Inservices, Inc. v. Aguilera

• Decision Date: 26 December 2002
• Docket Number: No. 3D01-867.,3D01-867.
• Parties: INSERVICES, INC., f/k/a Managed Care USA Services, Inc., a North Carolina corporation, and Mippy Heath, individually, Appellants, v. Rodrigo AGUILERA, and Patricia Lower Aguilera, his wife, Appellees.
• Court: Florida District Court of Appeals

837 So.2d 464

INSERVICES, INC., f/k/a Managed Care USA Services, Inc., a North Carolina corporation, and Mippy Heath, individually, Appellants, v. Rodrigo AGUILERA, and Patricia Lower Aguilera, his wife, Appellees.

No. 3D01-867.

District Court of Appeal of Florida, Third District.

December 26, 2002.

Certification Denied February 12, 2003.

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.

Appellant, Inservices, Inc., f/k/a Managed Care USA 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. After examination by two doctors who both recommended that Aguilera not return to work, Aguilera's workers' compensation attorney requested examination and 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 his workers' compensation benefits were being terminated. Inservices denied the emergency request for medical care 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. The results of a retrograde urethogram revealed Aguilera had a hole in his bladder. A new case manager was assigned to Aguilera's case, defendant/appellee Mippy Heath ("Heath"), however, Heath rejected Aguilera's request that a general surgeon perform 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 infliction of emotional distress against Inservices and Heath, and seeking a declaration that the workers' compensation exclusivity rule is unconstitutional to 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 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." Old Republic Ins. Co. v. Whitworth, 442 So.2d at 1079. 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 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 of its claims handling. Sibley v. Adjustco, Inc., 596 So.2d 1048 (Fla.1992) (adjuster who fraudulently edited the statement of a claimant which results in 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 appointments with physicians, wrongfully attempted to deprive or ignored his request for medical treatment and insisted upon tests to evaluate his medical condition which were contradicted by his medical condition.² Aguilera's primary contention is that the exclusivity provisions of the workers' compensation statutes do not bar his intentional tort claim because the defendants' conduct was outrageous and resulted in injuries separate and distinct from the work related injury³. We disagree. In order for an independent tort to exist, there must be facts that are distinct from a breach of contract. See HTP, Ltd. v. Lineas Aereas Costarricenses S.A., 685 So.2d 1238 (Fla.1996)

; Invo Florida, Inc. v. Somerset Venturer, Inc., 751 So.2d 1263 (Fla. 3d DCA 2000); Here, all of Aguilera's allegations deal with the manner in which his claim was handled by the defendants pursuant to the workers' compensation insurance contract. Since all of the allegations relate to the defendants alleged breach of contractual obligations under the workers' compensation policy, no independent acts have been alleged and thus there is no independent tort. See Sullivan v. Liberty Mut. Ins. Co., 367 So.2d at 658. Aguilera's injuries arising from any delays in medical treatment were incidental to his original injury and compensable by his employer's compensation carrier.⁴

See Old Republic Ins. Co. v. Whitworth, 442 So.2d at 1079.

In conclusion, we find the allegations in the present case are insufficient to come within any exception to the statutory immunity provided by section 440.11, Florida Statutes (2000). See Sheraton Key Largo v. Roca, 710 So.2d at 1016

; Old Republic Ins. Co. v. Whitworth, 442 So.2d at 1078; Sullivan v. Liberty Mutual Insurance Co., 367 So.2d at 658. Accordingly, the trial court erred in finding the cause of action was not barred by the Act, and the case is hereby reversed and remanded with instructions to enter a final order dismissing the complaint.

Reversed and remanded with instructions.

GERSTEN, J., and NESBITT, Senior Judge, concur.

SHEVIN, J., dissenting in part, concurring in part.

I dissent from the opinion granting rehearing.

As a matter of law, affirmance is required in this case as to the intentional infliction of emotional distress claim.⁵ The workers' compensation immunity carrier has clearly committed an intentional tort, which brings this case outside the ambit of the traditional workers' compensation immunity, and renders the carrier liable in an intentional tort action. I would affirm the denial of the motion to dismiss the Aguileras's amended complaint on the intentional infliction of emotional distress count.

The majority opinion focuses on the damages suffered and concludes they are ...