The Florida Supreme Court held F. S. 440.34 unconstitutional in Castellanos v. Next Door Company on April 28, 2016. The Florida Supreme Court’s decision will provide injured workers with many more opportunity to hire a lawyer when lawyers were no longer willing to accept worker’s compensation cases because of the statutory limitation placed on the Judge’s discretion to award a reasonable attorney ‘s fee of $300 to $350.00 per hour to the lawyer who successfully secured benefits for an injured worker.

Before April 28, 2016 any lawyer who sought to be compensated by the hour could not do so because of F. S. 440.34 which limited a claimant’s lawyer to a fixed fee schedule.

In Castellanos, the claimant’s lawyer expended 107.2 hours of work to obtain for the client a benefit which was denied by the employer that had an actual value to the client of $822.70.

In Castellanos, the lawyer was awarded $1.53 per hour for his fee of $164.01. The worker’s compensation judge and the appellate court had to affirm the award because of the statutory sliding scale capping lawyer’s fees for expended in these cases for injured claimants.

Both the Judge of the Compensation Claims (JCC) and the appellate court found the hours expended by the claimant’s lawyer to be “reasonable and necessary” in litigating this complex case.

The right of an injured worker to recover a reasonable prevailing party attorney’s fee has been a key feature of the state’s workers’ compensation law since 1941. Through the 2009 enactment of a mandatory fee schedule, however, the Legislature has created an irrebuttable presumption that every fee calculated in accordance with the fee schedule will be reasonable to compensate the attorney for his or her services. The $1.53 hourly rate in this case clearly demonstrates that not to be true.

The Supreme Court concluded that the mandatory fee schedule is unconstitutional as a violation of due process under both the Florida and United States Constitutions. Accordingly, we answer the rephrased certified question in the affirmative, quash the First District’s decision upholding the patently unreasonable fee award, and direct that this case be remanded to the JCC for entry of a reasonable attorney’s fee.

The decision now will expand the injured worker’s ability to find a lawyer who has devoted his or her time and efforts to representing only injured persons in the State of Florida.

John M. Byers, Jr. [Officer Byers] died as a result of an accident that occurred on Ocean Reef the day after Hurricane Andrew. The accident occurred when a backhoe, which was taken without permission, was being used to push a tree.

The Estate filed a wrongful death action against Officer Byers’ supervisors, Ritz and Barcinas, based on the “criminal acts” exception to worker’s compensation immunity. § 440.11(1), Fla. Stat. (1991).

Following discovery, the trial court granted partial summary judgment in favor of the Estate finding that “the use and taking of the backhoe constituted a violation of law for which the maximum penalty exceeds sixty days.”

The trial court, however, did not make any findings as to who committed the theft. The defendants defended the action, in part, by claiming that there was no theft of the backhoe because its taking was justified by the emergency present at the time.

At trial, the evidence showed that Ritz was the community administrator of the Ocean Reef Community Association [ORCA]. Two of ORCA’s departments were the Ocean Reef Public Safety Department and the Ocean Reef Volunteer Fire Department [collectively referred to as Departments].

Barcinas was the captain of the Departments, and Byers was an officer of the Departments. The day after Hurricane Andrew, Officer Byers and his co-workers were manually clearing debris and trees. Officer Delgado, one of Officer Byers’ co-workers, saw a backhoe that was owned by a construction company at a local gas station.

Officer Delgado testified that he went back to the command center to share this information with Ritz, Barcinas, and others. The consensus of the group, including Ritz and Barcinas, was that using this backhoe was a good idea.

Officer Delgado then went back to the gas station and hot-wired the backhoe without attempting to contact the owner because there was no phone service. Officer Delgado used the backhoe to clear debris at the Public Safety Building. Several of Officer Byers’ co-workers testified that Ritz and Barcinas either gave instruction to Officer Delgado regarding the use of the backhoe or saw Delgado operate the backhoe. Later that day, as instructed, Officers Delgado and Byers went to Sunset Cay to remove a large tree that had fallen across the road. While they were removing the tree, the fatal accident occurred.

At trial, Ritz testified that he did not remember one way or the other whether he had talked to Delgado regarding the backhoe. Barcinas, however, testified that he did not authorize the use of the backhoe.

The Estate requested that the jury be given the following jury instruction on theft which is derived directly from the Florida Standard Jury Instructions (Criminal):

A theft is committed when a person knowingly obtains or uses the property of another with the intent to either temporarily or permanently appropriate the property to his own use or to the use of any person or entity not entitled to it. “Obtains or uses” means any manner of taking or exercising control over the property or making any unauthorized use, disposition or transfer of the property.

The trial court, however, refused to give the last sentence of the instruction defining the term “obtains or uses.” The trial court, over the Estate’s objection, also instructed the jury on the defense of necessity, after denying the defendants’ motion for directed verdict on that defense.

The jury found that neither defendant was guilty of theft, and therefore, did not answer the remaining questions on the verdict form. Thereafter, the Estate’s motion for new trial was denied. This appeal and cross appeal followed.

First, we agree with the Estate that the trial court committed reversible error by not instructing the jury with the complete instruction on criminal theft where the requested instruction contained an accurate statement of the law, the facts in the case supported the giving of the complete instruction, and the instruction, as requested, was necessary for the jury to properly resolve the issues in this case. L.K. v. Water’s Edge Ass’n, 532 So. 2d 1097, 1098 (Fla. 3d DCA 1988).

On cross appeal, the defendants contend that the trial court erred by denying their motion for summary judgment on the issue of worker’s compensation immunity. We disagree.

Specifically, the defendants contend that the “criminal acts” exception to worker’s compensation immunity is not applicable in the instant case. Pursuant to section 440.11(1), Florida Statutes (1991), the “criminal acts” exception is applicable when “the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of a law, whether or not a violation was charged, for which the maximum penalty which may be imposed exceeds 60 days imprisonment as set forth in s. 775.082. . . .”

Although Officer Byers’ injury did not occur during the theft of the backhoe, we agree that the theft of the backhoe “caused the alleged injury.” The evidence demonstrated that Officer Byers would not have been injured if a backhoe was not being used to move the tree. Therefore, we find that the “criminal acts” exception is applicable and that the trial court properly granted the Estate’s motion for summary judgment on the issue of worker’s compensation immunity.

Because we are reversing and remanding for a new trial, we address one other issue raised by the Estate. The Estate argues that the trial court erred by instructing the jury on the defense of necessity. We agree.

A defendant is entitled to have the jury instructed on his theory of defense if there is any evidence presented which supports the defendant’s theory. Bozeman v. State, 714 So. 2d 570, 572 (Fla. 1st DCA 1998); L.K., 532 So. 2d at 1098. In order to have a jury instructed on the defense of necessity, the evidence must show

(1) that the defendant reasonably believed that his action was necessary to avoid an imminent threat of death or serious bodily injury to himself or others,

(2) that the defendant did not intentionally or recklessly place himself in a situation in which it would be probable that he would be forced to choose the criminal conduct,

(3) that there existed no other adequate means to avoid the threatened harm except the criminal conduct,

(4) that the harm sought to be avoided was more egregious than the criminal conduct perpetrated to avoid it, and (5) that the defendant ceased the criminal conduct as soon as the necessity or apparent necessity for it ended.

