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.