Elizabeth Picon v. Gallagher Bassett Services, Inc.

Case: 13-12829 Date Filed: 11/19/2013 Page: 1 of 27
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12829
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cv-23734-JEM
ELIZABETH PICON,
Plaintiff-Appellant,
versus
GALLAGHER BASSETT SERVICES, INC.,
a foreign corporation for profit,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 19, 2013)
Before HULL, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Case: 13-12829 Date Filed: 11/19/2013 Page: 2 of 27
In this diversity case, Plaintiff-appellant Elizabeth Picon, brings a civil
negligence action against her former employer, defendant-appellee Gallagher
Bassett Services, Inc. This appeal involves whether Florida’s workers’
compensation law bars Picon’s tort action against her employer. After careful
review, we conclude that the district court erred in granting summary judgment to
the employer and reverse and remand for further proceedings consistent with this
opinion.
I. FACTUAL BACKGROUND
As explained later, Florida case law provides that, in certain circumstances,
an employer, when sued by an injured employee, may be estopped from asserting
the affirmative defense of workers’ compensation exclusivity. Because the central
issue here is estoppel, we review what happened before the employee brought this
tort lawsuit against her former employer.
A. Picon’s September 2011 Right Shoulder Injury
Plaintiff Elizabeth Picon (“Picon”) worked for defendant Gallagher Bassett
Services, Inc. (“Gallagher”) from December 31, 1991 until September 25, 2012. In
September 2011, Picon first noticed pain in her right shoulder. The condition
became worse, resulting in a loss of motion. By February 2, 2012, Picon
considered the shoulder pain debilitating. Picon went to a doctor who diagnosed
Picon’s problem as tendonitis and informed Picon that the condition resulted from
2
Case: 13-12829 Date Filed: 11/19/2013 Page: 3 of 27
“working on the computer at her desk.” Another doctor, who evaluated Picon
several months later, believed that Picon’s shoulder pain resulted from “repetitive
use of a mouse and the computer.”
B. Picon’s February 2012 Workers’ Compensation Claim
Gallagher had a workers’ compensation policy that, pursuant to Florida
workers’ compensation law, covered bodily injury to an employee as a result of
injuries or disease arising out of work performed in the course and scope of
employment. On February 3, 2012, Picon and Gallagher reported her shoulder
pain to Gallagher’s workers’ compensation insurance carrier (the “insurer”).
Gallagher’s insurer began paying for Picon’s medical treatment.
C. Insurer Paid Medical Benefits from February to August 2012
Gallagher referred Picon to Concentra, a physical therapy clinic. Picon
attended approximately 20 physical therapy sessions. This treatment did not
alleviate Picon’s pain. On March 7, 2012, Picon underwent an MRI and saw an
orthopedist, Dr. Eliot Lang who diagnosed Picon as suffering from right shoulder
adhesive capsulitis. Dr. Lang gave Picon a cortisone injection in the right shoulder
and referred Picon to a surgeon, Dr. David Font-Rodriguez.
Picon saw Dr. Font-Rodriguez on June 12, 2012 and again three weeks later.
Dr. Font-Rodriguez agreed with Dr. Lang’s diagnosis of right shoulder adhesive
capsulitis, which he called “frozen shoulder.” Dr. Font-Rodriguez discussed with
3
Case: 13-12829 Date Filed: 11/19/2013 Page: 4 of 27
Picon “[o]perative and nonoperative treatment options . . . along with risks and
benefits of each choice, and realistic expectations of each.” Dr. Font-Rodriguez’s
notes stated: (1) “[Picon] will proceed with surgery as soon as she is medically
cleared, and approved by the w/c carrier;” and (2) “the carrier is asking her
Rheumatologist if her condition is preexisting or related to a rheumatologic
problem, clearly which it is not.”
Dr. Font-Rodriguez completed a “Florida Workers’ Compensation Uniform
Medical Treatment/Status Reporting Form,” but did not answer the specific
questions about whether Picon’s shoulder injury was work-related and whether
there was more than one contributing cause of the injury. 1 Dr. Font-Rodriguez did
write “needs surgery ASAP! . . . medication . . . no use of right arm (light duty) . . .
no use of right arm . . . no repetitive use . . . no longer hours at work . . . no
driving.”
On July 25, 2012, Dr. Font-Rodriguez did send to Gallagher’s senior claims
representative, Jennifer Roth, a document stating: “see 7/5/12 Adhesive capsulitis
[a]s a condition is not caused by Diabetes, nor Systemic Lupus Erythematosus.
Most often it is secondary to trauma to affected area (injury, surgery, etc.)
sometimes its idiopathic in origin (of unknown etiology).”
