An employee cannot file a tort lawsuit against her employer until after it has been determined that she is not eligible for a workers’ compensation claim. And that compensability determination can only be made by an insurer or a compensation judge, a Florida appeals court has ruled.
In Steak ‘n Shake vs. Spears, Florida’s 5th District Court of Appeals overturned a Brevard County Circuit Court’s ruling in a case that involved a robbery of the restaurant and a server who said she was traumatized but not physically injured by the incident.
“We conclude that the structure and language of the workers compensation statutes require that a determination of compensability must first be made before resorting to tort lawsuits,” the appeals court panel wrote.
The circumstances of the claim were unusual and had never been addressed by Florida courts, including the 1st District Court of Appeals, which hears most workers’ compensation appeals, the 5th DCA judges noted. The National Council on Compensation Insurance this week included the case in its court case update.
It began in 2019 when Amber Nicole Spears was waiting tables at the restaurant. She was held at gunpoint and forced into a back room by the robber. She said in court filings that she suffered severe emotional distress from the incident. But, thinking that she would not be eligible to pursue a workers’ comp claim and benefits for a non-physical injury, she sued her employer in circuit court.
The trial court judge agreed and found that Spears’ trauma was not compensable under the state’s workers’ comp system. The judge allowed the tort suit to move forward.
But the 5th District appellate judges held that Florida law specifies who can make that determination.
“‘Compensable’ means a determination by a carrier or judge of compensation claims that a condition suffered by an employee results from an injury arising out of and in the course of employment,” the 5th DCA wrote, citing Florida Statute 440.093(1).
“It is a matter of due process as well because carriers are statutorily required to receive and evaluate claims in the first instance,” the court added. “Going directly to a Florida circuit court without allowing carriers to perform their statutory role is not what the workers compensation laws envisioned.”
If Spears had been a firefighter or first responder who had been held at gunpoint, it may have been obvious that she was eligible for workers’ compensation benefits. Florida law allows treatment and wage replacement for first responders who suffer from post-traumatic stress disorder after witnessing disturbing or grisly events. For most other employees, mental distress must accompany physical injury for it to be eligible for benefits.
Some states, including California and New York, allow PTSD workers’ comp coverage for most types of employees, not just first responders.
The 5th DCA remanded the Spears suit to the Brevard County circuit court to determine if Spears has filed a comp claim. If not, the carrier is entitled to entry of an order dismissing the tort case, the court noted. The opinion can be seen here.
In a Texas case ruling handed down the same day, that state’s Supreme Court found that Texas law is not as specific as Florida’s on who can decide compensability, the NCCI reported. In University of Texas Rio Grande Valley v. Oteka, the high court decided that the Texas Division of Workers’ Compensation does not always have exclusive jurisdiction to determine if an injury may be comp-eligible.
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