The evidence at trial established that the backhoe was merely taken to expedite the clearing of trees and debris following Hurricane Andrew. When the theft of the backhoe occurred, there was no indication that either the trees or the debris posed an immediate danger to anyone.

Therefore, we agree with the Estate that the trial court improperly instructed the injury on the defense of necessity where the evidence failed to establish that the theft of the backhoe was “necessary to avoid an imminent threat of death or serious bodily injury to himself or others.”

In our opinion, the remaining issues raised by the parties lack merit.

Reversed and remanded.

The Florida Workers’ Compensation Act requires that the rating that is given by the injured worker’s expert must be based on the condition of the injured worker at the time he has reach maximum medical improvement (MMI). If the expert testifies that the injured worker’s permanency rating may be lower if a certain treatment is given then the MMI rating is invalid and any award by the workers’ compensation judge will be reversed.

In one Florida case, the judge determined that the injured worker’s impairment rating as a result of a work related TMJ injury was eight percent which was reversed by the appellate court.

The employer/ carrier sought reversal of the JCC’s determination that the injured worker’s temporo-mandibular joint (TMJ) condition caused an eight percent impairment, because such determination is not supported by competent substantial evidence. The appellate court agreed and reversed.

The injured worker had the burden of proving that his TMJ impairment existed by presentation of expert medical opinion.

This evidence was presented by the testimony of Dr. Monteleone who opined that the injured worker at that time, had a “permanent injury” of eight percent, but further opined that the splint therapy he was recommending for worker treatment could cause a reduction in the worker’s impairment rating to “maybe less than five” percent.

Significantly, when addressing the injured worker’ TMJ, he stated that “[i]f she underwent the splint therapy, then we’d have to examine her again to see where she is.”The injured worker underwent splint therapy, but Dr. Monteleone’s deposition was not updated before the final hearing on January 21, 2004.

The doctor did fill out a report relating to maximum medical improvement (MMI) that designated “N/A” in a blank space labeled “percentage of permanent impairment to body as a whole” and followed by a “%” symbol.

This report and Dr. Monteleone’s deposition were presented to the JCC to support the workers’ impairment rating of eight percent from her TMJ. Such evidence does not constitute competent substantial evidence to support an eight percent impairment rating for the injured worker.

The injured worker has the burden to prove by competent substantial evidence the extent of her TMJ impairment from her condition after she reaches MMI. See Minton-Sun, Inc. v. Hills, 563 So. 2d 162, 164 (Fla. 1st DCA 1990).

Here, the injured worker fails to do so; her impairment rating before undergoing splint therapy does not support an impairment rating after the treatment. Cf. Delgado v. Omni Hotel, 643 So. 2d 1185, 1186 (Fla. 1st DCA 1994) (holding that a “finding of MMI is precluded where treatment is being rendered with a reasonable expectation that it will bring about some degree of recovery, even if that treatment ultimately proves ineffective”) (citation omitted).

It was the injured worker’s burden to prove by competent substantial evidence her impairment after splint therapy; Appellee failed to do so.

REVERSED and REMANDED.

When a consumer or worker’s claim is in litigation, the defense lawyers for insurance company will hire non-medical personnel to offer opinions on medical issues which are disguised by the use of words to create doubt as to the cause of the injury. This is mostly commonly seen when bio-mechanical engineers are called to use laws of physics and engineering to state that “my analysis of the crush damage sustained by cars from the pictures of the vehicles which I have reviewed, that there was not enough force generated from the collision to have caused any injury to the occupant ” How can that be since the client is hurt and his or her doctor said it was from the collision and its permanent. The engineer is not a medical doctor and only a medical doctor can deal with medical causation of an injury.

Anyway, another example is a Florida case where the lawyers for the workers compensation carrier used a toxicologist to confuse a workers’ compensation judge as to the “comparability” of a worker’s injury.

In April 2008, the Employer hired Claimant as an outdoor laborer. On April 12, 2008, Claimant arrived at his assigned jobsite at 7:00 a.m. and, at approximately 2:30 p.m., while nailing a piece of wood to a bridge, Claimant collapsed and fell to the ground. Claimant’s co-workers took him to Palm Beach County Fire Rescue where EMTs diagnosed Claimant with possible heatstroke and took him to Glades General Hospital. Claimant’s admitting diagnoses at the hospital were hyperthermia, heatstroke, and respiratory failure. Claimant was examined by various physicians and was eventually discharged from the hospital on May 16, 2008. Claimant was thereafter transferred to multiple nursing homes and rehabilitation centers for continued care.

Claimant’s medical history reveals a lengthy history of alcohol abuse and alcohol-related accidents including multiple diagnoses of chronic alcoholism and alcohol dependence.

Claimant’s medical records indicate that Claimant’s girlfriend told the staff at the hospital that he had been drinking 12-24 beers three times per week, taking Zanax for anxiety, and smoking three packs of cigarettes per day. Claimant testified, however, that he had not consumed alcohol in the three months preceding the accident. Claimant passed an employment drug test on April 10, 2008, prior to being hired by the Employer, and there was no alcohol in Claimant’s system on the date of the accident.

Between August 6, 2008, and December 26, 2008, Claimant filed multiple petitions for benefits seeking, in relevant part, compensability of the April 12, 2008, accident and resulting injuries; catastrophic temporary total disability benefits beginning April 12, 2008, and continuing; authorization and payment of various outstanding medical bills; and penalties, interests, costs, and attorney’s fees.

The Employer/Carrier (E/C) denied the claim entirely, arguing, in relevant part, that Claimant’s condition is personal in nature, that his employment is not the major contributing cause (MCC) of his condition, that Claimant’s condition is the by-product of long-term alcoholism, drug abuse, tobacco use, and other disease processes having nothing to do with his employment, and that the claim is barred pursuant to section 440.02(1), Florida Statutes (2007), as an accidental acceleration or aggravation of a disease due to the habitual use of alcohol.

Both parties exercised their right to independent medical examinations (IMEs). Claimant’s independent medical examiner, Dr. Morariu, diagnosed Claimant with encephalopathy caused by heatstroke.

Dr. Morariu opined Claimant’s collapse was caused by heatstroke, which was 51% or more responsible for his need for treatment. The E/C’s independent medical examiner, Dr. Ross, opined Claimant suffered from chronic alcoholism with acute withdrawal and alcoholic hepatitis, which led to hyperthermia, Wernicke-Korsakoff’s Syndrome, and systematic collapse. Dr. Ross further opined that Claimant’s alcoholism, not his work activities, was the MCC of his collapse and resulting injuries.