1
For example, the unanswered question ten was:
10. Injury/Illness for which treatment is sought is:
a) NOT WORK RELATED b) WORK RELATED c) UNDETERMINED
as of this date
4
Case: 13-12829 Date Filed: 11/19/2013 Page: 5 of 27
D. August 2012 Independent Medical Examination of Picon’s Shoulder
Gallagher requested that Picon undergo an “independent” medical
examination. Dr. Randall D. Blinn, a certified orthopedic surgeon, physically
examined her, reviewed her 2006-2012 medical records, and prepared a report,
dated August 23, 2012. Dr. Blinn’s report stated that: (1) Picon’s ability to move
her right shoulder was “still severely limited with internal and external rotation
which are both very painful;” and (2) “I do believe that this individual’s problem
with the right shoulder is most probably because of patient disease.”
Dr. Blinn wrote that among the possible explanations for Picon’s pain were:
“the fact that she is a diabetic female in her sixth decade of life and the fact that
she does have a collagen vascular disease and a history of chest pain.” In Dr.
Blinn’s opinion, “[i]t is not reasonable to state that using a mouse or a computer at
a workstation in a repetitive fashion is the reason for this persons [sic] right
shoulder problem.” Dr. Blinn labeled Picon’s case “as an idiopathic case of frozen
right shoulder.”
Dr. Blinn did “not believe that any further treatment is necessary regarding
the right shoulder under the workers’ compensation date of accident of 2/2/2012.”
Dr. Blinn advised that “[n]o restrictions are necessary regarding the same” and that
“[t]here is no impairment rating regarding the right shoulder and the February 2,
2012 date of accident.”
5
Case: 13-12829 Date Filed: 11/19/2013 Page: 6 of 27
II. PROCEDURAL HISTORY
A. Picon’s August 2012 Workers’ Compensation Petition
On August 13, 2012, Picon, through counsel, filed a “petition for workers’
compensation benefits” with the Division’s Office of the Judges of Compensation
Claims naming both Gallagher and its insurer. Picon’s petition requested
“[a]uthorization for surgery as prescribed by Dr. Rodriguez Font [sic] on 6/18/12
(right shoulder manipulation)” and “[a]uthorization for a PCP to do the pre-ops as
prescribed by Dr. Rodriguez-Font [sic].”
B. The Insurer Does Not Authorize Surgery and Discontinues Benefits
Under Florida law, Gallagher’s insurer had 14 days to: (1) “either pay the
requested benefits without prejudice to its right to deny within 120 days from
receipt of the petition”; or (2) “file a response to petition.” Fla. Stat. § 440.192(8).
However, the insurer did not pay for the surgery and did not file a response to the
petition.
On August 27, 2012, Picon’s attorney contacted Gallagher’s attorney “and
inquired whether surgery would be authorized.” That same day, Gallagher’s
attorney responded by attaching Dr. Blinn’s report and writing: (1) “Dr. Blinn . . .
indicates your client’s shoulder condition is unrelated to her work activities”; and
(2) Gallagher’s insurer “will not authorize the shoulder manipulation prescribed by
Dr. Font-Rodriguez.”
6
Case: 13-12829 Date Filed: 11/19/2013 Page: 7 of 27
That same day, Gallagher’s Roth sent an email to an employee at Dr. Font-
Rodriguez’s office stating: “Based upon our 8.23.12 IME with Dr. Blinn, surgery
will not be authorized under workers’ compensation. Please note that no further
shoulder treatment will be authorized as Dr. Blinn did not feel her shoulder
complaints were related to her job duties.” Dr. Font-Rodriguez’s employee sent
this message on to Picon, writing: “Sorry this is the answer I received today.”
C. Picon’s September 2012 Complaint
Thereafter, on September 17, 2012, Picon filed a complaint in state court
alleging that Gallagher had acted negligently and that “[o]ver the course of her
employment between 1991 and February 2, 2012, the Plaintiff suffered on-the-job
injuries during the work she performed as a consequence of the aforesaid
negligence of the Defendant.” Gallagher removed the case to federal court.
D. Picon’s September 2012 Withdrawal of Workers’ Compensation
Petition
On September 25, 2012, Picon voluntarily dismissed her workers’
compensation petition. Picon’s attorney stated that Picon did so “[r]elying upon
the position taken by Gallagher Bassett that Ms. Picon’s shoulder injury was not
related to her employment.” Picon paid for and underwent surgeries on her right
shoulder on October 1, 2012 and November 26, 2012. Dr. Font-Rodriguez
performed these surgeries.
