Jeffrey P. Gale, P.A. // Workers’ Compensation Insurers Exempt from Civil Remedies Under Florida Statute 624.155

Florida Statute 624.155 gives people the right to sue insurance companies if they mishandle claims and cause financial harm. However, workers’ compensation insurance carriers are exempt from these provisions. Section 440.11(4) provides as follows:

“Notwithstanding the provisions of s. 624.155, the liability of a carrier to an employee or to anyone entitled to bring suit in the name of the employee shall be as provided in this chapter, which shall be exclusive and in place of all other liability.”

This essentially means that injured workers are usually limited to the remedies spelled out in Chapter 440 of the Florida Statutes when dealing with workers’ compensation insurers. In most instances, those remedies are suitable to the circumstances.

There is, however, one important exception to the Chapter 440 remedies.

In Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla 2005), the Florida Supreme Court declared that employees may present independent civil tort actions against insurance carriers for conduct intentionally causing harm.

The Court distinguished between deliberate, egregious misconduct and mere procedural delays or routine bad faith in the handling of the employee’s compensation claim captured within the exclusiveness of liability provision of s. 440.11(4), Florida Statutes. The Court explained:

“With regard to the liability of a worker’s compensation insurance carrier, section 440.11(4) provided that ‘[n]otwithstanding the provisions of s[ection] 624.155, the liability of a carrier to an employee or to anyone entitled to bring suit in the name of the employee shall be as provided in this chapter, which shall be exclusive and in place of all other liability.’ Essentially, the system is designed for employers and insurance carriers to assume responsibility for limited amounts of medical and wage loss benefits resulting from workplace injuries without regard to fault in exchange for limitations on their liability, while the employee would correspondingly receive quick and efficient delivery of limited wage loss compensation and medical benefits. The workers’ compensation system was never designed nor was it intended to act as a shield for those engaged in intentional conduct inflicting injuries upon workers through the benefit process itself.”

The immunity provisions of section 440.11(4) are formidable; only truly egregious conduct can surmount them. The facts in Aguilera demonstrate just how high that bar is set.

• 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.
• Four days later, Aguilera was advised that his workers’ compensation benefits were being terminated, notwithstanding the report of two doctors, including the opinion of the insurance carrier’s own doctor, that he should not return to work.
• 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.
• Thereafter, 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.
• 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.
• The insurance carrier’s own doctor issued Aguilera prescriptions for various urinary tests, and the appointments were in fact scheduled by the insurance carrier’s nurse.
• However, 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.
• The insurance adjuster refused authorization for the emergency surgery and insisted on a second opinion.
• The adjuster secretly appeared at the physician’s office for Aguilera’s appointment with an IME (independent medical examiner) urologist.
• The adjuster 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. 
• 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.

The Aguilera decision reverberated throughout the insurance industry, prompting an immediate overhaul of claims handling practices to better address the needs of injured workers. Although some abuses persist, the most flagrant misconduct has largely been curtailed.

Prevailing under the Aguilera framework is exceptionally challenging; the facts must be so egregious as to shock the conscience, and the resulting damages must be both permanent and substantial. Consequently, only a limited number of such cases have been brought forward.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.