Many experts believe that the First District Court of Appeal’s April 5, 2019 ruling in Sedgwick CMS v. Tamatha Valcourt-Williams will open the floodgates for more civil negligence lawsuits brought by employees against employers.
Because of the immunity provisions of section 440.11, Florida Statutes, such lawsuits have always been exceedingly rare in Florida. Under the current version of the statute, the exceptions to this exclusiveness of liability are:
- When an employer fails to secure workers’ compensation coverage; or
- When an employer commits an intentional tort that causes the injury or death of the employee
A third exception arises when an employer/carrier defends a workers’ compensation claim on the basis that “the injury did not occur in the course and scope of employment, or that there was no employment relationship.” An employer taking this position is estopped from asserting the 440.11 workers’ compensation immunity defense in a civil negligence suit brought against the employer. See, Byerely v. Citrus Publishing, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999).
The Sedgwick case appears to have expanded the scope of injuries workers’ compensation employers/carriers can deny as not having occurred in the course and scope of employment. The flip side of this will be an increase in opportunities for personal injury lawyers to pursue civil negligence claims resulting from workplace accidents. It remains to be seen if these projections will hold up over time, but workers’ compensation insurance companies and personal injury lawyers are not expected to waste any time testing the waters.
As workers’ compensation claimants’ attorneys are bracing for an onslaught of denied claims, personal injury lawyers are licking their chops at the prospect of seeing an expanded number of personal injury cases come their way. While a denied claim may still be prosecuted under workers’ compensation, some of those denials will naturally end up as circuit court negligence cases. In those cases, claims of workers’ compensation immunity will be met with Byerley and Sedgwick arguments. Moreover, Sedgwick expands the opportunities to jump right into the personal injury arena rather than wait for the claim to be denied under workers’ compensation. While not waiting has always been an option, Sedgwick makes it easier for the plaintiff to argue successfully that the injury did not occur in the course and scope of the employment.
In Sedgwick, a workers’ compensation adjuster authorized to work from home injured herself during a coffee break when she tripped over her dog. She filed for workers’ compensation benefits and won at the trial level. The employer appealed and was successful in having the trial level decision reversed. The DCA decided that the adjuster was not injured in the course and scope of her employment. It framed the question of compensability as “whether the employment—wherever it is—’“necessarily exposes a claimant to conditions which substantially contribute to the risk of injury,”’ a concept it calls “occupational causation,” Sentry Ins. Co. v. Hamlin, 69 So.3d 1065, 1068 (Fla. 1st DCA 2011) (citing Acker v. Charles R. Burklew Constr., 654 So.2d 1211 (Fla. 1st DCA 1995)), or a risk not existent in the claimant’s “non-employment life.” Medeiros v. Residential Cmtys. of Am., 481 So. 2d 92, 93 (Fla. 1st DCA 1986); accord Glasser v. Youth Shop, 54 So. 2d 686, 687-88 (Fla. 1951) (“Since industry must carry the burden, there must then be some causal connection between the employment and the injury, or it must have had its origin in some risk incident to or connected with the employment, or have followed from it as a natural consequence.”).
The case was heard En banc, meaning means that it was considered by all of the First DCA judges rather than by a panel of three judges. Adding further import to the decision is the special status of the First DCA vis-a-vis workers’ compensation cases. The First DCA is the only DCA among the five in Florida that reviews workers’ compensation cases. Because of this, there is never conflict jurisdiction, which arises when a DCA’s opinion conflicts with that of another DCA. Because conflict jurisdiction is one of the few ways cases get to the Supreme Court of Florida, First DCA opinions often will be the final word on workers’ compensation matters.
Two judges dissented in Sedgwick with written opinions. (A dissent is a disagreement with the majority decision.) Those opinions lay bare by detailed analysis the can of worms the majority has opened, while also providing a clear road map to workers’ compensation insurance companies for denying claims and to personal injury lawyers for overcoming workers’ compensation immunity.
