Aguilera v. Inservices, Inc.

• Decision Date: 16 June 2005
• Docket Number: No. SC03-368.,SC03-368.
• Citation: 905 So.2d 84
• Parties: Rodrigo AGUILERA, et ux., Petitioners, v. INSERVICES, INC., etc., et al., Respondents.
• Court: Florida Supreme Court

905 So.2d 84

Rodrigo AGUILERA, et ux., Petitioners, v. INSERVICES, INC., etc., et al., Respondents.

No. SC03-368.

Supreme Court of Florida.

June 16, 2005.

Gary A. Friedman of Friedman & Friedman, Coral Gables, FL, and Lauri Waldman Ross of Lauri Waldman Ross, P.A., Miami, FL, for Petitioners.

Joshua D. Lerner and Rebecca A. Brownell of Rumberger, Kirk & Caldwell, Miami, FL, for Respondents.

Barbara B. Wagner of Wagenheim & Wagner, P.A., Fort Lauderdale, FL, for Amicus Curiae Florida Workers' Advocates.

Barbara Green of Barbara Green, P.A., Coral Gables, FL, and Diran V. Seropian of Caruso & Burlington, P.A., West Palm Beach, FL, for Amicus Curiae The Academy of Florida Trial Lawyers.

PER CURIAM.

We have for review Inservices, Inc. v. Aguilera, 837 So.2d 464 (Fla. 3d DCA 2002), which expressly and directly conflicts with and also misapplies our decision in Sibley v. Adjustco, Inc., 596 So.2d 1048 (Fla.1992).¹ We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. See art. V, § 3(b)(3), Fla. Const.; see also Knowles v. State, 848 So.2d 1055, 1056 (Fla.2003)

(accepting jurisdiction based on conflict created by misapplication of decisional law); Robertson v. State, 829 So.2d 901, 904 (Fla.2002) (stating that misapplication of decisional law creates conflict jurisdiction); Acensio v. State, 497 So.2d 640, 641 (Fla.1986) (accepting jurisdiction based on conflict created by misapplication of decisional law). We disapprove the decision under review for the reasons provided in our analysis below.

FACTS AND PROCEDURAL HISTORY

The present dispute arises from a decision of the district court of appeal which orders the trial court to dismiss this action based upon a workers' compensation insurance carrier's motion to dismiss asserting immunity under the Workers' Compensation Law, chapter 440 of the Florida Statutes (2000). See Inservices, 837 So.2d at 465

. When presented with the insurance carrier's motion to dismiss, the trial court properly denied the motion as it was required to accept the factual allegations of the complaint as true and to consider those allegations and any inferences to be drawn therefrom in the light most favorable to Aguilera, the employee. See Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734-35 (Fla.2002). Accepting the employee's amended complaint as true, on April 21, 1999, Aguilera was injured in a warehouse when an electric fork lift operated by another employee struck him and pushed him against a pallet. Aguilera suffered immediate injuries to his back and right leg and he was transported to a local emergency room. The medical records reflect that, at the time, testing revealed that Aguilera had blood in his urine. He was examined by an emergency room physician and provided a prescription for medication.

Immediately following these injuries, Aguilera received medical care that was supervised and controlled by Managed Care USA Services, Inc., now known as Inservices, Inc., the workers' compensation insurance carrier, and its employees and agents. Pursuant to the insurance carrier's instruction, Aguilera was referred to a workers' compensation clinic and, on May 12, 1999, was discharged to return to limited work with restrictions.

Subsequently, Aguilera began to complain of kidney and bladder pain. On May 24, 1999, after examination by two physicians who both were of the medical opinion that he should not return to work, Aguilera's workers' compensation counsel filed an initial request for care, requesting authorization for Aguilera to be examined and treated by a board-certified urologist. The insurance carrier denied authorization for examination or treatment by a urologist, asserting that Aguilera's injury was not work-related. On June 17, 1999, the insurance carrier was again notified that urological care was needed now on an emergency basis because Aguilera's urine had allegedly begun to smell like feces. On June 21, 1999, Aguilera was advised that his workers' compensation benefits were being terminated as of July 9, 1999, notwithstanding the report of two doctors, including the opinion of the insurance carrier's own doctor, that he should not return to work.

