           Case: 13-12829   Date Filed: 11/19/2013   Page: 1 of 27


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12829
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:12-cv-23734-JEM


ELIZABETH PICON,

                                                            Plaintiff-Appellant,

                                  versus

GALLAGHER BASSETT SERVICES, INC.,
a foreign corporation for profit,

                                                          Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (November 19, 2013)

Before HULL, MARTIN and FAY, Circuit Judges.

PER CURIAM:
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      In this diversity case, Plaintiff-appellant Elizabeth Picon, brings a civil

negligence action against her former employer, defendant-appellee Gallagher

Bassett Services, Inc. This appeal involves whether Florida’s workers’

compensation law bars Picon’s tort action against her employer. After careful

review, we conclude that the district court erred in granting summary judgment to

the employer and reverse and remand for further proceedings consistent with this

opinion.

                         I. FACTUAL BACKGROUND

      As explained later, Florida case law provides that, in certain circumstances,

an employer, when sued by an injured employee, may be estopped from asserting

the affirmative defense of workers’ compensation exclusivity. Because the central

issue here is estoppel, we review what happened before the employee brought this

tort lawsuit against her former employer.

A.    Picon’s September 2011 Right Shoulder Injury

      Plaintiff Elizabeth Picon (“Picon”) worked for defendant Gallagher Bassett

Services, Inc. (“Gallagher”) from December 31, 1991 until September 25, 2012. In

September 2011, Picon first noticed pain in her right shoulder. The condition

became worse, resulting in a loss of motion. By February 2, 2012, Picon

considered the shoulder pain debilitating. Picon went to a doctor who diagnosed

Picon’s problem as tendonitis and informed Picon that the condition resulted from


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“working on the computer at her desk.” Another doctor, who evaluated Picon

several months later, believed that Picon’s shoulder pain resulted from “repetitive

use of a mouse and the computer.”

B.    Picon’s February 2012 Workers’ Compensation Claim

      Gallagher had a workers’ compensation policy that, pursuant to Florida

workers’ compensation law, covered bodily injury to an employee as a result of

injuries or disease arising out of work performed in the course and scope of

employment. On February 3, 2012, Picon and Gallagher reported her shoulder

pain to Gallagher’s workers’ compensation insurance carrier (the “insurer”).

Gallagher’s insurer began paying for Picon’s medical treatment.

C.    Insurer Paid Medical Benefits from February to August 2012

      Gallagher referred Picon to Concentra, a physical therapy clinic. Picon

attended approximately 20 physical therapy sessions. This treatment did not

alleviate Picon’s pain. On March 7, 2012, Picon underwent an MRI and saw an

orthopedist, Dr. Eliot Lang who diagnosed Picon as suffering from right shoulder

adhesive capsulitis. Dr. Lang gave Picon a cortisone injection in the right shoulder

and referred Picon to a surgeon, Dr. David Font-Rodriguez.

      Picon saw Dr. Font-Rodriguez on June 12, 2012 and again three weeks later.

Dr. Font-Rodriguez agreed with Dr. Lang’s diagnosis of right shoulder adhesive

capsulitis, which he called “frozen shoulder.” Dr. Font-Rodriguez discussed with


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Picon “[o]perative and nonoperative treatment options . . . along with risks and

benefits of each choice, and realistic expectations of each.” Dr. Font-Rodriguez’s

notes stated: (1) “[Picon] will proceed with surgery as soon as she is medically

cleared, and approved by the w/c carrier;” and (2) “the carrier is asking her

Rheumatologist if her condition is preexisting or related to a rheumatologic

problem, clearly which it is not.”

       Dr. Font-Rodriguez completed a “Florida Workers’ Compensation Uniform

Medical Treatment/Status Reporting Form,” but did not answer the specific

questions about whether Picon’s shoulder injury was work-related and whether

there was more than one contributing cause of the injury. 1 Dr. Font-Rodriguez did

write “needs surgery ASAP! . . . medication . . . no use of right arm (light duty) . . .

no use of right arm . . . no repetitive use . . . no longer hours at work . . . no

driving.”

       On July 25, 2012, Dr. Font-Rodriguez did send to Gallagher’s senior claims

representative, Jennifer Roth, a document stating: “see 7/5/12 Adhesive capsulitis

[a]s a condition is not caused by Diabetes, nor Systemic Lupus Erythematosus.