III. SUMMARY JUDGMENT PROCEEDINGS
7
Case: 13-12829 Date Filed: 11/19/2013 Page: 8 of 27
After discovery, Gallagher filed a motion for summary judgment. Gallagher
argued that Picon’s negligence claim was barred by workers’ compensation
exclusivity. Specifically, Gallagher reasoned that: (1) Picon was its employee at
all relevant times; (2) it maintained a workers’ compensation liability insurance
policy; and (3) Picon’s sole vehicle to “challenge Dr. Blinn’s finding is the
workers’ compensation court and a ruling by a Judge of Compensation Claims in
her favor.”
In opposition, Picon argued that summary judgment was inappropriate
because Gallagher was estopped from asserting workers’ compensation
exclusivity. Picon reasoned that estoppel applied because: (1) Gallagher denied
her surgery claim on the basis that her condition was “unrelated to her work
activities”; and (2) Picon acted in reliance on Gallagher’s position that her
condition was “unrelated to her work activities” by bringing a tort claim,
dismissing her workers’ compensation petition, and paying for the necessary
medical procedures. 2
2
The district court also denied Picon’s request for partial summary judgment in her favor,
but Picon does not appeal that ruling.
8
Case: 13-12829 Date Filed: 11/19/2013 Page: 9 of 27
The district court granted Gallagher’s motion for summary judgment. The
district court concluded that under Florida law, workers’ compensation exclusivity
barred Picon’s negligence claim. Picon appealed. 3
IV. APPLICABLE FLORIDA LAW
In this diversity case, we apply the law of the forum state, Florida. See
James River Ins. Co. v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1274 n.1 (11th
Cir. 2008).
Under Florida law, when an individual suffers an accidental compensable
injury “arising out of work performed in the course and scope of employment,” the
individual’s employer must provide compensation for that injury or furnish the
benefits through a workers’ compensation insurance carrier. Fla. Stat. § 440.09(1).
The workers’ compensation system is the employee’s only means of pursuing
claims against her employer for injuries “arising out of work performed in the
course and scope of employment,” see id., subject to two narrow statutory
exceptions, neither of which applies here. Fla. Stat. § 440.11(1).
We review eight Florida appellate decisions that discuss the estoppel
doctrine in an employee’s lawsuit where the employer raised workers’
3
We review de novo a district court’s grant of summary judgment and draw “all
inferences and review all evidence in the light most favorable to the non-moving party.”
Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012) (internal
quotation marks omitted). “Summary judgment is appropriate only if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Id. (internal quotation marks omitted).
9
Case: 13-12829 Date Filed: 11/19/2013 Page: 10 of 27
compensation exclusivity as an affirmative defense. We then apply that Florida
law in those decisions to Picon’s case. 4
A. Elliott v. Dugger (Fla. 1st DCA 1989)
In Elliott v. Dugger, 542 So. 2d 392 (Fla. 1st DCA 1989), the plaintiffs
Robert Elliott (an employee at a state prison) and his wife sued the Florida
Department of Corrections’s Secretary and others for negligence after Mr. Elliott
“ingested blood serum contaminated with the AIDS virus while on duty” at a
prison. Id. at 392–93. The Elliotts’ complaint alleged that “Robert Elliott was
denied a claim for workers’ compensation benefits on the basis that the infection of
the positive serum did not arise ‘naturally or unavoidably’ as a result of his
employment.” Id. at 393.
In their answer, the defendants “raised the affirmative defense of the
exclusivity of the Workers’ Compensation Act.” Id. In response, the Elliotts
argued that the defendants were “estopped from asserting the exclusivity defense
on the basis that ‘[p]laintiff timely filed a claim for workers’ compensation
benefits; his claim was denied by the state of Florida; plaintiff detrimentally and in
reliance thereon instituted the subject action.’” Id. (alteration in original).
4
All eight decisions are by District Courts of Appeal. If the Florida Supreme Court has
not addressed an issue, we look to guidance from the Florida District Courts of Appeal and apply
those courts’ decisions absent “persuasive indication” that the Florida Supreme Court would do
otherwise. See Flintkote Co. v. Dravo Corp., 678 F.2d 942, 945 (11th Cir. 1982).
10
Case: 13-12829 Date Filed: 11/19/2013 Page: 11 of 27
Later on, the defendants moved for summary judgment on the basis of
workers’ compensation exclusivity. Id. at 393. In response, the plaintiffs
submitted Mr. Elliott’s testimony stating that “his claim for benefits was denied in
a letter which he subsequently received in which it was stated that there were no
benefits due under his claim.” Id. The Elliotts were not able to locate that letter.
Id. 5
The trial court granted the defendants’ motion. Id. On appeal, the Elliotts
argued that “there were material issues of fact existing as to whether [the
defendants] [are] estopped from raising the exclusivity provisions of the Workers’
Compensation Act as a defense.” Id.