On June 25, 1999, the insurance carrier intervened and actually blocked Aguilera's receipt of medication which had been prescribed for him by the hospital emergency physician for his urinary condition. Allegations of this type of conduct of intervening and actually blocking receipt of needed prescribed medication cannot be minimized. On June 30, 1999, the insurance carrier again denied Aguilera's emergency request for the care of a urologist on the asserted basis that it was not medically necessary. At this time, the insurance carrier actually had within its possession medical documentation which both demonstrated the falsity of its position and clearly established the medical necessity for the care.

On July 7, 1999, the insurance carrier was advised by Aguilera's treating physician that his need for a urological consultation had become urgent and that his condition was deteriorating. On July 9, 1999, the insurance carrier's own doctor, Alan Dansky, issued Aguilera prescriptions for various urinary tests, and the appointments were in fact scheduled by the insurance carrier's nurse. However, on July 29, 1999, one of the insurance carrier's adjusters again intervened and simply unilaterally canceled some of this medical testing. Testing that was ultimately performed, specifically a retrograde urethrogram, revealed that Aguilera had a fistula, or a hole in his bladder.

On August 6, 1999, Mippy Heath commenced service as Aguilera's new case manager. Heath was specifically advised by Aguilera's attorney that there should be no direct contact with Aguilera, and the company representative agreed that no on-site intervention or case service would occur and no interference with Aguilera's care would be attempted.

On August 19, 1999, Aguilera's counsel alerted the insurance carrier that the injured employee was now in need of emergency surgery for the fistula. Heath refused authorization for the emergency surgery and insisted on a second opinion. On August 25, 1999, notwithstanding the specific agreement with Aguilera's attorney to the contrary, Heath secretly appeared at the physician's office for Aguilera's appointment with Dr. Campeatore, an IME (independent medical examiner) urologist. Heath again intervened and then urged Aguilera to lie to his counsel and to deceive his attorney by advising that she had not appeared at the doctor's office contrary to the true fact. This egregious conduct is not just a "common or ordinary part" of the process. Subsequently, Heath insisted that Aguilera submit to the administration of invasive tests that were not only painful to Aguilera but also contraindicated by his then-present medical condition. The insurance carrier then proceeded to use Aguilera's refusal to submit to these painful contraindicated testing procedures as a basis to justify a refusal and denial of his then needed critical, surgical treatment.

By November 4, 1999, Heath, the case manager, and a nurse practitioner also employed by the insurance carrier had changed positions and agreed that Aguilera needed immediate hospitalization for surgery. However, the insurance carrier's adjuster again intervened and overruled the decision of medical personnel simply because he wanted a second opinion from a general surgeon. Notwithstanding this intervention, the insurance carrier did not follow its own position and authorize Aguilera to consult with a general surgeon, but instead again changed course and sent Aguilera to a gastroenterologist. At this point in time, Aguilera had allegedly been urinating feces and blood for over six months.

Aguilera's ultimate surgery, the need for which had been diagnosed as an emergency as early as June of 1999, was not finally authorized or approved until March 22, 2000. By this time, according to the allegations, Aguilera had been urinating feces and blood for over ten months. At the insurance carrier's insistence, Aguilera had been forced to be seen by no fewer than six doctors in addition to his initial treating physician. Each of the individuals who examined Aguilera concluded that his physical injuries were in fact related to the initial accident and that his condition as a result required urgent surgical treatment.²

The amended complaint set forth causes of action for common law bad faith, intentional infliction of emotional distress, breach of contract, and declaratory relief. The insurance carrier responded to these allegations with a motion to dismiss the complaint, asserting that workers' compensation immunity was applicable to bar all claims, both those initially resulting from the workplace injury and those alleged to have been independently and separately generated by the process. The trial court denied the insurance carrier's motion to dismiss, concluding that the intentional, outrageous conduct on the part of the insurance carrier had escalated to the point that a viable cause of action based in tort had been presented. See Inservices, 837 So.2d at 465

.

The Third District recognized below that the workers' compensation scheme does not immunize an insurance carrier from wrongdoing that occurs independently of its claims handling. See id. at 466. The Third District incorrectly determined, however, that the allegations in the instant action merely concerned the manner in which Aguilera's claim was processed by the insurance carrier pursuant to the workers' compensation insurance contract, and, therefore, no independent tortious acts could ever be sufficiently alleged because they touched upon the claim process. See id. at 468. The court concluded, therefore, that because Aguilera's allegations were insufficient to establish any exception to the doctrine of statutory immunity provided by section 440.11 of the Florida Statutes (2000...