Under Florida law, the surviving spouse and dependent children are entitled to share death benefits totaling $150,000. While that amount is modest given the magnitude of their loss, it represents the maximum financial protection the Legislature has afforded families in these circumstances. Unfortunately, the employer and carrier have thus far taken the position that the survivors are entitled to nothing at all.

When the employer/carrier failed to voluntarily provide the death benefits required by law, we filed a Petition for Benefits on behalf of the surviving spouse and children. Although our firm has handled more than 1,000 workers’ compensation cases, the employer/carrier’s formal response to this petition presented a defense unlike any we had previously encountered.

Notably, the employer/carrier accepted that the decedent was its employee and that his fatal accident arose out of and occurred in the course and scope of his employment. Nevertheless, it denied that death benefits were presently due and owing to the surviving spouse and minor children, asserting that there was “no evidence that the deceased employee had wages as defined in section 440.02(40), Florida Statutes.“

In other words, despite acknowledging the existence of an employment relationship and the compensability of the accident, the employer/carrier contended that the decedent’s widow and children were not entitled to benefits because there was allegedly no evidence that the employee earned “wages” within the meaning of the Workers’ Compensation Act.

Because the employer/carrier’s position appeared unsupported by the facts, the law, logic, or basic principles of workers’ compensation, we immediately filed a Motion to Strike, laying out our position as follows:

1. The Claimant suffered a fatal industrial accident on June 15, 2026.
2. The Claimant is survived by statutory dependents entitled to benefits under Chapter 440.
3. On September 21, 2026, a Petition for Benefits was filed seeking death benefits on behalf of the survivors (DN 1).
4. On October 20, 2026, the Employer/Carrier (E/C) filed its response, admitting in paragraph 4 that the June 15, 2026 accident ‘has been accepted as compensable.” (DN 6)
5. Nevertheless, in paragraph 1 of its Response to Petition for Benefits (DN 6), E/C denies death benefits, stating thus: “Payment of death benefits to surviving spouse and minor children is not due or owing at this time, as there is no evidence that the deceased employee had wages as defined in Florida Statute section 440.02(40).”
6. The E/C’s assertion in paragraph 1 is flatly contradicted by its own simultaneous, binding admission in the same pleading that the industrial accident is fully compensable. For this reason, and as explained more fully below, the affirmative defense should be stricken.
7. Furthermore, and as explained more fully below, the Claimant moves to strike the affirmative defense for lack of specificity.
8. Authority to Strike Affirmative Defenses. The Judge of Compensation Claims (JCC) possesses explicit authority to strike E/C’s boilerplate, non-specific affirmative defense asserted in its Response to Petition for Benefits. Under Florida Administrative Code Rule 60Q-6.113(2)(h), an E/C is required to plead affirmative defenses “with specificity, detailing the conduct giving rise to the defense”.[1] When an E/C fails to meet this threshold—such as raising a broad allegation of “misrepresentation” or “statute of limitations” without supporting facts—the JCC is legally required to strike the defense to protect the Claimant’s due process rights.
9. In THG Rentals & Sales of Clearwater, Inc. v. Arnold, 196 So. 3d 485 (Fla. 1st DCA 2016), the Court found that E/C failed to plead its misrepresentation defense with sufficient detail to satisfy Rule 60Q-6.113(2)(h), where it first asserted “misrepresentation,” with nothing more in denying the entire claim—the three Responses to Petition for Benefits referenced by the Court are attached hereto as Composite Exhibit A—then adding in the subsequent pretrial stipulation, two broad categories – “physical abilities” and “post accident earnings” – without identifying any specific misrepresentative conduct.[2]
10. In McFarlane v. Miami Dade Transit Authority, 215 So. 3d 658 (Fla. 1st DCA 2017), the Court reversed the denial of benefits because the JCC relied on a defense that was not actually pled but instead assumed to be “implicit” in the E/C’s affirmative defense. Although the case was decided under Rule 60Q 6.113(2)(a), it underscores the importance of pleading affirmative defenses with specificity and detail.
11. The E/C Cannot Simultaneously Admit Compensability and Deny Wages. Under Chapter 440, a compensable accident requires a valid employer-employee relationship. Section 440.02(18)(a), Florida Statutes, explicitly defines an “employee” as a person who receives “remuneration from an employer for the performance of any work or service.” Because remuneration is a statutory prerequisite to employee status and compensability, the E/C’s binding admission that the accident is compensable precludes it from denying the existence of wages.
12. By accepting compensability of this death claim, E/C admitted that an employer-employee relationship existed. Under the plain language of the statute, an individual cannot legally be an “employee” for whom an accident is “compensable” without a contract for hire. By definition, a contract for hire requires consideration – namely, remuneration (wages). Therefore, by accepting compensability and admitting an employment relationship, E/C concedes that the Claimant was engaged under a contract providing for wages. Accordingly, the assertion that there is “no evidence” of wages while simultaneously accepting compensability is a logical and legal impossibility designed purely to delay the payment of mandatory statutory benefits to a grieving widow and minor children.
13. Lack of Specificity is Problematic. The E/C’s affirmative defense states: “Payment of death benefits to surviving spouse and minor children is not due or owing at this time, as there is no evidence that the deceased Employee had wages as defined in Florida Statute section 440.02(40).”
14. From this language, it is impossible to discern the actual basis of the E/C’s defense. Is the E/C contending that the Claimant worked without compensation? If so, that position fails as a matter of law. By accepting compensability, the E/C necessarily acknowledged that the Claimant was its employee. Under section 440.02(15), Florida Statutes, an employee is a person who performs services for remuneration. Thus, the E/C cannot simultaneously accept the existence of an employment relationship while denying that the Claimant received compensation for his work.
15. Alternatively, is the E/C asserting that the Claimant’s remuneration does not constitute “wages” because it was not reported by the Claimant for federal income tax purposes? If that is the defense, it likewise fails as a matter of law. Neither the text of section 440.02(40) nor the governing case law supports such a restrictive interpretation. Section 440.02(40), Florida Statutes (2026), defines wages as those “wages earned and reported for federal income tax purposes.” In Garcia-Lopez v. Affordable Plumbing, 66 So.3d 1024 (Fla. 1^st DCA 2011), the First DCA reversed and remanded an order of the Judge of Compensation Claims (JCC) denying the Claimant’s claim for temporary disability benefits based on this provision. For guidance on remand, the Court wrote as follows: “[W]e note that the definition of wages in section 440.02(28) does not state that wages reported for federal income tax purposes include only those wages reported by an employee. Federal law requires employers to report and withhold taxes from wages paid to employees. See, e.g., 26 U.S.C. §§ 3402(a), 3403 (2008); United States v. Assoc. Developers of Fla., Inc., 400 So.2d 17, 19 (Fla. 1st DCA 1980). Proof that wages have been reported for federal income tax purposes by the employee or the employer therefore satisfies the plain language of the statute. Indeed, a presumption arises on payment of wages that the employer has withheld an appropriate amount as income taxes. Pacific Pools Constr. Co. v. McClain’s Concrete, 101 Nev. 557, 706 P.2d 849, 852 (1985) (citing United States v. Abrahams, 312 F.Supp. 1035 (S.D.N.Y.1970)).^[*][3] Consequently, we regard as dicta any language in Fast Tract [Fast Tract Framing, Inc. v. Caraballo, 994 So.2d 355 (Fla. 1st DCA 2008)] suggesting that only wages reported by the employee may be included in the statutory definition of wages.”