Reversing, the First District Court of Appeal explained that “[s]ummary
judgment is particularly unsuitable in a case where the facts and circumstances
indicate the possibility of an estoppel.” Id. The Florida appellate court declined to
“construe the meaning of the alleged representation made by [the defendants] that
no benefits were due claimant.” Id. at 394 (emphasis added). The court said that
“representation could have meant, for instance, either that the Department of
Corrections was of the opinion that there had yet been no injury shown, or that it
had taken the position that Elliott had no right to claim benefits because the injury
was not a covered injury.” Id. The court went on that “if [the defendants] denied
5
Nothing in the record suggested that the employer-state ever paid workers’
compensation benefits before denying the claim. See Elliott, 542 So. 2d at 393.
11
Case: 13-12829 Date Filed: 11/19/2013 Page: 12 of 27
workers’ compensation coverage on the basis that Robert Elliott’s alleged injury
was not encompassed within the Act or on the basis that he was injured under other
situations not covered by the Act, the Elliotts were free to pursue common law
remedies.” Id. Thus, summary judgment was inappropriate, in light of the
existence of “genuine issues of material fact concerning the issue of estoppel.” Id.
Specifically, that factual issue was what was the employer’s given reason for
denying the workers’ compensation claim. See id.
B. Byerley v. Citrus Publishing, Inc. (Fla. 5th DCA 1999)
Next was Byerley v. Citrus Publishing, Inc., 725 So. 2d 1230 (Fla. 5th DCA
1999), where an employee, Audrey Byerley, sued her employer, Citrus Publishing,
for negligence after she sustained injuries from tripping over a bench located on
Citrus Publishing’s property. Id. at 1231. Ms. Byerley had “punched out for the
day” when the accident occurred. Id. The accident caused Ms. Byerley to suffer
“a compression fracture of the vertebrae in her back, pull[] her right groin muscle,
fracture[] her left kneecap, and suffer[] numerous abrasions.” Id. “Her total
medical bills exceeded $30,000.” Id.
Ms. Byerley first “filed a claim for workers’ compensation benefits which
was denied by the employer and its workers’ compensation carrier.” Id. Citrus
Publishing did not pay any portion of Ms. Byerley’s $30,000 medical bills or
otherwise pay her workers’ compensation benefits. See id.
12
Case: 13-12829 Date Filed: 11/19/2013 Page: 13 of 27
“The notice of denial stated: ‘Injury did not arise out [of] the course and
scope of [Byerley’s] employment. Employee was clocked out and had exited the
building, when she tripped over a bench on the pavement.’” Id. at 1231
(alterations in original). After Ms. Byerley filed her tort complaint, the employer
moved for summary judgment, asserting that “Byerley’s exclusive remedy was
worker’s compensation.” Id. The trial court granted summary judgment for the
employer. Id.
Reversing, the Fifth District Court of Appeal reasoned that Citrus Publishing
“created a Hobson’s choice for Byerley: the employer, through its insurance
carrier, denied her claim for workers’ compensation, and then, when Byerley
elected to proceed in a tort action, argued that she could not sue because her
exclusive remedy was the Workers’ Compensation Act.” Id. at 1232. Therefore,
the appellate court concluded that “it would be inequitable for an employer to deny
worker’s compensation coverage on the ground that the employee’s injury did not
arise out of the course and scope of employment, then later claim immunity from a
tort suit on the ground that the injury did arise out of the course and scope of
employment.” Id.
The Florida court reasoned that: (1) the employer had informed Ms. Byerley
that it was denying her claim “because it did not occur in the course and scope of
her employment”; (2) Ms. Byerley had “accepted and relied on the denial, bore her
13
Case: 13-12829 Date Filed: 11/19/2013 Page: 14 of 27
medical expenses, then sued the employer in tort as permitted by the statute”; and
(3) the “elements of estoppel are shown” and the employer was not entitled to
summary judgment. Id. at 1232–33.
C. Tractor Supply Co. v. Kent (Fla. 5th DCA 2007)
The third case, Tractor Supply Co. v. Kent, 966 So. 2d 978 (Fla. 5th DCA
2007), involved an employee, Kent, who worked for Tractor Supply Co. (“TSC”).
Id. at 979. Kent alleged that, while at work, he was exposed to hydrated lime dust,
which can cause lung injuries and aggravate breathing disorders. Id. Kent filed a
petition for benefits through the workers’ compensation system, and his
employer’s insurer denied the claim, stating the condition complained of: (1) “was
the result of a pre-existing medical condition and not the result of employment
with TSC”; and (2) “was the result of a prior worker’s compensation claim that
had been settled for continuing treatment.” Id.
Kent initially pursued remedies through the workers’ compensation system.