Due to the conflict in the IME physicians’ testimonies, the JCC appointed Dr. Weiss to serve as expert medical advisor (EMA). After examining Claimant, Dr. Weiss diagnosed Claimant with encephalopathy caused by heatstroke.

Dr. Weiss opined that the MCC of Claimant’s collapse was heatstroke and that the heatstroke was a direct result of Claimant’s employment. Dr. Weiss opined there was no objective evidence Claimant’s condition was caused by the use of alcohol or the aggravation or acceleration of alcoholism.

At the request of the E/C, Raymond Harbison, Ph.D, reviewed Claimant’s medical records and issued a report concerning the cause of Claimant’s condition. Dr. Harbison is a toxicologist, but not a medical doctor. Dr. Harbison opined that Dr. Morariu’s opinion was not consistent with the medical evidence or toxicology results and that there was no evidence that Claimant was exposed to harmful workplace temperatures sufficient to cause heatstroke. Dr. Harbison further opined, over Claimant’s objection, that Claimant’s April 12 incident was caused by the acceleration or aggravation of his long-term alcoholism and not exertional heatstroke.

At a hearing before the JCC, the depositions of Doctors Morariu, Ross, Weiss, and Harbison were entered into evidence. Additionally, Doctors Ross and Harbison testified live before the JCC. At the hearing, the E/C elicited testimony from Doctors Ross and Harbison concerning the flaws in Dr. Weiss’s diagnoses and argued their testimony constituted clear and convincing evidence contradicting the opinions of Dr. Weiss, the EMA. Claimant objected to the opinions of Dr. Harbison on the basis that he was not qualified to render an opinion on medical causation and urged the JCC to accept the opinions of Dr. Weiss.

The JCC denied compensability of Claimant’s April 12, 2008, accident, finding the record contained clear and convincing evidence to dispute the presumptive correctness of Dr. Weiss’s expert opinion.

Significantly, the JCC found there was “clear and convincing evidence from the testimony of Dr. Ross and Dr. Harbison to refute the testimony of Dr. Weiss on causation.” Ultimately, the JCC determined the MCC of Claimant’s April 12 incident and injuries was long-term alcoholism, not heatstroke. She further found Claimant’s injury barred pursuant to section 440.02, Florida Statutes, due to the accidental acceleration or aggravation due to the habitual use of alcohol.

On appeal, Claimant argues the JCC erroneously relied on the testimony of Dr. Harbison in reaching the conclusion that Claimant’s collapse was caused by his preexisting alcoholism. The E/C argues Dr. Harbison’s opinions were rendered solely from a scientific, toxicological standpoint and were properly confined to his specialty and training. Alternatively, the E/C argues any error in the admission of Dr. Harbison’s testimony was harmless because competent, substantial evidence (CSE) otherwise supports the JCC’s finding as to the cause of Claimant’s collapse. We agree with Claimant and reverse.

Section 440.09(1), Florida Statutes (2007), provides in relevant part:

The injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings, and the accidental compensable injury must be the [MCC] of any resulting injuries. . . . For purposes of this section, “objective relevant medical findings” are those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by physical examination findings or diagnostic testing. Establishment of the causal relationship between a compensable accident and injuries for conditions that are not readily observable must be by medical evidence only, as demonstrated by physical examination findings or diagnostic testing. [MCC] must be demonstrated by medical evidence only.

(Emphasis added.) Additionally, section 440.13(5)(e), Florida Statutes (2007), provides that “[n]o medical opinion other than the opinion of a medical advisor appointed by the [JCC] or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the [JCC].” (Emphasis added.).

A plain reading of these statutes indicates that medical causation must be established by medical testimony only. See also Turner v. G. Pierce Wood Mem’l Hosp., 600 So. 2d 1153 (Fla. 1st DCA 1992) (holding determination of non-observable medical condition is essentially a medical question); Thomas v. Salvation Army, 562 So. 2d 746 (Fla. 1st DCA 1990) (holding medical evidence is prerequisite to finding causation within reasonable medical probability where claimant’s injury is not readily observable).

The primary issue in this case is the cause of Claimant’s April 12 collapse and resulting medical conditions. Contrary to the E/C’s argument, Dr. Harbison did, on multiple occasions and over Claimant’s objection, provide an opinion as to this precise medical issue. Significantly, Dr. Harbison attested to his belief that Claimant’s accident was caused by chronic alcoholism, not exertional heatstroke. Additionally, Dr. Harbison provided an opinion as to the initial findings and diagnoses from Glades General Hospital and indicated his opinions were within a reasonable degree of medical certainty.

It is undisputed, however, that Dr. Harbison is a toxicologist, not a medical doctor. Accordingly, although Dr. Harbison’s testimony was admissible with respect to scientific methods and principles, alcohol abuse, and the consequences of long-term alcoholism, his opinion as to the medical cause of Claimant’s April 12 incident and injuries specifically was not.

Because Dr. Harbison is not a medical doctor, he was not qualified to testify as to the medical cause of Claimant’s condition in this particular case. See §§ 440.09(1) & 440.13(5)(e), Fla. Stat. (2007). Therefore, the JCC erred to the extent she accepted and relied on Dr. Harbison’s opinions regarding the specific cause of Claimant’s incident and resulting injuries.

Notwithstanding the foregoing error, the E/C urges us to affirm the JCC’s order. Reasoning that Dr. Harbison’s opinions were entirely consistent with those of Dr. Ross and that CSE supports the JCC’s ruling notwithstanding the exclusion of Dr. Harbison’s testimony, the E/C argues the JCC’s reliance on the inadmissible testimony was harmless. We disagree.

The test for harmless error in a civil case is “whether, but for such error, a different result may have been reached.” White Constr. Co., v. Dupont, 455 So. 2d 1026 (Fla. 1984); see also Nat’l Union Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So. 2d 840 (Fla. 1st DCA 2000). This test is applicable to workers’ compensation appeals. See, e.g., Sanlando Util. Corp. v. Morris, 418 So. 2d 389 (Fla. 1st DCA 1982) (holding deputy commissioner’s error in considering inadmissible evidence was harmful where, but for the error, a different result may have been reached).

An error in the introduction of evidence may be considered harmless if the evidence is merely cumulative to other evidence that was properly introduced. See Dupont, 455 So. 2d at 1029 (holding that error in allowing evidence of subsequent repairs in negligence case was harmless because there was enough independent evidence of negligence to make inadmissible evidence “merely cumulative”); Foster’s Auto Crushing v. Wood, 427 So. 2d 1009 (Fla. 1st DCA 1983) (holding any error, in workers’ compensation proceeding, in admitting hearsay medical report was harmless where evidence was “strictly cumulative”).