Most often it is secondary to trauma to affected area (injury, surgery, etc.)

sometimes its idiopathic in origin (of unknown etiology).”
       1
        For example, the unanswered question ten was:
       10. Injury/Illness for which treatment is sought is:
              a) NOT WORK RELATED b) WORK RELATED                     c) UNDETERMINED
              as of this date

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D.    August 2012 Independent Medical Examination of Picon’s Shoulder

      Gallagher requested that Picon undergo an “independent” medical

examination. Dr. Randall D. Blinn, a certified orthopedic surgeon, physically

examined her, reviewed her 2006-2012 medical records, and prepared a report,

dated August 23, 2012. Dr. Blinn’s report stated that: (1) Picon’s ability to move

her right shoulder was “still severely limited with internal and external rotation

which are both very painful;” and (2) “I do believe that this individual’s problem

with the right shoulder is most probably because of patient disease.”

      Dr. Blinn wrote that among the possible explanations for Picon’s pain were:

“the fact that she is a diabetic female in her sixth decade of life and the fact that

she does have a collagen vascular disease and a history of chest pain.” In Dr.

Blinn’s opinion, “[i]t is not reasonable to state that using a mouse or a computer at

a workstation in a repetitive fashion is the reason for this persons [sic] right

shoulder problem.” Dr. Blinn labeled Picon’s case “as an idiopathic case of frozen

right shoulder.”

      Dr. Blinn did “not believe that any further treatment is necessary regarding

the right shoulder under the workers’ compensation date of accident of 2/2/2012.”

Dr. Blinn advised that “[n]o restrictions are necessary regarding the same” and that

“[t]here is no impairment rating regarding the right shoulder and the February 2,

2012 date of accident.”


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                          II. PROCEDURAL HISTORY

A.    Picon’s August 2012 Workers’ Compensation Petition

      On August 13, 2012, Picon, through counsel, filed a “petition for workers’

compensation benefits” with the Division’s Office of the Judges of Compensation

Claims naming both Gallagher and its insurer. Picon’s petition requested

“[a]uthorization for surgery as prescribed by Dr. Rodriguez Font [sic] on 6/18/12

(right shoulder manipulation)” and “[a]uthorization for a PCP to do the pre-ops as

prescribed by Dr. Rodriguez-Font [sic].”

B.    The Insurer Does Not Authorize Surgery and Discontinues Benefits

      Under Florida law, Gallagher’s insurer had 14 days to: (1) “either pay the

requested benefits without prejudice to its right to deny within 120 days from

receipt of the petition”; or (2) “file a response to petition.” Fla. Stat. § 440.192(8).

However, the insurer did not pay for the surgery and did not file a response to the

petition.

      On August 27, 2012, Picon’s attorney contacted Gallagher’s attorney “and

inquired whether surgery would be authorized.” That same day, Gallagher’s

attorney responded by attaching Dr. Blinn’s report and writing: (1) “Dr. Blinn . . .

indicates your client’s shoulder condition is unrelated to her work activities”; and

(2) Gallagher’s insurer “will not authorize the shoulder manipulation prescribed by

Dr. Font-Rodriguez.”


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      That same day, Gallagher’s Roth sent an email to an employee at Dr. Font-

Rodriguez’s office stating: “Based upon our 8.23.12 IME with Dr. Blinn, surgery

will not be authorized under workers’ compensation. Please note that no further

shoulder treatment will be authorized as Dr. Blinn did not feel her shoulder

complaints were related to her job duties.” Dr. Font-Rodriguez’s employee sent

this message on to Picon, writing: “Sorry this is the answer I received today.”

C.    Picon’s September 2012 Complaint

      Thereafter, on September 17, 2012, Picon filed a complaint in state court

alleging that Gallagher had acted negligently and that “[o]ver the course of her

employment between 1991 and February 2, 2012, the Plaintiff suffered on-the-job

injuries during the work she performed as a consequence of the aforesaid

negligence of the Defendant.” Gallagher removed the case to federal court.

D.    Picon’s September 2012 Withdrawal of Workers’ Compensation
      Petition

      On September 25, 2012, Picon voluntarily dismissed her workers’

compensation petition. Picon’s attorney stated that Picon did so “[r]elying upon

the position taken by Gallagher Bassett that Ms. Picon’s shoulder injury was not

related to her employment.” Picon paid for and underwent surgeries on her right

shoulder on October 1, 2012 and November 26, 2012. Dr. Font-Rodriguez

performed these surgeries.

