01-0867 INSERVICES V. AGUILERA

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 01-0867 INSERVICES V. AGUILERA

Case Date: 12/26/2002

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D., 2002

INSERVICES, INC., f/k/a MANAGED CARE USA SERVICES, INC., a North Carolina corporation, ** and MIPPY HEATH, individually, ** Appellants, ** vs. ** RODRIGO AGUILERA, and PATRICIA AGUILERA, his wife, Appellees. **

**

CASE NO. 3D01-867 LOWER ** TRIBUNAL NO. 00-15118

Opinion filed December 26, 2002. An Appeal from the Circuit Court for Miami-Dade County, Barbara S. Levenson, Judge. Rumberger, Kirk & Caldwell, and Joshua D. Lerner, and David J. Pyper, for appellants. Friedman & Friedman; Lauri Waldman Ross, for appellees.

Before GERSTEN, and SHEVIN, JJ., and NESBITT, Senior Judge. ON MOTION FOR REHEARING PER CURIAM. The motion for rehearing is granted. We withdraw the

opinion issued October 31, 2001, and substitute the following

opinion. Appellants, Inservices, Inc., f/k/a Managed Care USA

Services, Inc., and Mippy Heath (hereafter collectively referred to as "defendants"), appeal the denial of their motion to

dismiss claiming they are entitled to workers' compensation immunity. We agree and reverse. Inservices, Inc., f/k/a Managed Care USA

Appellant,

Services, Inc. ("Inservices") provided workers' compensation benefits to the employer of appellee Rodrigo Aguilera

("Aguilera").

Aguilera was injured in a work-related accident

when he was struck by an electric fork lift in April of 1999. Inservices referred Aguilera to a workers' compensation clinic where he was treated and eventually discharged to return to work with restrictions. A few weeks later, Aguilera began to complain of kidney and bladder pain. that After examination not by two to doctors work, who both

recommended workers'

Aguilera

return

Aguilera's and

compensation

attorney

requested

examination

treatment by a board certified urologist.

Inservices denied the

request claiming the injury was not work-related. In June of 1999, Aguilera notified Inservices that he was passing feces through his urine and was in need of immediate urological care. Three days later, Aguilera was advised that

2

his

workers'

compensation the

benefits

were

being for

terminated. medical care

Inservices

denied

emergency

request

claiming it was not medically necessary. Several weeks later, Aguilera's treating physician again advised Inservices that the need for urological care was urgent and that his condition had deteriorated. Aguilera The a results hole in of a

retrograde bladder.

urethogram

revealed

had

his

A new case manager was assigned to Aguilera's case, Mippy Heath that ("Heath"), a general however, surgeon Heath perform

defendant/appellee rejected Aguilera's

request

immediate emergency surgery on his fistula.

She insisted on a

second opinion and the administration of tests which, according to Aguilera, were painful and contraindicated by his medical condition. Heath thereafter sent Aguilera to a

gastroenterologist. After seeing six doctors in addition to his initial treating physician, and after urinating feces and blood for over ten months, Aguilera's surgery was authorized on March 22, 2000. Aguilera filed suit against the defendants, seeking damages for common law bad faith and breach of contract against Inservices, for intentional and infliction Heath, and of emotional a distress against that the

Inservices

seeking

declaration

workers' compensation exclusivity rule is unconstitutional to

3

the extent it eliminates claims for subsequent malfeasance of a carrier. The defendants moved to dismiss on various grounds including the defense of workers' compensation immunity under the Workers' Compensation Act (the "Act"). The trial court denied the motion

finding that intentional, outrageous conduct on the part of the defendants escalated the workers' compensation claim into a tort action. We empathize with Aguilera's plight in resolving his medical problems. However, established precedent and the plain language

of the Workers' Compensation Act requires that we reverse. This Court previously established that the test to determine if workers' compensation bars a tort action, is whether the injury for which a plaintiff seeks recovery is covered by the Workers' Compensation Act. See Old Republic Ins. Co. v.

Whitworth, 442 So. 2d 1078 (Fla. 3d DCA 1983).