Id. After discovery in that forum and just before mediation, Kent voluntarily
dismissed his workers’ compensation petition and filed a complaint in state court
against TSC. Id. The workers’ compensation claim thus “was withdrawn before it
was adjudicated.” Id.
In the tort case, Kent moved for partial summary judgment on the issue of
whether TSC was estopped from asserting workers’ compensation exclusivity as
14
Case: 13-12829 Date Filed: 11/19/2013 Page: 15 of 27
an affirmative defense. Id. The trial court granted Kent’s motion and TSC
appealed. Id.
Reversing, the Fifth District Court of Appeal framed the issue as: whether
the Byerley and Elliott decisions “establish that an employer such as TSC, who,
through its comp carrier, denies a worker’s compensation claim on the basis that
the injury or illness was pre-existing, is then estopped from asserting worker’s
compensation immunity and exclusivity in defending against a civil tort action[?]”
Id. at 978 (footnote omitted). The Florida appellate court held that they do not. Id.
at 980–81.
The Florida appellate court read Byerley narrowly, stating that “Byerley
holds that expressly asserting that an injury did not occur in the scope and course
of employment estops the employer from defending a subsequent tort action on the
ground that the claim arose in the course and scope of employment.” Id.
Importantly, “[i]t is not simply the denial, but rather the irreconcilable positions
asserted, that led to the result in Byerley.” Id. The irreconcilable position in
Byerley was the insurer claimed Ms. Byerley’s fall injury did not occur in the
course and scope of her employment but later asserted workers’ compensation
exclusivity when she sued. See id.
In contrast, in Kent, the Florida appellate court explained, TSC’s insurer
“did not assert that no employment relationship existed or that the incident
15
Case: 13-12829 Date Filed: 11/19/2013 Page: 16 of 27
occurred outside the scope of employment. Rather, the denial asserts that under
the terms of the Worker’s Compensation Act, the injury is one which is not
deemed compensable.” Id. The Florida appellate court explained that “[t]here is
no irreconcilable conflict in the employer here raising a pre-existing medical
condition defense to a comp claim, but asserting it is, nevertheless, insulated from
a civil suit.” Id. at 981. To the extent that Kent objected to the insurer’s
determination, the court held that “Kent could and should have litigated the
defense of pre-existing injury/illness in the comp action” as “[a] pre-existing injury
or illness is a recognized defense to a claim for comp benefits.” Id.
D. Coca-Cola Enterprises, Inc. v. Montiel (Fla. 2d DCA 2008)
Shortly thereafter, Florida’s Second District Court of Appeal decided Coca-
Cola Enterprises, Inc. v. Montiel, 985 So. 2d 19 (Fla. 2d DCA 2008), the fourth
case we review. In Montiel, the plaintiff “suffered a back injury while unloading
Coca-Cola products at a Tampa Kash N’ Karry store.” Id. at 19. The appellate
court stated that “[u]nquestionably, the injury occurred in the course and scope of
employment.” Id. Monteil’s employer, Coca-Cola, “paid workers’ compensation
benefits to him for twelve weeks.” Id. Coca-Cola stopped doing so upon receipt
of medical evidence indicating “that Mr. Monteil’s condition no longer related to
his work injury, but to a degenerative condition.” Id. at 20. Monteil “did not claim
16
Case: 13-12829 Date Filed: 11/19/2013 Page: 17 of 27
further benefits under the workers’ compensation statute” and instead “sued Coca-
Cola and Kash N’ Karry for negligence.” Id.
In the negligence action, Coca-Cola sought summary judgment on the basis
of workers’ compensation exclusivity. The trial court denied the summary
judgment after the plaintiff argued that “the denial of further benefits estopped
Coca-Cola from claiming workers’ compensation exclusivity.” Id.
Reversing, the Florida appellate court pointed out that, unlike in Elliott and
Byerley, “Mr. Monteil’s injury was work-related. Coca-Cola never contended
otherwise. Coca-Cola paid benefits for approximately three months. Indeed,
Coca-Cola denied further benefits only when medical evidence indicated Mr.
Monteil’s condition no longer related to his work injury.” Id. The court concluded
that it was not aware of a “statutory provision that, under these circumstances,
strips the employer of the exclusivity defense.” Id. “Had Mr. Monteil thought
himself entitled to further benefits,” the court explained, “the statute provided a
vehicle to seek relief.” Id. (citing Fla. Stat. § 440.192 (“Any employee may, for
any benefit that is ripe, due, and owing, file with the Office of the Judges of
Compensation Claims a petition for benefits which meets the requirements of this
section and the definition of specificity in § 440.02.”)).