                III. SUMMARY JUDGMENT PROCEEDINGS
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       After discovery, Gallagher filed a motion for summary judgment. Gallagher

argued that Picon’s negligence claim was barred by workers’ compensation

exclusivity. Specifically, Gallagher reasoned that: (1) Picon was its employee at

all relevant times; (2) it maintained a workers’ compensation liability insurance

policy; and (3) Picon’s sole vehicle to “challenge Dr. Blinn’s finding is the

workers’ compensation court and a ruling by a Judge of Compensation Claims in

her favor.”

       In opposition, Picon argued that summary judgment was inappropriate

because Gallagher was estopped from asserting workers’ compensation

exclusivity. Picon reasoned that estoppel applied because: (1) Gallagher denied

her surgery claim on the basis that her condition was “unrelated to her work

activities”; and (2) Picon acted in reliance on Gallagher’s position that her

condition was “unrelated to her work activities” by bringing a tort claim,

dismissing her workers’ compensation petition, and paying for the necessary

medical procedures. 2




       2
        The district court also denied Picon’s request for partial summary judgment in her favor,
but Picon does not appeal that ruling.


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       The district court granted Gallagher’s motion for summary judgment. The

district court concluded that under Florida law, workers’ compensation exclusivity

barred Picon’s negligence claim. Picon appealed. 3

                          IV. APPLICABLE FLORIDA LAW

       In this diversity case, we apply the law of the forum state, Florida. See

James River Ins. Co. v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1274 n.1 (11th

Cir. 2008).

       Under Florida law, when an individual suffers an accidental compensable

injury “arising out of work performed in the course and scope of employment,” the

individual’s employer must provide compensation for that injury or furnish the

benefits through a workers’ compensation insurance carrier. Fla. Stat. § 440.09(1).

The workers’ compensation system is the employee’s only means of pursuing

claims against her employer for injuries “arising out of work performed in the

course and scope of employment,” see id., subject to two narrow statutory

exceptions, neither of which applies here. Fla. Stat. § 440.11(1).

       We review eight Florida appellate decisions that discuss the estoppel

doctrine in an employee’s lawsuit where the employer raised workers’

       3
         We review de novo a district court’s grant of summary judgment and draw “all
inferences and review all evidence in the light most favorable to the non-moving party.”
Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012) (internal
quotation marks omitted). “Summary judgment is appropriate only if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Id. (internal quotation marks omitted).


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compensation exclusivity as an affirmative defense. We then apply that Florida

law in those decisions to Picon’s case. 4

A.     Elliott v. Dugger (Fla. 1st DCA 1989)

       In Elliott v. Dugger, 542 So. 2d 392 (Fla. 1st DCA 1989), the plaintiffs

Robert Elliott (an employee at a state prison) and his wife sued the Florida

Department of Corrections’s Secretary and others for negligence after Mr. Elliott

“ingested blood serum contaminated with the AIDS virus while on duty” at a

prison. Id. at 392–93. The Elliotts’ complaint alleged that “Robert Elliott was

denied a claim for workers’ compensation benefits on the basis that the infection of

the positive serum did not arise ‘naturally or unavoidably’ as a result of his

employment.” Id. at 393.

       In their answer, the defendants “raised the affirmative defense of the

exclusivity of the Workers’ Compensation Act.” Id. In response, the Elliotts

argued that the defendants were “estopped from asserting the exclusivity defense

on the basis that ‘[p]laintiff timely filed a claim for workers’ compensation

benefits; his claim was denied by the state of Florida; plaintiff detrimentally and in

reliance thereon instituted the subject action.’” Id. (alteration in original).




       4
        All eight decisions are by District Courts of Appeal. If the Florida Supreme Court has
not addressed an issue, we look to guidance from the Florida District Courts of Appeal and apply
those courts’ decisions absent “persuasive indication” that the Florida Supreme Court would do
otherwise. See Flintkote Co. v. Dravo Corp., 678 F.2d 942, 945 (11th Cir. 1982).
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        Later on, the defendants moved for summary judgment on the basis of

workers’ compensation exclusivity. Id. at 393. In response, the plaintiffs

submitted Mr. Elliott’s testimony stating that “his claim for benefits was denied in

a letter which he subsequently received in which it was stated that there were no

benefits due under his claim.” Id. The Elliotts were not able to locate that letter.

Id. 5

        The trial court granted the defendants’ motion. Id. On appeal, the Elliotts

argued that “there were material issues of fact existing as to whether [the

defendants] [are] estopped from raising the exclusivity provisions of the Workers’

Compensation Act as a defense.” Id.