When considered in conjunction with the underlying harmless error test, however, “cumulative evidence” means unnecessary evidence — evidence so repetitive that, notwithstanding its exclusion, it is not reasonably likely a different result would have occurred. See Blackmon, 754 So. 2d at 843 (holding admission of hearsay statement was harmless error where statement was cumulative and, given other evidence of tortfeasor’s liability, there was no reasonable possibility that the error contributed to jury’s verdict). The cases concerning cumulative evidence do not stand for the proposition that an error in the admission of evidence is harmless simply because there is additional admissible evidence in the record to support the ultimate result below. See, e.g., Crawford & Co. v. Baxla, 746 So. 2d 576, 577 (Fla. 1st DCA 1999) (holding JCC’s error in admitting and relying upon inadmissible medical testimony was harmless where JCC also relied upon testimony of authorized IME, which essentially mirrored improperly admitted testimony, but explaining affirmance under such facts “should be viewed as a rare exception” and noting, in the future, such erroneous admissions will likely result in reversal). Because in a vast majority of workers’ compensation cases the record on appeal contains CSE in support of both sides, a JCC’s reliance on inadmissible evidence will almost always be deemed harmless if the degree of harm is measured by the existence of CSE supporting the result reached by the JCC. Therefore, a JCC’s reliance on inadmissible expert testimony is not harmless solely because CSE otherwise supports the JCC’s findings.

The Florida Supreme Court has held, under a civil harmless error analysis, that an error in the admission of expert testimony is harmful where the case turns on the weight of expert testimony. See Linn v. Fossum, 946 So. 2d 1032, 1041 (Fla. 2007) (holding trial court’s error in admission of expert testimony was not harmless where competing expert opinions were the focal point of the trial). Accordingly, where expert testimony as to a particular issue is the focal point of the trial, the erroneous admission of expert evidence constitutes harmful error.

Here, as in Linn, the case turns on the weight of expert testimony; specifically, whether Claimant’s collapse was the result of heatstroke or chronic alcoholism. The JCC’s ultimate finding as to causation was based on both the inadmissible testimony of the toxicologist and the admissible medical testimony of Dr. Ross, the E/C’s IME physician. On the basis of these two expert opinions, the JCC found clear and convincing evidence to rebut the presumed correctness of the EMA’s opinion. See § 440.13(9)(c), Fla. Stat. (2007) (stating that opinion of EMA is presumed correct unless there is clear and convincing evidence to the contrary as determined by JCC). Here, the JCC may have reached a different result if she had relied only on the admissible evidence. From the order, it cannot be determined whether the JCC would have found Dr. Ross’s testimony alone constituted clear and convincing evidence sufficient to rebut the opinion of the EMA. Cf. U.S. Agri-Chem. Corp. v. Camacho, 975 So. 2d 1219 (Fla. 1st DCA 2008) (holding that JCC’s error in accepting expert testimony was harmless because JCC specifically stated he would have reached the same result without the inadmissible expert opinion); Oriente Express Inn v. Rodriguez, 406 So. 2d 55 (Fla. 1st DCA 1981) (holding order’s recitation of medical report not in evidence was harmless where neither record nor face of the order indicate that report had any significant bearing on deputy’s conclusions).

Because the competing expert opinions as to the cause of Claimant’s collapse were the focal point of the final hearing and because the JCC expressly relied on the inadmissible opinions in reaching her conclusion, the JCC’s erroneous admission of expert testimony was harmful error. Linn, 946 So. 2d at 1041; see also Johns E. Co., v. Matta, 717 So. 2d 91 (Fla. 1st DCA 1998) (holding JCC’s erroneous admission of physician’s testimony was not harmless where physician provided important testimony establishing causal relationship between claimant’s accident and resulting injury). Therefore, the case is REVERSED and REMANDED to the JCC for reconsideration without reliance upon Dr. Harbison’s opinions as to medical causation. (WOLF and ROWE, JJ., CONCUR.)

It is unfortunate that workers compensation carriers make decisions that get its own insured sued in tort for simple negligence but that is the way it works. Stated differently, when a claim comes into the insurance company’s claims office, the adjuster hopes to make the process difficult for the employee so that the employee moves on without the insurance company having to pay anything out to the injured worker. There is nothing like making it even harder on the employee than starving him or her out of existence.

The requirements for the payment of prompt benefits to in injured worker in Florida should only require the following steps:

440.185(2) of the Florida Statutes reads in part:

(2) Within 7 days after actual knowledge of injury or death, the employer shall report such injury or death to its carrier, in a format prescribed by the department, and shall provide a copy of such report to the employee or the employee’s estate. The report of injury shall contain the following information:

(a) The name, address, and business of the employer;

(b) The name, social security number, street, mailing address, telephone number, and occupation of the employee;

(c) The cause and nature of the injury or death;

(d) The year, month, day, and hour when, and the particular locality where, the injury or death occurred; and

(e) Such other information as the department may require.

(4) Within 3 days after the employer or the employee informs the carrier of an injury the carrier shall mail to the injured worker an informational brochure approved by the department which sets forth in clear and understandable language an explanation of the rights, benefits, procedures for obtaining benefits and assistance, criminal penalties, and obligations of injured workers and their employers under the Florida Workers’ Compensation Law.

Section 440.185(2), Florida Statutes (Supp. 1986), requires the employer, within seven days of knowledge of injury, to report such injury to the carrier and the employee, advising, among other things, the cause and nature of the injury and its date of occurrence, and requires the carrier to notify the Division of Workers’ Compensation in Tallahassee within 10 days

Under the Workers’ Compensation Law, an employer is under a continuing obligation, once it has knowledge of an employee’s injury, to place needed benefits in the hands of the injured worker. An employer must offer or furnish benefits when the employer knows, or reasonably should know from facts properly and diligently investigated, that such benefits are due.

It would be inequitable for the employer, through its insurance carrier, to take the position that there were no work-related injuries and hence no workers’ compensation coverage, and then later, when the employee brings a tort action against the employer, to assert as a defense at law that there was workers’ compensation coverage entitling the employer to immunity from suit.

As the employer may not separate itself from its compensation carrier’s determination that the employee’s injuries did not occur during the course and scope of employment, the employer is estopped from taking the totally inconsistent position that the injuries did occur during the course and scope of employment and claim worker’s compensation immunity when sued in tort. See Tractor Supply Co., v. Kent, 966 So.2d 978 (Fla. 5th DCA 2007), review denied, 980 So. 2d 490 (Fla. 2008); Byerley.

Now, when your response from the carrier is a denial of all benefits because your injury is a “pre-existing condition” you may have a right to sue the employer if there is any negligence on the part of the employer that contributing the injury. Why is that important? In a negliegnce case you can secure “non-economic benefits” which the worker’s compensation act does not provide to an injured worker.

In one Florida case, Wilczewski and Leon worked at a beauty salon owned by Ocean Reef. Wilczewski was employed as a hairstylist and Leon as a nail technician. Wilczewski and Leon allege to have been exposed to chemical fumes inherent in the operation of the beauty salon which caused them to experience asthma-like symptoms, headaches and respiratory problems over a period of time for which they had to receive medical treatment and hospitalization.

