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In April 1999, Rodrigo Aguilera suffered a punctured bladder during an accident that occurred while he was working at a Publix supermarket near Miami. Because of delays by his employer’s workers’ compensation insurer, Aguilera claimed, he had to wait 10 months for emergency surgery for the work-related injury. During those 10 months, Aguilera said, the carrier, Inservices Inc., aggravated his medical condition and caused him emotional distress. Among other things, it made him undergo painful testing that was not medically appropriate for his condition, he said. By the time the Charlotte, N.C.-based carrier granted authorization for the operation, Aguilera had seen six doctors and had been urinating blood and feces for months. The Florida Supreme Court heard arguments on Wednesday in Aguilera’s case. The key issue is whether injured workers can sue their employers or workers’ comp carriers for egregious conduct — despite a Florida statute establishing the administrative workers’ comp system as the exclusive remedy for work-related injury claims. During the arguments, the justices repeatedly raised concerns about the fairness of barring suits no matter how egregious the insurer’s conduct. Although the Florida Supreme Court has previously considered many cases on whether an injured worker can sue his or her employer, this is one of the first cases in which the court is considering the degree of immunity enjoyed by a workers’ comp insurance carrier, said Josh Lerner, the attorney for Inservices. In 1992, the Florida Supreme Court held in Sibley v. Adjusto that the plaintiff could sue a carrier for an independent tort because the claims adjuster had edited a patient’s statement to leave out all of the circumstances that led to the plaintiff’s heart attack at work in order to deny him certain benefits. In that decision, the court said that the Workers’ Compensation Act was not the worker’s sole remedy and that the immunity clause did not bar the worker from recovering damages for intentional tortious conduct. Claimant attorneys say injured workers face major problems in getting adequate benefits and medical care through the administrative workers’ comp system, and that they are regularly stonewalled and mistreated by carriers. They argue that the problems are likely to get worse under the dramatic workers’ comp system changes enacted this year by the Florida Legislature. But business groups and the insurance industry say that many workers, lawyers and medical providers have abused the workers’ comp system, and that such abuse made tough reforms necessary. They insist that injured workers will receive improved benefits and care through the revamped workers’ comp system. In July 2000, Aguilera sued Inservices in Miami-Dade Circuit Court for intentional infliction of emotional distress. In December 2002, a 3rd District Court of Appeal panel, after initially ruling to allow him to sue, reversed itself and ruled that his lawsuit was barred by the state Workers’ Compensation Act. During oral arguments before the Florida Supreme Court, Aguilera’s attorney, Miami solo practitioner Lauri Ross, argued that Inservices’ conduct throughout Aguilera’s treatment was so outrageous that it qualified as an exception to the immunity granted to carriers under Florida’s Workers’ Compensation Act. But Inservices’ attorney, Joshua Lerner, argued that his client was immune from all lawsuits pertaining to the carrier’s conduct while handling the claim. The Workers’ Compensation Act provided Aguilera with all the remedy he was entitled to under Florida law, said Lerner, a partner at Rumberger Kirk & Caldwell in Miami. Ross, a Miami solo practitioner who handled the appeal with co-counsel John Seligman of Friedman and Friedman in Coral Gables, said Inservices denied her client medical care recommended by its own doctors. On top of that, she said, one of the company’s claims adjusters showed up at Aguilera’s urology appointment and suggested that he lie to his lawyer and tell him she hadn’t been there. These facts, she argued, clearly supported a tort claim for intentional infliction of emotional distress. “There he is with a hole in his bladder with feces coming through it and they canceled his prescription,” Ross said. But Lerner argued that the purpose of the Workers’ Compensation Act was to give workers injured on the job immediate care at low cost without having to prove fault. In return, the employer and workers’ compensation carriers were immune from being sued for claims such as breach of contract and negligence. Because of the benefits the system provides injured workers, the immunity granted to the employer and carrier must be absolute, Lerner alleged in his brief to the court. MURDER IMMUNIZED? Throughout the arguments, however, the justices bombarded Lerner with hypothetical situations to clarify just how much immunity workers’ compensation carriers were entitled to under Florida law. “Let’s suppose two adjusters get together and say, ‘This claimant is the biggest pain in the butt we ever had and we’re gonna fix him,’ ” Chief Justice Harry Lee Anstead said. “ Over a period of a year, they make this person’s life miserable. You don’t agree that conduct like that would create civil liability outside the bounds of the workers’ compensation statute?” Lerner replied that Florida Statute 440.11(4) says “the liability of a carrier shall be exclusive and in place of all other liability.” The Workers’ Compensation Act already provides its own remedies, Lerner said. Under the act, he noted, lying to a claimant to deny benefits is a third-degree felony; the claimant can file a complaint with the state Department of Insurance to have the carrier’s license suspended or revoked. Claimants also have the right to file emergency petitions in a court of compensation claims to dispute a denial of medical care or tests that a claimant believes is harmful. All problems of delays in payment or care can be resolved by seeking relief from a judge of compensation claims, Lerner said. But Justice Kenneth Bell took the hypothetical scenario a step further. “If we accept your argument,” Bell said, “the claims adjuster could take a gun and kill someone and the person is immune from prosecution because he’s a claims adjuster. Is that your argument?” “That’s taking it to the extreme,” Lerner said. “But that’s the plain language” of the statute, Bell replied. Aguilera had filed suit against Inservices for bad faith, breach of contract, declaratory judgment and intentional infliction of emotional distress. Inservices responded with a motion to dismiss the claim based on the immunity provided by the Workers’ Compensation Act. But Miami-Dade Circuit Judge Barbara Levenson denied Inservices’ motion to dismiss, ruling that Aguilera was allowed to proceed based on case law that provided an exception to carrier immunity when the carrier engaged in conduct that was “substantially certain to result in injury or death.” On appeal, the 3rd DCA ruled 2-1 that Aguilera’s claims of bad faith, breach of contract and declaratory judgment should be dismissed based on carrier immunity. But the court upheld Aguilera’s claim for intentional infliction of emotional distress. “Any alternative holding would require us to adopt the defendant’s argument that once an employee files a claim, the carrier is free to proceed and behave in any manner it desires,” wrote 3rd DCA Judge Robert Shevin, who was joined by Judge Joseph Nesbitt. In dissent, Judge David Gersten argued that since all of Aguilera’s allegations were related to how the insurance company handled his claim, his exclusive remedy was through the provisions of the Workers’ Compensation Act. But in December 2002, on a motion for rehearing, the three-judge panel reversed itself. Judge Nesbitt joined Gersten in granting Inservices’ motion for dismissal on the intentional infliction of emotional distress claim. Shevin dissented. “We empathize with Aguilera’s plight in resolving his medical problems,” Gersten wrote for the majority. “However, established precedent and the plain language of the Workers’ Compensation Act require that we reverse.”

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