        Reversing, the First District Court of Appeal explained that “[s]ummary

judgment is particularly unsuitable in a case where the facts and circumstances

indicate the possibility of an estoppel.” Id. The Florida appellate court declined to

“construe the meaning of the alleged representation made by [the defendants] that

no benefits were due claimant.” Id. at 394 (emphasis added). The court said that

“representation could have meant, for instance, either that the Department of

Corrections was of the opinion that there had yet been no injury shown, or that it

had taken the position that Elliott had no right to claim benefits because the injury

was not a covered injury.” Id. The court went on that “if [the defendants] denied

        5
      Nothing in the record suggested that the employer-state ever paid workers’
compensation benefits before denying the claim. See Elliott, 542 So. 2d at 393.
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workers’ compensation coverage on the basis that Robert 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 Elliotts were free to pursue common law

remedies.” Id. Thus, summary judgment was inappropriate, in light of the

existence of “genuine issues of material fact concerning the issue of estoppel.” Id.

Specifically, that factual issue was what was the employer’s given reason for

denying the workers’ compensation claim. See id.

B.    Byerley v. Citrus Publishing, Inc. (Fla. 5th DCA 1999)

      Next was Byerley v. Citrus Publishing, Inc., 725 So. 2d 1230 (Fla. 5th DCA

1999), where an employee, Audrey Byerley, sued her employer, Citrus Publishing,

for negligence after she sustained injuries from tripping over a bench located on

Citrus Publishing’s property. Id. at 1231. Ms. Byerley had “punched out for the

day” when the accident occurred. Id. The accident caused Ms. Byerley to suffer

“a compression fracture of the vertebrae in her back, pull[] her right groin muscle,

fracture[] her left kneecap, and suffer[] numerous abrasions.” Id. “Her total

medical bills exceeded $30,000.” Id.

      Ms. Byerley first “filed a claim for workers’ compensation benefits which

was denied by the employer and its workers’ compensation carrier.” Id. Citrus

Publishing did not pay any portion of Ms. Byerley’s $30,000 medical bills or

otherwise pay her workers’ compensation benefits. See id.


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      “The notice of denial stated: ‘Injury did not arise out [of] the course and

scope of [Byerley’s] employment. Employee was clocked out and had exited the

building, when she tripped over a bench on the pavement.’” Id. at 1231

(alterations in original). After Ms. Byerley filed her tort complaint, the employer

moved for summary judgment, asserting that “Byerley’s exclusive remedy was

worker’s compensation.” Id. The trial court granted summary judgment for the

employer. Id.

      Reversing, the Fifth District Court of Appeal reasoned that Citrus Publishing

“created a Hobson’s choice for Byerley: the employer, through its insurance

carrier, denied her claim for workers’ compensation, and then, when Byerley

elected to proceed in a tort action, argued that she could not sue because her

exclusive remedy was the Workers’ Compensation Act.” Id. at 1232. Therefore,

the appellate court concluded that “it would be inequitable for an employer to deny

worker’s compensation coverage on the ground that the employee’s injury did not

arise out of the course and scope of employment, then later claim immunity from a

tort suit on the ground that the injury did arise out of the course and scope of

employment.” Id.

      The Florida court reasoned that: (1) the employer had informed Ms. Byerley

that it was denying her claim “because it did not occur in the course and scope of

her employment”; (2) Ms. Byerley had “accepted and relied on the denial, bore her


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medical expenses, then sued the employer in tort as permitted by the statute”; and

(3) the “elements of estoppel are shown” and the employer was not entitled to

summary judgment. Id. at 1232–33.

C.    Tractor Supply Co. v. Kent (Fla. 5th DCA 2007)

      The third case, Tractor Supply Co. v. Kent, 966 So. 2d 978 (Fla. 5th DCA

2007), involved an employee, Kent, who worked for Tractor Supply Co. (“TSC”).

Id. at 979. Kent alleged that, while at work, he was exposed to hydrated lime dust,

which can cause lung injuries and aggravate breathing disorders. Id. Kent filed a

petition for benefits through the workers’ compensation system, and his

employer’s insurer denied the claim, stating the condition complained of: (1) “was

the result of a pre-existing medical condition and not the result of employment

with TSC”; and (2) “was the result of a prior worker’s compensation claim that

had been settled for continuing treatment.” Id.

      Kent initially pursued remedies through the workers’ compensation system.

Id. After discovery in that forum and just before mediation, Kent voluntarily

dismissed his workers’ compensation petition and filed a complaint in state court

against TSC. Id. The workers’ compensation claim thus “was withdrawn before it

was adjudicated.” Id.