Wilczewski and Leon claim they notified their supervisor of their health issues, but, while they were employed, neither they nor Ocean Reef notified the workers’ compensation insurance carrier. It was not until after Wilczewski and Leon brought a civil action for damages against Ocean Reef, that Ocean Reef notified the workers’ compensation insurance carrier of the claims. The carrier denied the claims contending that the illnesses did not occur in the course and scope of employment. The claims also were denied because the statute of limitations had run.

The underlying actions, separately filed by Cherrye Wilczewski and Laura Leon, are substantively identical, single-count, negligence complaints alleging work-related respiratory injuries caused by poor air quality in the Salon and Spa building. Wilczewski was employed as a hair stylist in the Salon and Spa from 1997 to September 2006. Leon was employed as a nail technician in the Salon and Spa from 2001 to February 2006.

During all the years of their respective employment, Ocean Reef had workers’ compensation insurance covering both Wilczewski and Leon. Posters proclaiming the fact were posted on the Ocean Reef premises.

Both Wilczewski and Leon signed multiple forms during the course of their employment acknowledging receipt of employee pamphlets and information describing the procedures for reporting and seeking medical treatment for on-the-job injuries or illnesses. In fact, Wilczewski filed a workers’ compensation claim and received benefits for an arm injury preceding the controversy that brings us together in this case.

Additionally, Ocean Reef admits it was aware of Wilczewski’s and Leon’s illnesses, but hesitated to report to the carrier that the injuries were work-related. Ocean Reef delayed notifying its workers’ compensation insurance carrier until after suit was filed only to result in a denial of coverage by the carrier on the grounds that the injuries sustained by Wilczewski and Leon were not within the scope of their employment and were time barred. The carrier’s denial of coverage on the grounds that the injuries sustained were not work-related is imputed to the employer.

Where the employer’s assertion of workers’ compensation immunity is “clearly irreconcilable” with the reason for its denial, an employer is estopped from asserting the defense of tort immunity. Mena v. J.I.L. Constr. Group Corp., No. 4D10-2587 (Fla. 4th DCA Feb. 15, 2012) (citing Tractor Supply v. Kent, 966 So. 2d 978 (Fla. 5th DCA 2007)). Where, as here, the carrier’s denial is absolutely clear on its face that the reason for denial is “[n]o accident in the course and scope of employment,” it is “clearly irreconcilable” with the defense of tort immunity asserted by Ocean Reef. Ocean Reef cannot now contend that the injuries were, in fact, related to work and therefore covered by workers’ compensation when it has clearly denied coverage on inconsistent grounds earlier. See Mena, at No. 4D10-2587; Byerley v. Citrus Publ’g, Inc., 725 So. 2d 1230, 1232 (Fla. 5th DCA 1999); see also Coastal Masonry v. Gutierrez, 30 So. 3d 545 (Fla. 3d DCA 2010); Schroeder v. Peoplease Corp., 18 So. 3d 1165 (Fla. 1st DCA 2009).

It would be inequitable for the employer, through its insurance carrier, to take the position that there were no work-related injuries and hence no workers’ compensation coverage, and then later, when the employee brings a tort action against the employer, to assert as a defense at law that there was workers’ compensation coverage entitling the employer to immunity from suit. As the employer may not separate itself from its compensation carrier’s determination that the employee’s injuries did not occur during the course and scope of employment, the employer is estopped from taking the totally inconsistent position that the injuries did occur during the course and scope of employment and claim worker’s compensation immunity when sued in tort. See Tractor Supply Co., v. Kent, 966 So.2d 978 (Fla. 5th DCA 2007), review denied, 980 So. 2d 490 (Fla. 2008); Byerley.

We affirm the trial court’s holding that workers’ compensation tort immunity was not available to Ocean Reef as a defense to the action at law. The denial of summary judgment on the issue of tort immunity is affirmed.

Affirmed

Florida’s workers compensation act was created to offer prompt and efficient medical care and wage reimbursement in exchange for the employees giving up very valuable rights to claim pain and suffering as a result of the employer’s simple or gross negligence.

One exception is whether the conduct of the employer created a situation where the acts of the employer are substantially certain to cause serious injury or death to a worker. My research and the cases I have undertaken making that challenge that the employer lost its immunity, reflect that there is not one appellate court case in Florida which has sustained any any jury’s determination that the conduct and actions of the employer created a situation where the “injury was virtually certain to occur.”

In one Florida case, the trial judge refused to grant the defendant employer immunity which the court of appeals reversed.

In this case, the employee complained to his supervisor that the lawn mower that he was operating would go to slow and stall. Rather than send the mower back to the factory to be repaired the supervisor took the safety switch off the mower.

Snyder maintained the grounds of Mekamy Oaks and regularly used a riding mower in doing so. After the mower began losing power while Snyder was operating it, Medlin, Snyder’s supervisor, was told by a repairman that the mower would have to be sent to the factory to be repaired.

Medlin told Snyder that the problem was caused by a malfunctioning safety switch that was designed to kill the engine when the rider dismounted. Medlin then informed Snyder that he was going to resolve the problem by removing the safety switch and by “do[ing] away with the whole thing.’’ Snyder remarked that someone could get hurt. He later saw Medlin working on the mower, and Snyder operated the mower without incident for a few days. Unfortunately, he later operated the mower on a sloped surface when the front end of the mower suddenly went down, and the back reared up; Snyder was thrown and the mower blade cut his foot.

The court erred in denying summary judgment in favor of Mekamy Oaks because there is no evidence it committed an intentional tort — which is the conduct requisite to removing an employer’s worker’s compensation immunity. Fisher v. Shenandoah Gen. Constr. Co., 498 So. 2d 882 (Fla. 1986); Lawton v. Alpine Engineered Products, 498 So. 2d 879 (Fla. 1986). Although Mekamy Oaks’ conduct, through the acts of Medlin or Hatfill, may have been negligent or even grossly negligent, there is no evidence to show that it engaged in conduct either designed to or substantially certain to result in injury or death, or that Mekamy Oaks committed an intentional tort. Fisher; Lawton; Emergency One, Inc. v. Keffer, 652 So. 2d 1233 (Fla. 1st DCA 1995); Kline v. Rubio, 652 So. 2d 964 (Fla. 3d DCA), rev. denied, No. 85,655 (Fla. July 11, 1995) (table).

Similarly, the court erred in denying summary judgment in favor of Medlin and Hatfill because there is no evidence that the conduct of either Medlin or Hatfill[2] constituted the crime of culpable negligence or that their conduct would warrant punitive damages. sec. 440.11(1), Fla. Stat. (1989); Eller v. Shova, 630 So. 2d 537 (Fla. 1993); compare Como Oil Co. v. O’Loughlin, 466 So. 2d 1061 (Fla. 1985); White Constr. Co. v. Dupont, 455 So. 2d 1026 (Fla. 1985).

Accordingly, we reverse the order denying summary judgment and remand for entry of judgment in favor of Mekamy Oaks, Medlin, and Hatfill.

