Elliott v. Dugger, 90-1721

• Decision Date: 13 May 1991
• Docket Number: No. 90-1721,90-1721
• Citation: 579 So.2d 827
• Parties: Robert C. ELLIOTT and Carol K. Elliott, his wife, Appellants, v. Richard L. DUGGER, as Secretary of the State of Florida Department of Corrections, Appellee. 579 So.2d 827, 16 Fla. L. Week. D1354
• Court: Florida District Court of Appeals

Page 827

579 So.2d 827

Robert C. ELLIOTT and Carol K. Elliott, his wife, Appellants, v. Richard L. DUGGER, as Secretary of the State of Florida

Department of Corrections, Appellee.

No. 90-1721.

579 So.2d 827, 16 Fla. L. Week. D1354

District Court of Appeal of Florida,

First District.

May 13, 1991.

Rehearing Denied June 24, 1991.

Terence M. Brown, P.A., Starke, and P. Scott Russell, IV, Gentry and Phillips, P.A., Jacksonville, for appellants.

Robert A. Butterworth, Atty. Gen., Cecilia Bradley, Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Judge.

The Elliotts appeal a final summary judgment entered in favor of Dugger. The trial court ruled that their claims for Robert Elliott's work-related injuries based upon simple negligence, intentional tort, and the gross negligence of a coemployee, were either barred by section 440.11, Florida Statutes (1985), which provides that workers' compensation is the exclusive remedy for workplace injury, or the sovereign immunity provisions of section 768.28(9)(a), Florida Statutes (1985). We affirm the trial court's final summary judgment in all respects.

On or about June 18, 1986, Elliott, while on duty as a correctional officer at the reception and medical center in Lake Butler, Florida, unknowingly ingested blood serum contaminated with the AIDS virus, which was placed in his drink by Inmate Grimmer. Inmate Grimmer had obtained the serum from Inmate Dunn, who worked at the medical laboratory at Lake Butler. Since then, Elliott has been repeatedly tested for AIDS, and he has tested negative. Elliott has continued to work for the Department of Corrections (DOC), although he has since been reassigned to a medical center in Jacksonville. After the incident, he suffered mental anguish, anxiety-related nightmares, depression, insomnia, fatigue and crying spells.

Thereafter, Elliott filed a workers' compensation notice of injury, which he mistakenly assumed constituted a formal claim for benefits. The carrier responded, by letter, that benefits were not due. The letter notes claimant's return to work and the absence of any evidence relating medical problems to the incident. Significantly, the letter does not deny compensability of the incident. However, given the fact that the letter does deny benefits, claimant understandably thought that his claim had been denied. ¹

Ultimately, the Elliotts sued Prison Health Services, Inc., which was responsible for the supervision and operation of the prison hospital and lab, and its employees, the inmates. They also sued Dugger, as Secretary of DOC, and Harry C. Winslow, the laboratory supervisor, who was alleged to be an employee of the DOC or Prison Health Services, or both. The Elliotts contend that Winslow knowingly and wrongfully used inmates in the laboratory, particularly Inmate Dunn, and then hid this fact from inspectors. As a result, Dunn gained access to the AIDS contaminated serum and took it from the hospital lab where it found its way into Elliott's drink.

At some point, claimant became aware of the need to file a formal workers' compensation claim, and he did so. In his claim, Elliott sought temporary total disability benefits for July 6, 1986, and from July 9, through July 26, 1986; past medical expenses in the nature of H.T.L.V. blood testing; further medical care in the nature of psychological or psychiatric counseling; and fees and costs. The claim was defended on the grounds that, although there was, admittedly, an accident arising out of and sustained within the course and scope of claimant's employment, there was no compensable injury arising out of the accident, and thus the benefits claimed were not due. The pertinent provisions of the order of the deputy commissioner (now judge of compensation claims) follow:

3. The nature of the accident was that blood serum from an AIDS patient was put into Claimant's coffee by an inmate of the prison, that Claimant drank same, and that three days later Claimant was informed of these facts.

4. Employer is obligated under the Act to furnish the Claimant with the H.T.L.V. blood testing received. Such said blood testing as Claimant received constituted reasonable and necessary medical care for the accident sustained herein. Employer should forthwith pay (or reimburse the group carrier for paying for) such care, as their interests shall appear and in accordance with the Medical and Surgical Fee Schedule.

* * * * * *

6. There is insufficient competent substantial evidence in the record to permit a finding that the accident caused any disability, whether psychiatric, psychological, organic, or otherwise or some combination thereof. Even if the accident aggravated Claimant's preexisting high blood pressure to some degree, this was not shown to have caused any increased impairment of [sic] disability as those terms are understood under the Act. Claimant's lay testimony is not sufficient proof of the medical issues involved.

7. If claimant was promised administrative leave time and then improperly not given it, such is a matter within the jurisdiction of civil service or union grievance process lines to correct but is beyond the jurisdiction of the Workers' Compensation Act.

8. Based upon the foregoing, the claim for temporary total disability benefits must be denied.

9. Likewise there is insufficient competent substantial evidence in the record to permit a finding either (A) that Claimant presently needs psychiatric or psychological counseling or (B) that such need, if any, is compensibly related to the accident. Thus the claim for further medical care in the nature of psychiatric or psychological counseling must be denied at this time.

Dugger again filed a motion for summary judgment, contending that this civil suit is barred under section 440.11, Florida Statutes. The trial court entered an order stating:

The finding of the commissioner was that there was an accident arising out of and sustained within the course and scope of the claimant's employment. The commissioner ordered the employer to pay for medical expenses incurred in connection with the job-related incident. The commissioner denied further medical care in the nature of psychiatric or psychological counseling due to lack of competent substantial evidence of record. The commissioner did not find that Elliott had no right to claim benefits because the injury was not a covered injury nor were workers' compensation benefits denied on the basis that Elliott's alleged injury was not encompassed within the Act or on the basis that he was injured under other situations not covered by the Act. The above factors were stated as the reason the previous summary judgment was reversed.

The plaintiff has also alleged that a fellow state employee, Harry C. Winslow, was guilty of gross negligence. Harry Winslow was the laboratory supervisor who allegedly should have kept the infected serum out of the hands of the prison inmates. Even if the plaintiff were to prove...