      In the tort case, Kent moved for partial summary judgment on the issue of

whether TSC was estopped from asserting workers’ compensation exclusivity as


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an affirmative defense. Id. The trial court granted Kent’s motion and TSC

appealed. Id.

      Reversing, the Fifth District Court of Appeal framed the issue as: whether

the Byerley and Elliott decisions “establish that an employer such as TSC, who,

through its comp carrier, denies a worker’s compensation claim on the basis that

the injury or illness was pre-existing, is then estopped from asserting worker’s

compensation immunity and exclusivity in defending against a civil tort action[?]”

Id. at 978 (footnote omitted). The Florida appellate court held that they do not. Id.

at 980–81.

      The Florida appellate court read Byerley narrowly, stating that “Byerley

holds that expressly asserting that an injury did not occur in the scope and course

of employment estops the employer from defending a subsequent tort action on the

ground that the claim arose in the course and scope of employment.” Id.

Importantly, “[i]t is not simply the denial, but rather the irreconcilable positions

asserted, that led to the result in Byerley.” Id. The irreconcilable position in

Byerley was the insurer claimed Ms. Byerley’s fall injury did not occur in the

course and scope of her employment but later asserted workers’ compensation

exclusivity when she sued. See id.

      In contrast, in Kent, the Florida appellate court explained, TSC’s insurer

“did not assert that no employment relationship existed or that the incident


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occurred outside the scope of employment. Rather, the denial asserts that under

the terms of the Worker’s Compensation Act, the injury is one which is not

deemed compensable.” Id. The Florida appellate court explained that “[t]here is

no irreconcilable conflict in the employer here raising a pre-existing medical

condition defense to a comp claim, but asserting it is, nevertheless, insulated from

a civil suit.” Id. at 981. To the extent that Kent objected to the insurer’s

determination, the court held that “Kent could and should have litigated the

defense of pre-existing injury/illness in the comp action” as “[a] pre-existing injury

or illness is a recognized defense to a claim for comp benefits.” Id.

D.    Coca-Cola Enterprises, Inc. v. Montiel (Fla. 2d DCA 2008)

      Shortly thereafter, Florida’s Second District Court of Appeal decided Coca-

Cola Enterprises, Inc. v. Montiel, 985 So. 2d 19 (Fla. 2d DCA 2008), the fourth

case we review. In Montiel, the plaintiff “suffered a back injury while unloading

Coca-Cola products at a Tampa Kash N’ Karry store.” Id. at 19. The appellate

court stated that “[u]nquestionably, the injury occurred in the course and scope of

employment.” Id. Monteil’s employer, Coca-Cola, “paid workers’ compensation

benefits to him for twelve weeks.” Id. Coca-Cola stopped doing so upon receipt

of medical evidence indicating “that Mr. Monteil’s condition no longer related to

his work injury, but to a degenerative condition.” Id. at 20. Monteil “did not claim




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further benefits under the workers’ compensation statute” and instead “sued Coca-

Cola and Kash N’ Karry for negligence.” Id.

      In the negligence action, Coca-Cola sought summary judgment on the basis

of workers’ compensation exclusivity. The trial court denied the summary

judgment after the plaintiff argued that “the denial of further benefits estopped

Coca-Cola from claiming workers’ compensation exclusivity.” Id.

      Reversing, the Florida appellate court pointed out that, unlike in Elliott and

Byerley, “Mr. Monteil’s injury was work-related. Coca-Cola never contended

otherwise. Coca-Cola paid benefits for approximately three months. Indeed,

Coca-Cola denied further benefits only when medical evidence indicated Mr.

Monteil’s condition no longer related to his work injury.” Id. The court concluded

that it was not aware of a “statutory provision that, under these circumstances,

strips the employer of the exclusivity defense.” Id. “Had Mr. Monteil thought

himself entitled to further benefits,” the court explained, “the statute provided a

vehicle to seek relief.” Id. (citing Fla. Stat. § 440.192 (“Any employee may, for

any benefit that is ripe, due, and owing, file with the Office of the Judges of

Compensation Claims a petition for benefits which meets the requirements of this

section and the definition of specificity in § 440.02.”)).

E.    Schroeder v. Peoplease Corp. (Fla. 1st DCA 2009)




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      Our fifth case is Schroeder v. Peoplease Corp., 18 So. 3d 1165 (Fla. 1st

DCA 2009), where plaintiff Schroeder, a truck driver, worked for Peoplease Corp.