The entire workers compensation in Florida was held to be unconstitutional by one Miami circuit court judge. The court determine the law to be unfair to the injured worker. That decision will be certainly be taken up to the appellate court by the lawyers for the employer and may reach the Florida Supreme Court in several years if the appellate court affirms the trial judge.

One of the most onerous burden which is on the back of the injured worker and his lawyer is to establish that the incident which caused the death or serious injury to the worker was “virtually certain to occur.” The level of proof must be presented to the lower court in order for the worker to sue the employer for money above and beyond those benefits provided for loss of wages and the payment of the injured worker’s medical bills.

In one Florida case, R.L. Haines contracted to build a 200,000 square foot expansion of an existing warehouse. It subcontracted all of the steel work on the project to Metal Bilt, Inc. (“Metal Bilt”).

At the time the worker was struck, the decedent was working as a foreman for Metal Bilt. Part of Metal Bilt’s scope of work on the project was to erect steel columns to support the building.

Each column stood thirty-three feet high and weighed over 2000 pounds. The columns were attached to bolts anchored to a concrete base by an epoxy adhesive.

Before Metal Bilt employees could install the columns, the epoxy adhesive had to cure for a certain amount of time, depending on the temperature of the base concrete. According to the epoxy installation instructions, loads were not to be applied until the cure time had passed.

On January 13, 2010, Metal Bilt secured several anchor bolts to concrete slabs with epoxy adhesive. The epoxy installation instructions called for seventy-two hours of drying time.

R.L. Haines nonetheless instructed Metal Bilt employees to begin setting the steel columns on January 15, 2010, after only forty-four hours of drying time. Metal Bilt erected four columns that morning. While the decedent was tightening a wire attached to one of the columns, the column fell on him, causing his death.

The personal representative of the deceased, sued Haines, arguing that the facts of this case fell within the intentional tort exception to workers’ compensation immunity, as set forth in section 440.11(1)(b)2., Florida Statutes (2010). At trial, personal representative asserted that R.L. Haines’s decision to allow Metal Bilt employees to set the steel columns before the epoxy used to secure the anchor bolts had fully cured caused the decedent’s death. They further alleged that R.L. Haines knew that the failure of the epoxy to fully cure could lead to the collapse of a column and the collapse of a column was virtually certain to injure or kill the employee on whom it fell. The jury awarded the family of the dead worker a total of $2.4 million.

The appellate court reversed and directed that the trial judge grant the Defendant immunity under the workers compensation act.

compensation immunity. It reads, in relevant part, as follows:

440. 11 Exclusiveness of liability. —

(1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability . . . except as follows:. . . .

(b) When an employer commits an intentional tort that causes the injury or death of the employee. For purposes of this paragraph, an employer’s actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that:

1. The employer deliberately intended to injure the employee; or

2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

§ 440.11(1), Fla. Stat. (2010).

The current “virtually certain” statutory standard has been applied in varying factual scenarios. In List Industries, Inc. v. Dalien, 107 So. 3d 470 (Fla. 4th DCA 2013), an employee operating a press brake (a large machine used to cut, bend and shape steel) sustained injuries resulting in the amputation of a significant portion of his dominant hand. After the court found that the section 440.11(1)(b)2. exception applied, the jury awarded the plaintiff $2.7 million.

Upon the employer’s appeal, the Fourth District found that the employee had failed to establish any of the elements necessary for application of the exception. It concluded that the trial court erred by failing to grant a directed verdict where “[t]he employee did not prove that it was ‘virtually certain’ that operating the Press Brake would result in injury to the employee, as there had been no prior accidents on this machine.”

In comparing the Turner substantially certain standard to the post-Turner virtually certain standard, the Fourth District stated that “[t]he change from ‘substantial certainty’ to ‘virtually certain’ is an extremely different and a manifestly more difficult standard to meet.

It would mean that a plaintiff must show that a given danger will result in an accident every — or almost every — time.” Although the Fourth District did not quantify the likelihood represented by the “virtually certain” standard,3 it described the statutory requirements as being so “stringent” as to make the issue often amenable to disposition by summary judgment.

Other cases have also characterized the virtually certain standard as extremely difficult to overcome. In Gorham v. Zachry Industrial, Inc., 105 So. 3d 629, 634 (Fla. 4th DCA 2013), the Fourth District observed that the Legislature, “adopted an extremely strict exception which, we suspect, few employees can meet.

To date, we have not found, nor has a case been cited to us, where an employer has lost its immunity for its conduct.” In Gorham, an employee was significantly injured when the wind caused a wall he was lifting with a crane to move while the employee’s arm was wrapped around a tag line attached to the wall.

The employee sued the employer, asserting the section 440.11(1)(b)2. exception to workers’ compensation immunity. There was extensive deposition testimony about the wind speeds and whether the employer knew that working in those conditions was dangerous. On appeal, the Fourth District upheld summary judgment for the employer, concluding that “[t]here is no evidence that such a lift would with virtual certainty cause injury. Indeed, that afternoon the lift was performed without any injuries, even in increasing wind speeds.”

Similarly, in Boston ex rel. Estate of Jackson v. Publix Super Markets, Inc., 112 So. 3d 654 (Fla. 4th DCA 2013), the Fourth District affirmed summary judgment in favor of an employer in an action brought by the estate of a deceased employee. In that case a tractor trailer backed into the employee, crushing him between the trailer and the warehouse dock pad. The employee was not visible to the tractor’s operator and the trailer’s backup alarm was inoperable. Id. at 655. Citing List Industries, the Fourth District found the virtual certainty standard had not been met, thus the section 440.11(1)(b)2. exception did not apply. Id. at 658. The court explained that “there is no evidence that prior similar accidents occurred . . . [and a] lack of a backup alarm does not with virtual certainty result in injury. While it may make injury more likely, the statute demands far more.” Id.

In Vallejos v. Lan Cargo, S.A., 116 So. 3d 545 (Fla. 3d DCA 2013), the Third District reiterated the List Industries formulation as to “virtual certainty.” There, the court upheld summary judgment entered in favor of the employer of an employee who was injured while using a rope to fasten a hopper (a small dumpster) to a forklift. In evaluating the likelihood of injury resulting from this practice, the Third District noted the absence of prior similar accidents for a period of at least five years despite the daily use of “hoppers modified with makeshift ropes.” Id. at 555.

Based on the previously described standard, Appellees were required to establish, among other elements, that as a result of the shortened epoxy cure time, the column was virtually certain to fall and injure the decedent. This Court must, therefore, review the facts and circumstances of this case to determine whether the evidence was sufficient to satisfy this “extraordinarily high” standard. A review of the record shows that the likelihood that the shortened cure time would result in the column falling and killing the decedent was no greater than the likelihood that the employees in Gorham, List Industries, Boston and Vallejos would be injured as a result of their respective employer’s conduct.

