Workers' Compensation Defense

A three-judge panel of the Fifth District Court of Appeal issued an intriguing opinion concerning employers’ civil suit immunity and compensability determinations. The opinion sets forth a process for claimants seeking to file civil liability suits against their employers and identifies the final arbiters of workers’ compensation compensability determinations. It does so, acknowledging that no other court has addressed this specific issue.

Under Florida law, with limited exceptions, employers are immune from civil liability when employees are injured at work. § 440.11(1), FLA STAT. (2024). Employees, likewise, may seek only those remedies available under the workers’ compensation statute, though such remedies are available under a no-fault basis, again with limited exceptions. This is the so-called “bargain” struck in Florida’s legislative system: limited economic remedies for employers in exchange for employees’ access to no-fault remedies. 

In Steak ‘N Shake, Spears was held at gunpoint while at work and was forced into a backroom where a gunman threatened to kill her. The gunman grabbed Spears by the shoulder and neck during the encounter. Spears experienced severe emotional distress as a result of the robbery, but rather than pursue a claim for workers’ compensation benefits, she sued her employer for civil damages. She argued that her case was not compensable because elsewhere in Florida’s Workers’ Compensation Act mental injuries are deemed non-compensable if they are not accompanied (or caused) by physical injuries. § 440.093, FLA. STAT. (2024). The employer/carrier argued, however, that Spears could not make the compensability determination on her own and was required to at least request benefits within the workers’ compensation system as a necessary condition to filing a civil suit. The civil trial court agreed with Spears and ruled that she was permitted to file a civil suit premised on its determination that her accident and injuries were not compensable.

The Fifth District Court of Appeal disagreed. As the opinion acknowledges, the District Court has exclusive jurisdiction over most workers’ compensation cases. Of note, however, is the opinion’s author, Judge Makar, who was appointed to the First District Court of Appeal in 2012 and recommissioned to the Fifth District Court of Appeal in 2023. Thus, Judge Makar, while no longer sitting on the First District Court, authored this opinion with extensive familiarity with workers’ compensation jurisprudence. Moreover, other circuit courts and District Courts of Appeal routinely issue rulings and opinions on cases that broach workers’ compensation issues. 

It is with this background that the three-judge panel confronted a new question and announced a new rule, at least within the Fifth District: employees may not file tort claims against their employers in circuit court without first seeking a determination of whether they are entitled to workers’ compensation benefits. The court highlighted language in Florida Statutes § 440.13(1)(d), which states that compensability questions are determined by only two entities, a “carrier” or “judge of compensation claims.” A Florida circuit judge, therefore, lacks such authority.

As well, claimants may not unilaterally determine that their claims are non-compensable; they may not serve as their own judge of compensation claims and thus bypass the limitations of recovery under the Workers’ Compensation Act. 

In the Steak ‘N Shake case, while Spears alleged in her civil suit that she had no physical injury that required medical treatment, the Fifth District Court of Appeal held that, in the first instance, such factual matters about compensability must be reviewed by a carrier or judge of compensation claims. Because Spears did not initially submit a claim under the workers’ compensation system as her first step in seeking a remedy, neither the carrier nor a judge of compensation claims made a compensability determination. The Fifth District Court, thus, held that she thereby “leapfrogged” the statutory framework, and it remanded the case to the trial court to find whether a claim for workers’ compensation benefits had been filed with the carrier in the interim. If not, the carrier would be entitled to dismissal.

It should be noted that this case does not appear to disturb the well-established line of cases holding that claimants may pursue civil suits against their employers when the employers/carriers affirmatively deny compensability. Thus, employers/carriers will still be estopped from taking mutually exclusive positions regarding compensability and civil immunity in different legal forums. In other words, even under Steak ‘N Shake, employers and carriers may not deny compensability of a workers’ compensation claim and subsequently assert civil immunity if the claimant sues in civil court. 

This Fifth District Court of Appeal case does hold, however, that employees must first pursue workers’ compensation benefits, receive an adverse determination from either a carrier or a judge of compensation claims, and only then has the right to pursue civil remedies against their employers for accidents and injuries that, at first glance, appear to be work related.  

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_{What’s Hot in Workers’ Comp, Vol. 29, No. 7, July 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}