Id. at 1166. Schroeder was injured when he attempted to manually move a 2,000

pound load within his trailer causing the onset of heart problems and the need for

emergency heart surgery. Id. Schroeder filed a workers’ compensation petition.

Id. “Peoplease controverted the entire claim and filed a notice of denial which”

gave six reasons for denying the claim. Id. One of the reasons was “[t]he present

condition of claimant is not the result of injury arising out of and in the course and

scope of his or her employment.” Id. The other reasons related to whether a

causal connection existed between Schroeder’s work and his condition and

whether his injury was a compensable one under the statute. Id. It was undisputed

that Peoplease had paid no benefits, either medical or lost wages, since Schroeder’s

injury in 2006. Id. at 1168.

      After the denial, Schroeder commenced a civil action against, inter alia,

Peoplease and argued that, given its denial, Peoplease could not assert workers’

compensation exclusivity as an affirmative defense. Id. at 1165–66. Peoplease

sought summary judgment on the basis of workers’ compensation exclusivity.

Peoplease filed an affidavit of its insurer’s adjuster stating that the intent of the

denial notice was “neither to assert a lack of an employment relationship nor to

allege that Mr. Schroeder’s incident occurred outside the scope of the employment


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relationship.” Id. at 1167. Instead, the intent of the denial notice “was to dispute

that Mr. Schroder’s injury was compensable.” Id. The state trial court granted

summary judgment for Peoplease. The Schroeders appealed. Id. at 1167–68.

      Reversing, the First District Court of Appeal concluded that the case was

akin to Byerley and Elliott. The employer, Peoplease tried to distinguish Byerley

by arguing that in that case “it was clear that the employee was not in the course

and scope of employment because she had ‘clocked out and had exited the

building, when she tripped over a bench.’” Id. at 1169. The Schroeder court

rejected the employer’s argument that “when the facts make clear that the

employee suffered a workplace incident, then estoppel will never apply despite

what the employee and carrier may have said in the notice of denial.” Id. Thus,

like in Elliott, “there remain disputed issues of material fact as to the meaning of

the language employed in the notice of denial.” Id. at 1170. The court pointed out

that “[s]ummary judgment is inappropriate where the wording of a document is

ambiguous and interpretation involves questions of fact.” Id. Because “[w]hether

estoppel is appropriate in this case and whether the employer took irreconcilable

positions is dependent upon the meaning to be accorded the notice of denial,” the

court reversed and remanded. Id.

F.    Coastal Masonry, Inc. v. Gutierrez (Fla. 3d DCA 2010)




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      Our sixth case is Coastal Masonry, Inc. v. Gutierrez, 30 So. 3d 545 (Fla. 3d

DCA 2010), where the plaintiff, Gutierrez, was injured while “lifting concrete

blocks.” Id. at 547. Gutierrez filed a petition for workers’ compensation benefits

from his employer, Coastal Masonry, and the employer’s insurer denied the claim

“in its entirety.” Id. It was “undisputed that Coastal [Masonry] paid no benefits to

Gutierrez.” Id.

      The notice of denial gave several reasons, specifically: (1) “[t]he claimant

did not report the alleged injury to the employer in a timely manner”; (2) “[t]he

present condition of the claimant is not the result of an injury by accident arising

out of and in the course and scope of employment”; (3) “[t]here is no accident or

occupational disease”; (4) “[t]he condition complained of is not the result of an

injury”; (5) “[t]he claimant’s medical condition is the result of a pre-existing

condition or disease”; and (6) “[t]he claimant’s medical condition is personal, pre-

existing and/or idiopathic in nature.” Id.

      After receiving the notice of denial, Gutierrez “voluntarily dismissed his

petition and filed a negligence action against Coastal [Masonry].” Id. Gutierrez’s

complaint alleged “that Coastal [Masonry] had denied his workers’ compensation

claim on the basis that the accident and injuries did not arise out of his employment

and were not covered by workers’ compensation.” Id. (internal quotation marks

and alterations omitted). Coastal Masonry admitted this allegation “and further


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denied that Gutierrez was a Coastal [Masonry] employee.” Id. “Notwithstanding

[this] denial . . . , Coastal [Masonry] denied that it had waived workers’

compensation immunity and further asserted that immunity as an affirmative

defense.” Id.

      Later, Coastal Masonry moved for summary judgment on the basis of

workers’ compensation exclusivity and the trial court denied the motion and found

that Coastal Masonry was estopped as a matter of law from asserting the defense.