E. Schroeder v. Peoplease Corp. (Fla. 1st DCA 2009)
17
Case: 13-12829 Date Filed: 11/19/2013 Page: 18 of 27
Our fifth case is Schroeder v. Peoplease Corp., 18 So. 3d 1165 (Fla. 1st
DCA 2009), where plaintiff Schroeder, a truck driver, worked for Peoplease Corp.
Id. at 1166. Schroeder was injured when he attempted to manually move a 2,000
pound load within his trailer causing the onset of heart problems and the need for
emergency heart surgery. Id. Schroeder filed a workers’ compensation petition.
Id. “Peoplease controverted the entire claim and filed a notice of denial which”
gave six reasons for denying the claim. Id. One of the reasons was “[t]he present
condition of claimant is not the result of injury arising out of and in the course and
scope of his or her employment.” Id. The other reasons related to whether a
causal connection existed between Schroeder’s work and his condition and
whether his injury was a compensable one under the statute. Id. It was undisputed
that Peoplease had paid no benefits, either medical or lost wages, since Schroeder’s
injury in 2006. Id. at 1168.
After the denial, Schroeder commenced a civil action against, inter alia,
Peoplease and argued that, given its denial, Peoplease could not assert workers’
compensation exclusivity as an affirmative defense. Id. at 1165–66. Peoplease
sought summary judgment on the basis of workers’ compensation exclusivity.
Peoplease filed an affidavit of its insurer’s adjuster stating that the intent of the
denial notice was “neither to assert a lack of an employment relationship nor to
allege that Mr. Schroeder’s incident occurred outside the scope of the employment
18
Case: 13-12829 Date Filed: 11/19/2013 Page: 19 of 27
relationship.” Id. at 1167. Instead, the intent of the denial notice “was to dispute
that Mr. Schroder’s injury was compensable.” Id. The state trial court granted
summary judgment for Peoplease. The Schroeders appealed. Id. at 1167–68.
Reversing, the First District Court of Appeal concluded that the case was
akin to Byerley and Elliott. The employer, Peoplease tried to distinguish Byerley
by arguing that in that case “it was clear that the employee was not in the course
and scope of employment because she had ‘clocked out and had exited the
building, when she tripped over a bench.’” Id. at 1169. The Schroeder court
rejected the employer’s argument that “when the facts make clear that the
employee suffered a workplace incident, then estoppel will never apply despite
what the employee and carrier may have said in the notice of denial.” Id. Thus,
like in Elliott, “there remain disputed issues of material fact as to the meaning of
the language employed in the notice of denial.” Id. at 1170. The court pointed out
that “[s]ummary judgment is inappropriate where the wording of a document is
ambiguous and interpretation involves questions of fact.” Id. Because “[w]hether
estoppel is appropriate in this case and whether the employer took irreconcilable
positions is dependent upon the meaning to be accorded the notice of denial,” the
court reversed and remanded. Id.
F. Coastal Masonry, Inc. v. Gutierrez (Fla. 3d DCA 2010)
19
Case: 13-12829 Date Filed: 11/19/2013 Page: 20 of 27
Our sixth case is Coastal Masonry, Inc. v. Gutierrez, 30 So. 3d 545 (Fla. 3d
DCA 2010), where the plaintiff, Gutierrez, was injured while “lifting concrete
blocks.” Id. at 547. Gutierrez filed a petition for workers’ compensation benefits
from his employer, Coastal Masonry, and the employer’s insurer denied the claim
“in its entirety.” Id. It was “undisputed that Coastal [Masonry] paid no benefits to
Gutierrez.” Id.
The notice of denial gave several reasons, specifically: (1) “[t]he claimant
did not report the alleged injury to the employer in a timely manner”; (2) “[t]he
present condition of the claimant is not the result of an injury by accident arising
out of and in the course and scope of employment”; (3) “[t]here is no accident or
occupational disease”; (4) “[t]he condition complained of is not the result of an
injury”; (5) “[t]he claimant’s medical condition is the result of a pre-existing
condition or disease”; and (6) “[t]he claimant’s medical condition is personal, pre-
existing and/or idiopathic in nature.” Id.
After receiving the notice of denial, Gutierrez “voluntarily dismissed his
petition and filed a negligence action against Coastal [Masonry].” Id. Gutierrez’s
complaint alleged “that Coastal [Masonry] had denied his workers’ compensation
claim on the basis that the accident and injuries did not arise out of his employment
and were not covered by workers’ compensation.” Id. (internal quotation marks
and alterations omitted). Coastal Masonry admitted this allegation “and further
20
Case: 13-12829 Date Filed: 11/19/2013 Page: 21 of 27
denied that Gutierrez was a Coastal [Masonry] employee.” Id. “Notwithstanding
[this] denial . . . , Coastal [Masonry] denied that it had waived workers’
compensation immunity and further asserted that immunity as an affirmative
defense.” Id.