Simply stated,

if the injury is covered by the Act, a separate tort action in circuit court is barred. Thus, in Old Republic Ins. Co. v. Whitworth, 442 So. 2d at 1078, we dismissed the plaintiff's tort claim because workers' compensation provided a remedy for the allegations of delayed payment and bad faith. In so doing, we specified that: "[A]

compensation claimant cannot avoid the exclusivity of the Act

4

and

transform

a

delay

in

payments

into

an

actionable

tort

cognizable in the Circuit Court simply by calling that delay outrageous, fraudulent, deceitful or an intentional infliction of emotional distress." 442 So. 2d at 1079. Old Republic Ins. Co. v. Whitworth,

See also Sheraton Key Largo v. Roca, 710

So. 2d 1016 (Fla. 3d DCA 1998)(workers' compensation immunizes a carrier from a tort action based on alternative allegations of outrageous, fraudulent and deceitful conduct or for intentional infliction of emotional distress committed while handling a claim); Montes de Oca v. Orkin Exterminating Co., 692 So. 2d 257 (Fla. 3d DCA 1997)(allegations of delay, outrageous misconduct, and intentional infliction of emotional distress in handling claim, fall within exclusive jurisdiction of workers'

compensation judge). We further noted the history and objectives of the workers' compensation laws, and expressed our concerns that "if delay in providing services could become the subject of an independent suit, the legislatively designed exclusivity of the act would be destroyed." Old Republic Ins. Co. v. Whitworth, 442 So. 2d at

1079 (citing Sullivan v. Liberty Mut. Ins. Co., 367 So. 2d 658 (Fla. 4th DCA 1979), cert. denied, 378 So. 2d 350 (Fla. 1979)). The legislative intent expressed in the workers' compensation law is that a claimant's exclusive remedy for misconduct in the

5

rendition of medical care lies solely with the commission, and not through independent third party court actions.1 This is not to say that a compensation carrier is immune from all intentional torts. The workers' compensation scheme

does not immunize a compensation carrier from wrongdoing which occurs independently Inc., 596 of So. its 2d claims 1048 handling. 1992) Sibley (adjuster v. who

Adjustco,

(Fla.

fraudulently edited the statement of a claimant which results in

As noted in Sullivan v. Liberty Mut. Ins. Co., 367 So. 2d at 660 (quoting Noe v. Travelers Ins. Co., 342 P. 2d 976 (Cal. App. 1st Dist. 1959), if a carrier is liable for all intentional torts which occur after a workplace injury, the present workers' compensation system would be effectively eliminated: "if delay in medical service attributable to a carrier could give rise to independent third party court actions, the system of workmen's compensation could be subjected to a process of partial disintegration. In the practical operation of the plan, minor delays in getting medical service, such as for a few days or even a few hours, caused by a carrier, could become the bases of independent suits, and these could be many and manifold indeed. The uniform and exclusive application of the law would become honeycombed with independent and conflicting rulings of the courts. The objective of the Legislature and the whole pattern of workmen's compensation could thereby be partially nullified." This reasoning is further supported not only by Florida case law, but by cases from numerous other jurisdictions which have addressed allegations of flagrant interference by a carrier in rendition of medical care, and which have all concluded that the worker's sole remedy lay in compensation proceedings under the Act. See Old Republic Ins. Co. v. Whitworth, 442 So. 2d at 1078, and cases cited therein. 6

1

the

denial

of

benefits

constitutes

an

intentional

act

independent of the handling of a workers' compensation claim); cf. Associated Indus. of Fla. Prop. & Cas. Trust v. Smith, 633 So. 2d 543 (Fla. 5th DCA 1994) (it is not an independent tort for a workers' compensation carrier to withdraw benefits, as a wrongful termination can be remedied under the statute). Thus

once a trial court determines a plaintiff does have a remedy under the Workers' Compensation Act, the only remaining issue to be considered prior to dismissal is whether the plaintiff's allegations involve wrongdoing independent of the workers

compensation claim. Aguilera does not argue that he is without remedies under the Act. And we note the Act does contain provisions addressing

his allegations that the defendants lied to him concerning available benefits, refused to schedule to and appointments or ignored tests with his to

physicians, request for

wrongfully medical

attempted

deprive insisted

treatment

upon

evaluate his medical condition which were contradicted by his medical condition.2 Aguilera's primary contention is that the

If a carrier "lies" regarding available benefits, such statements constitute a criminal offense and subject the carrier to penalties under section 440.105, Florida Statutes (2000). The Department of Insurance is authorized to revoke or suspend the authority of a workers' compensation carrier for violation of Section 440.105. See

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