Id. Coastal Masonry appealed. Id.

      Affirming, the Third District Court of Appeal held that “the record shows

that Coastal [Masonry] has taken inconsistent positions.” Id. at 548. Specifically,

it had “denied Gutierrez’s claim for workers’ compensation benefits stating that

‘[t]he present condition of the claimant is not the result of an injury by accident

arising out of and in the course and scope of employment.’” Id. Then, Coastal

Masonry “asserted as an affirmative defense that it was entitled to the exclusivity

defense because the accident arose in the course and scope of Gutierrez’s

employment.” Id. The appellate court pointed out that Coastal Masonry’s

summary judgment position was inconsistent with the position it took in the

workers’ compensation forum and in its own answer in the case. Id.

      Having determined that the employer took inconsistent positions, the Florida

appellate court next turned to “whether, as a matter of law, Coastal [Masonry] is


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estopped from raising a workers’ compensation exclusivity defense.” Id. The

court explained that the elements of estoppel are: (1) “a representation by the party

estopped to the party claiming the estoppel as to some material fact, which

representation is contrary to the condition of affairs later asserted by the estopped

party”; (2) “reliance upon this representation by the party claiming the estoppel”;

and (3) “a change in the position of the party claiming the estoppel to his

detriment, caused by the representation and his reliance thereon.” Id. (internal

quotation marks omitted). The court determined that “the record established the

elements of estoppel” as Gutierrez “(1) dismissed the worker’s compensation

claim; (2) incurred medical expenses; and (3) filed a negligence action to recover

damages resulting from his injury.” Id. Accordingly, the appellate court affirmed

the trial court’s conclusion that estoppel applied as a matter of law to bar Coastal

Masonry’s workers’ compensation defense. Id.

G.    Mena v. J.I.L Construction Group Corp. (Fla. 4th DCA 2012)

      Next, we turn to Mena v. J.I.L. Construction Group Corp., 79 So. 3d 219

(Fla. 4th DCA 2012). The plaintiff, Mena, “while constructing a home, . . . fell to

the ground from a second-floor roof truss” and “sustained multiple injuries.” Id. at

221. Mena filed workers’ compensation claims with his employer (“J.I.L.”) and

the sub-contractor (“Slorp”). Id. at 222. Both companies denied the claims. Id.

Slorp’s notice of denial stated that “Mena was employed by J.I.L., not Slorp.” Id.


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J.I.L.’s notice of denial said: (1) “There is no employer/employee relationship

established”; (2) “Failure to report injury timely”; (3) “The

Employer/Carrier/Servicing Agent reserves the right to these and any other

defenses that may become apparent.” Id.

      Eight months later, Mena voluntarily dismissed his workers’ compensation

petitions and “filed suit against J.I.L. and Slorp for negligence.” Id. Both

defendants asserted workers’ compensation exclusivity as affirmative defenses. Id.

When defendants moved for summary judgment, “Mena argued that J.I.L. and

Slorp should be estopped from asserting worker’s compensation exclusivity

because of their previous denials.” Id. The trial court granted summary judgment

to defendants, “finding that their previous ‘general denials’ were not inconsistent

with their claims of entitlement to worker’s compensation immunity.” Id.

      Reversing as to defendant J.I.L., the Fourth District Court of Appeal

explained that when “the language employed in the notice of denial could give rise

to more than one interpretation, such that it cannot be fairly determined whether

the employer’s positions are inconsistent, summary judgment is inappropriate.” Id.

at 223. The court applied this principle to the case, noting that “J.I.L’s denial

suggested it was asserting that Mena was not its employee. At the very least, . . .

the meaning of the language employed in the notice of denial is unclear.” Id.

(internal quotation marks omitted). Because “issues of material fact remain with


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respect to whether J.I.L. asserted inconsistent positions and whether it should be

estopped from claiming it is entitled to worker’s compensation immunity,” the

court reversed “the entry of summary judgment in favor of J.I.L.” Id.

      On the other hand, the Florida appellate court affirmed summary judgment

in favor of Slorp. Id. at 223–24. The court observed that “Slorp maintained

consistent positions in the worker’s compensation forum and in Mena’s civil

action.” Id. Specifically, “Slorp denied Mena’s worker’s compensation claim on

the basis that Mena was employed by J.I.L. not Slorp, and that J.I.L. had coverage.

Slorp’s affirmative defense of worker’s compensation immunity stated that Mena

was acting in the course and scope of employment performing work subcontracted

by Slorp to J.I.L.” Id.