Accepting the specific facts of the instant case in the light most favorable to Appellees, the evidence did not establish that it was virtually certain that the decedent would be injured or killed as a result of the resumption of work before the epoxy had fully cured. The record is devoid of evidence of prior similar accidents. Moreover, the remaining three columns in the set — all of which were subject to the same shortened curing period — remained anchored to the base and standing upright.5 The fact that R.L. Haines would have prevented the column from falling by stopping work is insufficient as “the test is not whether the injury was preventable.” Vallejos, 116 So. 3d at 554.

In addition, the expert testimony adduced by Appellees did not establish that the shortened cure time would be virtually certain to result in death or injury to the decedent. Even if it could be inferred that the shortened cure time was virtually certain to cause the column to fall, there was no expert testimony from which it could be reasonably inferred that the column would fall at a time, in a direction, and in a manner that was virtually certain to injure or kill an employee.

Likewise, the cumulative inevitability of the accident occurring is not sufficient to sustain the verdict. Appellees argue that if the employer’s course of conduct were replicated, it is virtually certain that on “some occasion” the column would fall and cause injury to an employee. Acceptance of the Appellees’ reasoning would convert a merely potentially dangerous condition into a virtual certainty and do violence to the legislative intent underpinning the workers’ compensation system in this state. We reject this contention. As the Fourth District explained,

[A]ny modestly dangerous activity at a workplace that is repeated often enough or long enough will eventually result in an accident. Although the concept of “gross negligence” examines the combination of circumstances to evaluate the relevant risk, it does not add together or cumulate the individual probabilities of an accident on each occasion to reach a conclusion that an accident is inevitable or that a risk is inordinately high.

Boston, 112 So. 3d at 658 (quoting Fleetwood Homes of Fla., Inc. v. Reeves, 833 So. 2d 857, 868 (Fla. 2d DCA 2002)).

In this case, virtual certainty of the decedent’s death may not be inferred either from R.L. Haines’s conduct or from the fatal injuries the decedent sustained. The standard set forth in section 440.11(1)(b)2. requires events to be viewed retrospectively in order to determine whether the injury actually sustained was virtually certain to have occurred as a result of the employer’s conduct.

It would erode the statutory standard for overcoming workers’ compensation immunity to indulge an inference of virtual certainty from the fact that the employee was injured or killed. Similarly, R.L. Haines’s conduct and the potential danger that it creates, standing alone, are insufficient to establish the requisite likelihood that an employee would be injured or killed.7 However egregious R.L. Haines’s conduct was in this case, absent clear and convincing evidence that the decedent’s death was virtually certain to occur as a result of that conduct, the verdicts cannot stand.

An injured worker challenged the existing framework of the Workers Compensation Act by filing a complaint for damages against the employer based upon the alleged negligence of the employer.

Plaintiff’s lawyer asserted the affirmative defense of workers’ compensation immunity under §440.11, Fla. Stat. 2003. The complaint was amended to add Count IV for Declaratory Relief, seeking that this court declare §440.11 (the exclusive remedy provision of the workers’ compensation act) invalid, because it violates the Due Process Clause of the 14th Amendment of the U.S. Constitution, the Access to Courts provision of Article I, §21 of the Florida Constitution, a violation of the Florida Constitution’s right to trial by jury; and a violation of the Florida Constitution.

Florida stands out as being the only state that has constricted its benefits to “permanent impairments”. The limited amount of benefits that are paid currently for permanent impairment are conservatively less than would have been available under the law in the seventies, and is markedly lower than what’s paid in most other states. And certainly would have come nowhere near the standards that would be consistent with the National Commission’s recommendations. See also Martinez v. Scanlan, 582 So.2d 1167 (Fla. 1991).

The “Exclusive Remedy” provision in Ch. 440 Fla. Stat. (2001) provides (in part):

“440.11(1) 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 admiralty on account of such incident.

It was in the Act at the time of the adoption of the Constitution of 1968 in a special session of the legislature, June 24-July 3, 1968, and when ratified by the electorate on November 5, 1968. The Declaration of Rights, including the right to be rewarded for Industry (Art. I, § 2), became part of the statutory and procedural law of Florida that fixed the rights of the citizens, which rights could only be changed (not eliminated) and if changed must be replaced by a “reasonable alternative.”

The First District Court of Appeal commented on the “minimum” requirements for a constitutionally adequate workers’ compensation law. The Court said the workers’ compensation law:

“…remains a reasonable alternative to tort litigation. It provides injured workers with full medical care and benefits for disability (loss of wage earning capacity) and permanent impairment regardless of fault, without the delay and uncertainty of tort litigation”, Bradley v. Hurricane Restaurant, 670 So. 2d 162,164 (Fla. 1DCA 1996) [21 Fla. L. Weekly D757a] (emphasis added).

This is the same language that was used by the Supreme Court in Martinez v. Scanlan, 582 So.2d 1167, 1172 (Fla. 1991) 5 years earlier to set the minimum benefit requirement for a constitutional workers’ compensation law. The ‘solution’ from the Martinez court was not to find the Act unconstitutional. The holding was that persons with injuries or accidents that are no longer ‘compensable’ due to the 1990 amendments to the act regained the power to ‘opt out’ after the injury took place and assert their right to sue in tort or claim compensation benefits, Martinez, id. Fn.4. (Appendix M). In other words, the Act was not their exclusive remedy.hite, 281 So. 2d 1 (Fla. 1973) (Appendix J).

It is no longer possible to reach the same result reached in Martinez, id., i.e.: granting the right to Tort remedy in limited situations or on a case by case, “applied” basis. This approach will not work because the infirmities in the current act since 2003 strike at the heart of the exclusive remedy. Every injury is capable of producing a partial loss of wage earning capacity, so every injured worker must have the option of accepting workers’ compensation benefits or choosing to sue in tort.

CONCLUSION

The U.S. Supreme Court requires workers’ compensation benefits to be ‘significant’ if the exclusive remedy is to pass muster under the 14th Amendment to the U.S. Constitution (Due Process).

Professor Burton describes the category of benefits known as permanent partial disability as the most significant benefit under a workers’ compensation program.

The Florida Supreme Court opined that to be constitutional a workers’ compensation act had to provide some level of permanent partial disability benefit.

The Florida Supreme Court has opined that the legislature is without the power to repeal a category of benefits available at the time of the adoption of the 1968 Constitution without providing for a reasonable replacement.

The Legislature has repealed numerous classes of benefits since 1968, including permanent partial disability without replacing any of them with equivalent benefits.

Among a multitude of other infirmities, the Florida Act, after October 1, 2003, no longer provides any benefits for permanent partial disability.

As a matter of law, Chapter 440, effective October 1, 2003 is facially unconstitutional as long as it contains §440.11 as an exclusive replacement remedy.

I find that the Florida Workers’ Compensation Act, as amended effective October 1, 2003, does not provide a reasonable alternative remedy to the tort remedy it supplanted. It therefore cannot be the exclusive remedy. §440.11 is constitutionally infirm and invalid.