Later, Coastal Masonry moved for summary judgment on the basis of
workers’ compensation exclusivity and the trial court denied the motion and found
that Coastal Masonry was estopped as a matter of law from asserting the defense.
Id. Coastal Masonry appealed. Id.
Affirming, the Third District Court of Appeal held that “the record shows
that Coastal [Masonry] has taken inconsistent positions.” Id. at 548. Specifically,
it had “denied Gutierrez’s claim for workers’ compensation benefits stating that
‘[t]he present condition of the claimant is not the result of an injury by accident
arising out of and in the course and scope of employment.’” Id. Then, Coastal
Masonry “asserted as an affirmative defense that it was entitled to the exclusivity
defense because the accident arose in the course and scope of Gutierrez’s
employment.” Id. The appellate court pointed out that Coastal Masonry’s
summary judgment position was inconsistent with the position it took in the
workers’ compensation forum and in its own answer in the case. Id.
Having determined that the employer took inconsistent positions, the Florida
appellate court next turned to “whether, as a matter of law, Coastal [Masonry] is
21
Case: 13-12829 Date Filed: 11/19/2013 Page: 22 of 27
estopped from raising a workers’ compensation exclusivity defense.” Id. The
court explained that the elements of estoppel are: (1) “a representation by the party
estopped to the party claiming the estoppel as to some material fact, which
representation is contrary to the condition of affairs later asserted by the estopped
party”; (2) “reliance upon this representation by the party claiming the estoppel”;
and (3) “a change in the position of the party claiming the estoppel to his
detriment, caused by the representation and his reliance thereon.” Id. (internal
quotation marks omitted). The court determined that “the record established the
elements of estoppel” as Gutierrez “(1) dismissed the worker’s compensation
claim; (2) incurred medical expenses; and (3) filed a negligence action to recover
damages resulting from his injury.” Id. Accordingly, the appellate court affirmed
the trial court’s conclusion that estoppel applied as a matter of law to bar Coastal
Masonry’s workers’ compensation defense. Id.
G. Mena v. J.I.L Construction Group Corp. (Fla. 4th DCA 2012)
Next, we turn to Mena v. J.I.L. Construction Group Corp., 79 So. 3d 219
(Fla. 4th DCA 2012). The plaintiff, Mena, “while constructing a home, . . . fell to
the ground from a second-floor roof truss” and “sustained multiple injuries.” Id. at
221. Mena filed workers’ compensation claims with his employer (“J.I.L.”) and
the sub-contractor (“Slorp”). Id. at 222. Both companies denied the claims. Id.
Slorp’s notice of denial stated that “Mena was employed by J.I.L., not Slorp.” Id.
22
Case: 13-12829 Date Filed: 11/19/2013 Page: 23 of 27
J.I.L.’s notice of denial said: (1) “There is no employer/employee relationship
established”; (2) “Failure to report injury timely”; (3) “The
Employer/Carrier/Servicing Agent reserves the right to these and any other
defenses that may become apparent.” Id.
Eight months later, Mena voluntarily dismissed his workers’ compensation
petitions and “filed suit against J.I.L. and Slorp for negligence.” Id. Both
defendants asserted workers’ compensation exclusivity as affirmative defenses. Id.
When defendants moved for summary judgment, “Mena argued that J.I.L. and
Slorp should be estopped from asserting worker’s compensation exclusivity
because of their previous denials.” Id. The trial court granted summary judgment
to defendants, “finding that their previous ‘general denials’ were not inconsistent
with their claims of entitlement to worker’s compensation immunity.” Id.
Reversing as to defendant J.I.L., the Fourth District Court of Appeal
explained that when “the language employed in the notice of denial could give rise
to more than one interpretation, such that it cannot be fairly determined whether
the employer’s positions are inconsistent, summary judgment is inappropriate.” Id.
at 223. The court applied this principle to the case, noting that “J.I.L’s denial
suggested it was asserting that Mena was not its employee. At the very least, . . .
the meaning of the language employed in the notice of denial is unclear.” Id.
(internal quotation marks omitted). Because “issues of material fact remain with
23
Case: 13-12829 Date Filed: 11/19/2013 Page: 24 of 27
respect to whether J.I.L. asserted inconsistent positions and whether it should be
estopped from claiming it is entitled to worker’s compensation immunity,” the
court reversed “the entry of summary judgment in favor of J.I.L.” Id.
On the other hand, the Florida appellate court affirmed summary judgment
in favor of Slorp. Id. at 223–24. The court observed that “Slorp maintained
consistent positions in the worker’s compensation forum and in Mena’s civil
action.” Id. Specifically, “Slorp denied Mena’s worker’s compensation claim on
the basis that Mena was employed by J.I.L. not Slorp, and that J.I.L. had coverage.