16. Garcia-Lopez recognized that the statute is written in the passive voice and does not identify who must make the report, whether the employee through an income tax return or the employer through a payroll tax filing. Nor does it specify to whom the report must be made. While the statute expressly requires an employee to report gratuities “to the employer,” it provides only that wages must be “earned and reported for federal income tax purposes.” The court thus declined to read into the statute a requirement that earnings qualify as wages only if the employee personally reports them to the Internal Revenue Service. In the court’s view, neither the statutory text nor its structure supported such a construction.
17. Federal law places the duties of withholding, remitting, and reporting wages squarely on the employer. Under 26 U.S.C. § 3402(a)(1), “every employer making payment of wages shall deduct and withhold” the required taxes. Any taxes so withheld “shall be held to be a special fund in trust for the United States.” 26 U.S.C. § 7501(a). Employers are likewise required to report wages and tax withholdings through the federal employment-tax reporting system and annual wage statements. See 26 U.S.C. § 6051; 26 C.F.R. § 31.6051-2. Indeed, a willful failure to collect or pay over such taxes constitutes a felony. 26 U.S.C. § 7202. These federal obligations are significant because, as Garcia-Lopez recognized, the statutory phrase “reported for federal income tax purposes” is written in the passive voice and does not identify who must perform the reporting. Federal law answers that question. The responsibility for withholding, remitting, and reporting wage information to the federal government rests with the employer, not the employee. Thus, to the extent the decedent’s earnings were allegedly not “reported for federal income tax purposes,” that circumstance would arise from the employer’s failure to discharge duties imposed by federal law, not from any omission by the employee.
18. The Doctrine of Equitable Estoppel Bars the E/C’s Defense. If the E/C failed to withhold, remit, and report taxes on the Claimant’s earnings, as required by federal law, it should be estopped from relying upon its own statutory noncompliance and misreading of the statute to defeat the Claimant’s survivors’ entitlement to death benefits. Under Florida law, equitable estoppel applies when: (1) a party takes a position or has a legal duty; (2) another party relies on that position or duty; and (3) an injury occurs when the first party seeks to change or switch positions to the other’s detriment. Department of Revenue v. Anderson, 403 So.2d 397, 400 (Fla.1981). Accord La Croix  Constr. Co. v. Bush, 471 So.2d 134, 136 (Fla. 1st DCA 1985) (holding that the evidence supported the conclusion in a workers’ compensation case that the appellant was precluded by equitable estoppel from denying that it was the claimant’s employer). In workers’ compensation cases, Florida courts have consistently relaxed stringent civil pleading rules to apply estoppel wherever an “obvious wrong” would otherwise result. See Painter v. Board of Public Instruction of Dade County, 223 So.2d 33 (Fla. 1969); City of Hollywood v. Pisseri, 412 So. 2d 913 (Fla. 1st DCA 1982).
19. In Painter, the Supreme Court of Florida explained the application of estoppel in workers’ compensation proceedings as follows: “The word “estoppel” or “estopped,” as used in Workmen’s Compensation cases, refers to a state of affairs which arises when a person — claimant or employer or other — executes some deed or is concerned in or does some act — or refrains from doing some act — which will prevent him from averring anything to the contrary at some later time. The rule is of particular importance in these cases and should be applied where an obvious wrong would otherwise result — regardless of whether pleaded with the niceties or requirements of the law applicable to Civil cases. Painter v. Bd. of Pub. Instruction of Dade Cnty., 223 So. 2d 33, 34 (Fla. 1969).”
20. The E/C’s position is further undermined by the fact that the Claimant passed away approximately ten months before he would have been required to file an individual federal income tax return for tax year 2026. Pursuant to 26 U.S.C. § 6072, the Claimant’s 2026 federal income tax return was not due until April 15, 2027. Consequently, the Claimant’s death occurred well before any legal obligation arose to file a return reporting his 2026 earnings, rendering the E/C’s argument contrary to the practical realities of the statutory filing requirements.
21. Because the E/C has failed to identify the factual or legal basis for its affirmative defense with any degree of specificity, the foregoing examples are merely educated guesses as to what the E/C may be attempting to allege. The E/C may have an entirely different factual or legal theory in mind, but its pleading provides no means of discerning what that theory may be. Rather, it leaves the Claimant entirely uninformed of the factual and legal basis for the defense, preventing adequate preparation for deposition and hearing. Requiring the Claimant to speculate on the nature of a blanket defense undermines the self-executing nature of Chapter 440, Florida Statutes, and impairs the Claimant’s ability to conduct targeted discovery; consequently, this legally insufficient defense must be stricken.

WHEREFORE, the Claimant respectfully requests that this Honorable Judge enter an order striking the E/C’s wage defense, deeming wages earned as established based on the E/C’s binding admission of compensability, and granting such other relief as is just and proper. In the alternative, the Claimant moves to dismiss the defense for lack of specificity.

[1] A mirror framework exists in the Florida Rules of Civil Procedure 1.140(f), which permits civil courts to strike insufficient defenses to prevent trial by ambush.

[2] Although the Court ultimately allowed E/C to rely on the misrepresentation defense, it did so based on additional information developed during the litigation that provided the claimant with adequate notice of the factual basis for the defense. The Court nevertheless recognized that E/C’s initial pleading and subsequent pretrial disclosures, viewed in isolation, lacked the specificity required by Rule 60Q-6.113(2)(h).

[3] The Court included this asterisk note stating: “We need not decide in this case whether an employee may rely upon this presumption to prove compliance with the reporting requirement of section 440.02(28).”

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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.

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