H.    Ocean Reef Club, Inc. v. Wilczewski (Fla. 3d DCA 2012)

      Most recently, in Ocean Reef Club, Inc. v. Wilczewski, 99 So. 3d 1 (Fla. 3d

DCA 2012), two former employees (Wilczewski and Leon) of a beauty salon

alleged that they were exposed to chemical fumes while at work, and as a result,

had suffered “asthma-like symptoms, headaches and respiratory problems.” Id. at

2. The employees notified their employer of their injuries, but the beauty salon

owner, Ocean Reef, did not notify its workers’ compensation insurance carrier. Id.

The employees “brought a civil action for damages against Ocean Reef” at which

point Ocean Reef “notified the workers’ compensation insurance carrier of the


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claims.” Id. The insurer “denied the claims contending that the illnesses did not

occur in the course and scope of employment” and noting that “the statute of

limitations had run.” Id.

      In the employees’ civil action, Ocean Reef moved for summary judgment

“arguing that Wilczewski’s and Leon’s injuries were work-related, and that, based

on workers’ compensation immunity, it was immune from suit as a matter of law.”

Id. at 3. The trial court denied the motion and Ocean Reef appealed. Id. at 4.

      Affirming, the Third District Court of Appeal held that, as a matter of law,

Ocean Reef was estopped from asserting workers’ compensation immunity. Id.

The court reasoned that because “the carrier’s denial is absolutely clear on its face

that the reason for the denial is ‘[n]o accident in the course and scope of

employment,’ it is ‘clearly irreconcilable’ with the defense of tort immunity

asserted by Ocean Reef.” Id. As the carrier’s basis for denying the claim was

imputed to the employer, Ocean Reef could not “contend that the injuries were, in

fact, related to work and therefore covered by workers’ compensation when it has

clearly denied coverage on inconsistent grounds earlier.” Id.

                 V. GENUINE ISSUES OF MATERIAL FACT

      These decisions make clear that, under Florida law, whether estoppel applies

to prevent an employer from asserting the workers’ compensation exclusivity

defense in a tort action may turn on what reasons were given for denying workers’


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compensation benefits. When the record reveals multiple possible explanations for

the denial, or the language in the denial document is ambiguous and gives rise to

more than one interpretation, issues of material fact exist over whether the

employer’s position is inconsistent so as to indicate possible estoppel. See Mena,

79 So. 3d at 222–23; Schroeder, 18 So. 3d at 1170; Elliott, 542 So. 2d at 393–94.

      That is the case here. Gallagher’s insurer paid Picon workers’ compensation

for almost six months as a result of her right shoulder pain, suggesting that

Gallagher’s insurer considered the condition work-related. But when Picon

requested the surgery recommended by Dr. Font-Rodriguez, Gallagher denied the

request, relying on Dr. Blinn’s opinion that her right shoulder problem was not

work-related. Gallagher on appeal argues that Dr. Blinn meant only that Picon’s

work was not a “major contributing cause” of her right shoulder pain.

      The communications in the record between Gallagher and Picon or her

attorney do not contain the words “major contributing cause” or otherwise clearly

reflect this position. Further, to some extent, Dr. Blinn appeared to focus on

medical causation by saying Picon’s injury was due to her age, diabetes, vascular

disease, and chest pain, which may make Picon’s problems preexisting.

      On the other hand, Gallagher’s emails, viewed in the light most favorable to

Picon, can be construed as denying the existence of an incident occurring in the

course and scope of employment. For example, Gallagher’s attorney wrote that


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Picon’s “shoulder condition is unrelated to her work activities.” Likewise,

Gallagher’s senior claims representative Roth wrote that “no further shoulder

treatment will be authorized as Dr. Blinn did not feel her shoulder complaints were

related to her job duties.” Dr. Blinn himself wrote “it is not reasonable to state that

using a mouse or computer at a workstation in a repetitive fashion is the reason for

this persons [sic] right shoulder problem.”

      We do not conclude that estoppel applies here as a matter of law. We

determine only that there were genuine issues of material fact as to what were

Gallagher’s reason or reasons for the denial of Picon’s request for workers’

compensation benefits. Accordingly, the district court erred in granting summary

judgment to the defendant Gallagher as a matter of law based on its workers’

compensation exclusivity affirmative defense.

                                VI. CONCLUSION

      For the reasons stated above, we reverse the grant of summary judgment for

the defendant Gallagher and remand for further proceedings consistent with this

opinion.

      REVERSED and REMANDED.




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