Slorp’s affirmative defense of worker’s compensation immunity stated that Mena
was acting in the course and scope of employment performing work subcontracted
by Slorp to J.I.L.” Id.
H. Ocean Reef Club, Inc. v. Wilczewski (Fla. 3d DCA 2012)
Most recently, in Ocean Reef Club, Inc. v. Wilczewski, 99 So. 3d 1 (Fla. 3d
DCA 2012), two former employees (Wilczewski and Leon) of a beauty salon
alleged that they were exposed to chemical fumes while at work, and as a result,
had suffered “asthma-like symptoms, headaches and respiratory problems.” Id. at
2. The employees notified their employer of their injuries, but the beauty salon
owner, Ocean Reef, did not notify its workers’ compensation insurance carrier. Id.
The employees “brought a civil action for damages against Ocean Reef” at which
point Ocean Reef “notified the workers’ compensation insurance carrier of the
24
Case: 13-12829 Date Filed: 11/19/2013 Page: 25 of 27
claims.” Id. The insurer “denied the claims contending that the illnesses did not
occur in the course and scope of employment” and noting that “the statute of
limitations had run.” Id.
In the employees’ civil action, Ocean Reef moved for summary judgment
“arguing that Wilczewski’s and Leon’s injuries were work-related, and that, based
on workers’ compensation immunity, it was immune from suit as a matter of law.”
Id. at 3. The trial court denied the motion and Ocean Reef appealed. Id. at 4.
Affirming, the Third District Court of Appeal held that, as a matter of law,
Ocean Reef was estopped from asserting workers’ compensation immunity. Id.
The court reasoned that because “the carrier’s denial is absolutely clear on its face
that the reason for the 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.” Id. As the carrier’s basis for denying the claim was
imputed to the employer, Ocean Reef could not “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.” Id.
V. GENUINE ISSUES OF MATERIAL FACT
These decisions make clear that, under Florida law, whether estoppel applies
to prevent an employer from asserting the workers’ compensation exclusivity
defense in a tort action may turn on what reasons were given for denying workers’
25
Case: 13-12829 Date Filed: 11/19/2013 Page: 26 of 27
compensation benefits. When the record reveals multiple possible explanations for
the denial, or the language in the denial document is ambiguous and gives rise to
more than one interpretation, issues of material fact exist over whether the
employer’s position is inconsistent so as to indicate possible estoppel. See Mena,
79 So. 3d at 222–23; Schroeder, 18 So. 3d at 1170; Elliott, 542 So. 2d at 393–94.
That is the case here. Gallagher’s insurer paid Picon workers’ compensation
for almost six months as a result of her right shoulder pain, suggesting that
Gallagher’s insurer considered the condition work-related. But when Picon
requested the surgery recommended by Dr. Font-Rodriguez, Gallagher denied the
request, relying on Dr. Blinn’s opinion that her right shoulder problem was not
work-related. Gallagher on appeal argues that Dr. Blinn meant only that Picon’s
work was not a “major contributing cause” of her right shoulder pain.
The communications in the record between Gallagher and Picon or her
attorney do not contain the words “major contributing cause” or otherwise clearly
reflect this position. Further, to some extent, Dr. Blinn appeared to focus on
medical causation by saying Picon’s injury was due to her age, diabetes, vascular
disease, and chest pain, which may make Picon’s problems preexisting.
On the other hand, Gallagher’s emails, viewed in the light most favorable to
Picon, can be construed as denying the existence of an incident occurring in the
course and scope of employment. For example, Gallagher’s attorney wrote that
26
Case: 13-12829 Date Filed: 11/19/2013 Page: 27 of 27
Picon’s “shoulder condition is unrelated to her work activities.” Likewise,
Gallagher’s senior claims representative Roth wrote that “no further shoulder
treatment will be authorized as Dr. Blinn did not feel her shoulder complaints were
related to her job duties.” Dr. Blinn himself wrote “it is not reasonable to state that
using a mouse or computer at a workstation in a repetitive fashion is the reason for
this persons [sic] right shoulder problem.”
We do not conclude that estoppel applies here as a matter of law. We
determine only that there were genuine issues of material fact as to what were
Gallagher’s reason or reasons for the denial of Picon’s request for workers’
compensation benefits. Accordingly, the district court erred in granting summary
judgment to the defendant Gallagher as a matter of law based on its workers’
compensation exclusivity affirmative defense.
VI. CONCLUSION
For the reasons stated above, we reverse the grant of summary judgment for
the defendant Gallagher and remand for further proceedings consistent with this
opinion.
REVERSED and REMANDED.
27