Affirmative Defenses in Florida Workers' Compensation.

• Date: 01 November 2019
• Author: Anderson, Wilbur W.

Once upon a time, workers' compensation pleading was informal. Even a letter from an injured worker's wife asking the state treasurer whether her husband had a valid claim counted as a claim. (1) Good luck trying that today! For better or worse, things are more complicated now.

For starters, there are the familiar specificity requirements for petitions for benefits in F.S. [section] 440.192(2). Then there's the requirement in Florida Administrative Code Rule 60Q-6.113(2)(h) that the misrepresentation defense "and any affirmative defense," must be raised with specificity in the pretrial stipulation. That rule also says, "Any objections/responses to the affirmative defenses must be pled with specificity." But what is an affirmative defense in workers' compensation? Moreover, what are the objections and responses to them that the rule requires be pled with specificity? Workers' compensation judges and lawyers, many of whom aren't experienced in the intricacies of civil pleading, now have to carefully consider these questions.

What's an Affirmative Defense?

Let's start with the Black's Law Dictionary definition of "affirmative defense": "A defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true." This definition also cross references the definition of "confession and avoidance": "A plea in which a defendant admits allegations but pleads additional facts that deprive the admitted facts of an adverse legal effect." To analogize to civil practice, if we think of the employee as the plaintiff and the employer/carrier as the defendant, an affirmative defense is an assertion by an employer/carrier in response to a claim that says, even if you're otherwise entitled to the benefit, we don't have to provide it because of something else. The "something else" defeats the claim. But what?

The Rules

Rule 6.113(2)(h) doesn't contain a list of affirmative defenses. It just says that affirmative defenses, and any objections or responses to them, must be raised with specificity. Florida Rule of Civil Procedure 1.110(d), in contrast, contains a nonexclusive list of affirmative defenses:

In pleading to a preceding pleading a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.

Some of the affirmative defenses listed in the civil rule have no relevance to workers' compensation litigation--assumption of the risk and contributory negligence, for example. But accord and satisfaction, estoppel, fraud, payment, release, res judicata, statute of limitations, and waiver are all familiar to the workers' compensation practitioner, and are likely to be considered as affirmative defenses under Rule 6.113(2)(h). In fact, the First District Court of Appeal has already characterized many of them, and other defenses specific to workers' compensation, as affirmative defenses. Here's the list of cases with corresponding case citations:

1) Misrepresentation: City of Hialeah v. Bono, 207 So. 3d 1030, 1031 (Fla. 1st DCA 2017).

2) Intoxication: Paradise v. Neptune Fish Mkt./RetailFirst Ins. Co., 238 So. 3d 901, 902 (Fla. 1st DCA 2018).

3) Willful intention of the employee to injure or kill himself, herself, or another: Bay Auto. v. Allaire, 593 So. 2d 589, 591 (Fla. 1st DCA 1992).

4) Waiver: Teco Energy, Inc. v. Williams, 234 So. 3d 816, 823 (Fla. 1st DCA 2017).

5) Estoppel: Teco Energy, Inc. v. Williams, 234 So. 3d 816, 823 (Fla. 1st DCA 2017).

6) Refusal to use a safety device or observe a safety rule: McKenzie Tank Lines, Inc. v. McCauley, 418 So. 2d 1177, 1180 (Fla. 1st DCA 1982).

7) Refusal of suitable employment/voluntary limitation of income/deemed earnings: Wyeth/Pharma Field Sales v. Toscano, 40 So. 3d 795, 801 (Fla. 1st DCA 2010): Hyatt Regency Westshore v. Robinson, 629 So. 2d 1088, 1089 (Fla. 1st DCA 1994).

8) Lack of coverage: Aetna Cas. & Sur. Co. v. Houghton, 632 So. 2d 103, 103 (Fla. 1st DCA 1994).

9) Misconduct: Cory Fairbanks Mazda v. Minor, 192 So. 3d 596, 598 (Fla. 1st DCA 2016).

10) Apportionment: Giaimo v. Florida Autosport, Inc., 154 So. 3d 385, 387 (Fla. 1st DCA 2014).

11) Statute of limitations: Palmer v. McKesson Corp., 7 So. 3d 561, 563 (Fla. 1st DCA 2009).

12) Retention of substantial earning capacity despite catastrophic injury: Home Depot v. Turner, 820 So. 2d 1075, 1075 (Fla. 1st DCA 2002).

13) Acquiescence to authorization of another provider as the one-time change of physician: McFarlane v. Miami-Dade Transit Auth., 215 So. 3d 658, 660 (Fla. 1st DCA 2017).

14) Accord and satisfaction, release, waiver, and equitable estoppel: Hack v. Drywall, 46 So. 3d 1137, 1138 (Fla. 1st DCA 2010).

15) Laches: Zaldivar v. Okeelanta Corp., 877 So. 2d 927, 931 (Fla. 1st DCA...