IT IS ORDERED AND ADJUDGED, that Declaratory Relief is GRANTED. Judgment is entered for the Petitioners/Intervenors. §440.11 Fla. Stat. 2003 is unlawful, invalid and unconstitutional.

This case certainly will be appealed by the worker’s compensation carrier, and if affirmed, this issue will probably reach the Florida Supreme Court.

Let’s say the worker is a cashier or a server in the company’s cafeteria where many employees eat rather than leave the property. The cashier and other workers take lunch in the employer’s cafeteria. Then the worker goes back to her work station and falls after slipping on water on the floor. Under Florida law workers’s compensation coverage is available to the injured workereither under the personal comfort rule or the premises rule. Stated differently, worker’s compensation must cover medical and indemnity of the injured worker even if the injury happened on the property when the claimant was going back to work.

In one Florida case, the claimant was a casher at a buffet style restaurant when she slipped and fell during lunch break, on some water and/or food, when returning her tray to the bus cart. The claimant sustained injuries as a result of the fall. The employer had notice of the accident that same day, and according to the employer, the injury was reported to the Workers’ Compensation Servicing Agent, GAB Robins North America, Inc. (hereinafter “GAB’’), via a Notice of Injury form. The Notice of Injury was mailed to the GAB agent the day of the claimant’s injury.

Rather than just doing what the law required, GAB denied the claimant’s entire claim, and sent a Notice of Denial to the employer and the claimant.

After the complainant’s compensation claim was denied the claimant’s attorney filed a premises liability lawsuit seeking all economic and non-economic harms and losses from the employer on a negligence theory.

After the lawsuit had been served the employer’s worker’s insurance company starting paying the benefits which were originally due under the worker’s compensation law which are less than the benefits the claimant was seeking in her lawsuit. There the insurance company listened its lawyer saying you are going to pay more than you are required to pay by not “accepting the claim”.

The worker’s compensation carrier asserted the defense of immunity to the negligence lawsuit and asked the court to dismiss the lawsuit since now everything was great.

GAB, denied the claimant’s workers’ compensation benefits for the following reasons: “(1) Employee was getting up from eating lunch when she fell; (2) employee was off clock on lunch break; (3) accident did not arise out of or in the course of her employment.

“Under the `going and coming’ rule, the hazards encountered by an employee while he is going to, or returning from, his regular place of work are not ordinarily incidental to his employment, and injuries arising from such hazards do not arise out of and in the course of the employment.’’ Doctor’s Business Service, Inc. v. Clark, 498 So.2d 659, 662 (Fla. 1st DCA 1986), rev. den. 506 So.2d 1041 (Fla. 1987).5 See also, Security Bureau, Inc. v. Alvarez, 654 So.2d 1024 (Fla. 1st DCA 1995).6 The “premises rule’’ is an exception to the “going and coming’’ rule. Alvarez at 1025. “[A]s to employees having fixed hours and a place of work, injuries occurring on the premises while they are going to and from work before or after working hours or at lunchtime are compensable, but if the injury occurs off the employer’s premises, it is not compensable.’’ Doctors Business Service, Inc. at 662; Alvarez at 1025.

The lawyer for the claimant’ asserted that the worker’s compensation carrier lost its statutory privilege of protection to employers from forms of liability other than under the workers’ compensation act under the theory of estoppel. Quality Shell Homes & Supply v. Roley, 186 So.2d 837 (Fla. 1st DCA 1966).

Estoppel rests on the principals of equity, justice and morality.The essential elements of estoppel…. are:

`(1) a representation by the party estopped to the party claiming estoppel as to some material fact, which representation is contrary to some condition of affairs later asserted by the estopped party;

(2) reliance upon this representation by the party claiming estoppel; and

(3) a change in the position of the party claiming estoppel to his detriment, caused by the representation and his reliance thereon.

The Court determined after evaluating all the facts and circumstances, that it is clear that the claimant detrimentally relied on the employer’s denial of benefits, not only having had to incur medical expenses, but also having to take the risk of engaging an attorney, and filing suit, with no guarantee of prevailing in the case, or securing a judgment. As such, MILLER changed her position, relying on the employer’s agent’s written denial of benefits. Therefore, the employer is estopped from raising the exclusivity provision of the workers’ compensation statute, and the claimant is entitled to partial summary judgment on the employer’s affirmative defense number of immunity.

Within the Department of Labor there is department simply referred to as the Occupational Safety and Health Administration. This Agency administers and enforces the provisions of the Occupational Safety and Health Act of 1979. The purpose of the act was to assure safe and healthy work place conditions for all working men and women. The Congress of the United States thought safety in the work place was such an important matter in this country that Congress created a department to enforce these standards.

The Federal law applies to every employer.The duties of the employer are as follows:

Each employer

1. shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees;

2. shall comply with the occupational safety and health standards promulgated under this Act.

B. each employer shall comply with the occupational safety and health standards and all rules and regulations and orders issued pursuant to this Act which are applicable to his own actions and conduct.

OSHA contains both monetary fines and penalties for violations by employers through an administrative process including hearings before an administrative judge.

Congress gave the administration enforcement measures as well as standards and regulate conduct in a relatively new arena such as employment safety and health standards which all employers were required to follow.

In many states the existing of rules and regulations regarding “a safe work place” can be referred to but the violation of those rules and regulations does not create an independent “federal cause of action.”

In one Florida case the injured worker attempted to hold the employer responsible for his damages outside of the worker’s compensation act, by alleging that the employer “intentionally ignored OHSA rules and regulations which made the likely hood of his serous injury or death, virtually certain to happen. The Florida Appellate Court said that the only recourse the injured worker had was the Worker’s Compensation Act.

The worker’s compensation carrier, if the injured worker recovers any money from a non-immune party, gets a portion of the money its has spent on the injured worker back from the recovery the injured worker obtains from a third party.

§ 440.39(2) Subsection (3)(a) provides:

In all claims or actions at law against a third-party tortfeasor, the employee, or his or her dependents or those entitled by law to sue in the event he or she is deceased, shall sue for the employee individually and for the use and benefit of the employer, if a self-insurer, or employer’s insurance carrier, in the event compensation benefits are claimed or paid;

Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his or her dependents, which notice shall constitute a lien upon any judgment or settlement recovered to the extent that the court may determine to be their pro rata share for compensation and medical benefits paid or to be paid under the provisions of this law, less their pro rata share of all court costs expended by the plaintiff in the prosecution of the suit including reasonable attorney’s fees for the plaintiff’s attorney.

§ 440.39(3)(a), Fla. Stat. (2002). This provision establishes a device by which the employer can recover compensation and medical benefits through subrogation or lien. Florida courts have not said whether the workers’ compensation statute is an exclusive remedy for an employer,

Whether your case involves a personal injury or a worker’s compensation work related injury, your lawyer will be evaluating what rules and regulations of OHSA may have been violated and whether the violation was a contributing cause to the consumer’s injury.