The majority tried to gingerly circumvent decades of precedent regarding the compensability of workplace injuries, perhaps not fully appreciating the ramifications of its ruling. The dissenters recognized the consequences like a flashing neon sign. They laid out a laundry list of disagreements with the majority opinion and expected consequences. They were particularly concerned about an uptick in uncompensated claimants and personal injury cases.
VALID POINTS MADE BY THE DISSENT (Much of the language is pulled directly from the opinion. Since we are trying to show the points as simply as possible, quotation marks and most citations have been left out. Interested parties are advised to read the opinion rather than rely entirely on this blog/blawg):
- Now “arising out of” means only injuries that are directly caused by working rather than incident to employment. The majority opinion puts at risk many established doctrines of Florida workers’ compensation by interpreting “occupational causation” in “arising out of” to only mean directly performing work. See § 440.02(36), Fla. Stat. The majority’s narrow definition of occupational causation is contrary to the Florida Supreme Court approving coverage for injuries arising from incidental causes.
- The majority opinion upends the long-standing personal comfort doctrine, and has now defined “occupational causation” in “arising out of” to mean only “directly caused by” engaging in the core functions of employment. See § 440.02(36), Fla. Stat. The personal comfort doctrine is a long-standing acknowledgement that, during a work day, an employee engaging in personal comfort activities, such as a refreshment break, benefits the employer so long as the activities are incidental to the performance of work activities, because an employee attending to personal comfort “is conducive to the facilitation of the employment.” The majority also discredits the personal comfort doctrine without being able to explicitly overrule it since the doctrine was approved by the Florida Supreme Court.
- Confusing the terms, ‘arising out of’, which refers to the origin of the cause of the accident, with, ‘in the course of employment,’ which refers to the time, place and circumstances under which the accident occurs.”
- The majority rationale also calls into question, without being able to overturn, the “bunkhouse rule” approved by the Florida Supreme Court. See Wilson Cypress Co. v. Miller, 26 So. 2d 441 (Fla. 1946). The bunkhouse rule instructs “that when the contract of employment contemplates that the employee shall sleep on the employer’s premises, as an incident to the employment, and is injured while not engaged on a purely personal mission, the injury is compensable.” Id. at 442.
- Uncertainty has undoubtedly been injected into the workers’ compensation system by the majority’s holding. Are the personal comfort and other long-established doctrines of workers’ compensation law extant or extinct after today? I think these doctrines survive since they spring from the Florida Supreme Court; but how should the majority’s narrow interpretation of occupational causation be seen by a claimant, employer, claim’s adjuster, attorney, or JCC? Markets crave certainty, and the Florida workers’ compensation system is a huge market. By the majority’s opinion we have injected substantial uncertainty in the multibillion-dollar Florida workers’ compensation marketplace.
- By disclaiming workers’ compensation coverage (or more likely its workers’ compensation carrier disclaiming coverage), the employer may be opening itself and its employees to tort liability. Clever attorneys could bring civil actions against employers for workplace falls caused by tripping over another’s property, failing to provide safe footwear, failing to have non-skid flooring, failing to inspect, failing to maintain the premises, and the myriad of other grounds asserted for premises liability.
- Additionally, eliminating compensability for workplace slip and falls opens the possibility of an injured worker suing fellow employees. Those fellow employees are currently immune from suit for negligence under section 440.11(1), Florida Statutes.
It is expected that the reverberations from Sedgwick CMS v. Tamatha Valcourt-Williams will be felt immediately. Only time will tell whether Sedgwick turns the status quo on its head. Rulings will be made, appeals will be taken. Sedgwick may even find its way to the Supreme Court of Florida on the basis of being an issue of great public importance (another way for cases to get to the top court). While the Supreme Court is presently packed with conservative justices, it is hard to predict the outcome in the highest state court. Since conservative judges have tended to deny benefits to workers’ compensation claimants, some people think the court will affirm the 1st DCA ruling. However, a greater number of liability cases can create turmoil in the business community, a status the Supreme Court may look upon with disfavor, as compared to the tightly defined allocation of benefits under workers’ compensation.
Contact us at 305-758-4900 or by email to learn your legal rights.
Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.