Jeffrey P. Gale, P.A. // Avoiding Workers’ Compensation Immunity by Estoppel — Not So Fast!

Florida’s civil liability and workers’ compensation systems handle legal matters for people injured or who have died in accidents. The systems have some similarities and differences. The biggest differences are that the plaintiff must prove fault to recover under civil law, and recoveries for non-economic damages (such as pain and suffering) are not available in workers’ compensation cases. It is not always obvious which remedy route is the best to follow. Most of the time, the aggrieved party does not have a choice.

Employers and fellow-employees are immune from civil lawsuits for work-related accidents. See sections 440.10 and 440.11, Florida Statutes. In other words, the workers’ compensation system is the harmed individual’s exclusive remedy.

Exceptions arise when the employer has failed to secure the payment of workers’ compensation (440.10(1) and 440.11(1)(a)), the employer commits an intentional tort (440.11(1)(b), or the fellow-employee acts with willful and wanton disregard or unprovoked physical aggression or with gross negligence (440.11(1)).

Another exception may apply when 1) the employer makes a representation of a material fact that is contrary to a later-asserted position; 2) the harmed worker relies on that representation; and 3) the worker is damaged by changing his or her position in reliance on said representation. See Specialty Emp. Leasing v. Davis, 737 So. 2d 1170, 1172 (Fla. 1st DCA 1999) (quoting Dep’t of Revenue v. Anderson, 403 So. 2d 397, 400 (Fla. 1981)). This exception is known as equitable estoppel.

In McNair v. Dorsey, 291 So.3d 607 (Fla. 1st DCA 2020), McNair was injured while carrying a tree branch to a wood chipper. The employer first asserted that there was “no compensable accident.” In a later pretrial stipulation, the employer claimed that no compensable accident occurred, and took the position that McNair’s accident did not occur within the course and scope of his employment.

After withdrawing his workers’ compensation claim, McNair instituted an action in circuit court alleging negligence on the part of his employer and a fellow-employee. The employer filed a motion for summary judgment alleging that the “accident occurred within the course and scope of [McNair’s] employment,” and that they were therefore entitled to workers’ compensation immunity. McNair argued estoppel. The employer’s motion was granted and the order granting the summary judgment was affirmed on appeal.

The First District Court of Appeal began its analysis by recognizing the applicability of estoppel in workers’ compensation cases:

Florida courts have held that “an employer may be equitably estopped from raising a workers’ compensation exclusivity defense if the employer denies the employee’s claim by asserting that the injury did not occur in the course and scope of his or her employment.” Coastal Masonry, Inc. v. Gutierrez, 30 So. 3d 545, 547 (Fla. 3d DCA 2010) (citing Schroeder v. Peoplease Corp., 18 So. 3d 1165 (Fla. 1st DCA 2009)).

The court then proceeded to explain why estoppel did not apply in the case. It did so by distinguishing its facts from those in Byerley v. Citrus Publ’g, 725 So. 2d 1230 (Fla. 5th DCA 1999). It pointed out that Armstrong, the employer, asserted that “no work accident causing injury occurred at all,” id. at 610, while the employer in Byerley claimed that the “injury did not arise out [of] the course and scope of [Byerley’s] employment,” because it occurred after she “clocked out and had exited the building.” Id. at 1231.

After Byerley’s employer claimed that the accident did not happen in the course and scope of his employment, Byerley sued the employer in circuit court alleging negligence. The employer asserted that Byerley’s exclusive remedy was workers’ compensation. The trial court agreed, granting summary judgment in favor of the employer. Finding that the employer’s position created a Hobson’s choice for Byerley, the appellate court reversed the lower court’s ruling:

We think 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. This argument, if accepted, would eviscerate the Workers’ Compensation Act and allow employers to avoid all liability for employee job related injuries.

By making a representation of a material fact that is contrary to a later-asserted position, the employer in Byerley met the first prong of the equitable estoppel formula. This is not what happened in McNair. As explained by the court:

McNair’s claimed accident, if it happened as he alleged, certainly occurred in the course and scope of his employment. Armstrong’s claim was that no accident causing injury occurred at all. Either the factfinder would determine that the accident occurred, in which case it was indisputably within the course and scope of employment, or that the accident did not occur, in which case there was no compensable injury.

The McNair court was also guided by Coastal Masonry, Inc. v. Gutierrez, 30 So. 3d 545, 547 (Fla. 3d DCA 2010) (citing Schroeder v. Peoplease Corp., 18 So. 3d 1165 (Fla. 1st DCA 2009)). Bayardo Gutierrez (“Gutierrez”) filed a petition seeking workers’ compensation benefits from his employer, Coastal, for injuries sustained while lifting concrete blocks. In response to the petition for benefits, Coastal denied the claim in its entirety including that Gutierrez’s condition “is not the result of an injury by accident arising out of and in the course and scope of employment.” Specifically, the denial of benefits stated:

The carrier has denied the claim in its entirety. The claimant did not report the alleged injury to the employer in a timely manner, as required by F.S. 440.185(1). The 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. There is no accident or occupational disease. The condition complained of is not the result of an injury, as defined by F.S. 440.02(1). The claimant’s medical condition is the result of a pre-existing condition or disease. The claimant’s medical condition is personal, pre-existing and/or idiopathic in nature.

Following this denial, the claimant instituted a circuit court civil action against the employer sounding in negligence. On summary judgment, the trial court denied the employer’s workers’ compensation immunity affirmative defense. Finding that Coastal, the employer, “has taken inconsistent positions,” The First DCA affirmed the order.

The case law on the subject can be confusing. The denial language used by the employer in McNair is similar to the reasons stated in Byerley and Coastal Masonry. However, the results are very different. It appears that the courts dig behind the language to determine the actual reasons for the denials. Practitioners need to do the same before jumping to the conclusion that estoppel will be deemed.

Equitable estoppel arises infrequently in workers’ compensation cases. It is usually clear whether or not the claimed accident happened in the course and scope of employment, so employers rarely deny for that reason. Second, pursuing a civil remedy may not always be the wisest course of action to follow. In civil cases, the burden is on the plaintiff to prove negligence. In many workplace accidents, nobody is at fault. In workers’ compensation cases, fault does not have to be demonstrated; it’s a no-fault system. Finally, the quality, quantity, and timing of medical and wage loss benefits available through workers’ compensation sometimes surpass those available under the civil system.

The issues discussed in this blog can have substantial consequences. It is strongly recommended that advice of counsel be sought before the issues arise.

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