less stringent “proximate cause” standard in civil cases,
§440.09(1), Fla. Stat.; (5) a heightened burden of proof of “clear
and convincing evidence” in some types of cases, §§440.02(1),
440.09(1), Fla. Stat.; (6) the elimination of the “opt out”
provision, §§440.015, 440.03, Fla. Stat.; and (7) the addition
of an offer of settlement provision that allows only the employer, and
not the claimant, to make an offer to settle, §440.34(2), Fla. Stat.
Therefore, according to this reasoning in the
Gil matter, the 4th DCA is expecting the insurance adjuster to provide unambiguous
language in a form denial that will somehow explain the concept of compensability
in lay-terms based on what a reasonable person not familiar with the workers’
compensation system should understand. This is actually ironic considering
that the 4th DCA actually misstates the elements of a compensable injury.
When referring to the element of medical causation, the Court states that
the Major Contributing Cause Defense contemplates “the employee
suffering a ‘compensable injury’ but asserts that the compensable
injury is not the major contributing cause for the employee’s ‘need
for treatment.’” However, the Court seems to be unaware the
concept of “major contributing cause” as is used earlier in
statute in Section 440.02(36) in which it is used in a different concept:
“Arising out of” pertains to occupational causation. An accidental
injury or death arises out of employment if work performed in the course
and scope of employment is the
major contributing cause of the injury or death.
Moreover, Section 440.02(19) defines “injury” in the context
of compensability as “personal injury or death by accident
arising out of and
in the course of employment, and such diseases or infection as naturally or unavoidably result from
such injury. Consequently, for an injury to be compensable, it must fit
both prongs; (1) “arising out of” and (2) “course of
employment.” Therefore, an injury cannot be considered “compensable”
unless both prongs are met. Simply meeting the “course of employment”
prong does not make the accident compensable. It must also meet the “arising
out of” prong which is explained well in the matter of
Sentry
Insurance
Company
v.
Hamlin,
69 So.3d 1065 (Fla. 1st DCA 2011). The elements of “arising out of” are listed in the Hamlin
decision quite well. For
an
injury
to
“arise
out of
work”, the accident:
1.
Must be
causally
connected
to
the
claimant’s
employment;
2.
Must have
had
its
origin
in
some
risk
incident
to
or
connected
with
the
employment; or
3.
Must flow
from
the
employment
as
a
natural
consequence.
The First DCA further explains the concept of “course and scope of
employment” in the matter of
Sentry Insurance Company v. Hamlin, 69 So.3d 1065 (Fla. 1st DCA 2011) which states the “‘course
and scope of employment’ phrase defines the ‘work performed’
that the injury must ‘arise out of.’ The Court points out
that an accident is not compensable under Chapter 440 if it results from
an injury which does not “arise out of”, but does occur, in
the “course and scope of employment.”
In
Gil, the 4th DCA put the “cart before the horse.” The decision
presumes that meeting the element of “course and scope of employment”
only is sufficient for the accident to be compensable and that the major
contributing cause defense can only be incorporated
after compensability has been already been established. This is where the
Gil “train” derailed in its reasoning. The
Gil Court is suggesting that an insurance adjuster must overtly and clearly
concede to compensability before a denial can be claimed based on medical
causation in order for the employer to benefit from the protection of
workers’ compensation immunity.
This goes light-years beyond what seems to have even been remotely contemplated by the
Tractor Supply Company Court. Moreover, if this decision stands, it may be more detrimental to
Florida Employers than the devastation already realized following the
Supreme Court Decisions in Castellanos and Westphal which led to the 14.5
percent WC premium increase that goes into effect for new policies written
after December 1, 2016.
There are even more unintended consequences flowing from the
Gil Decision. Section 440.20(4) states:
If the carrier is uncertain of its obligation to provide all benefits or
compensation, the carrier shall immediately and in good faith commence
investigation of the employee’s entitlement to benefits under this
chapter and
shall admit or deny compensability within 120 days after the initial provision of compensation or benefits as required under subsection
(2) or s. 440.192(8).
The
Gil decision forces the carrier to “admit or deny” compensability
well prior to the 120th day after the initial provision of compensation
if the employer is to benefit from the WC Immunity defense to a civil
lawsuit. This is most obvious in the instance when a Petition for Benefits
is filed in the workers’ compensation matter immediately following
the accident as the Employer has only 30 days to respond to the Petition
for Benefits. Hopefully, the Florida Supreme Court is being asked to review
the Gil decision as it is clearly a matter of great public importance
as the survival of Industry in the State of Florida depends on this decision
being reversed.