By Wilbur W. Anderson
THIS ARTICLE WAS FIRST PUBLISHED IN THE FLORIDA BAR JOURNAL IN 2019
Vol. 93, No. 6   November/December 2019 Pg 44
Workers’ Compensation

 

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. 440.192(2). Then there’s the requirement in Florida Administrative Code Rule 60Q- 6.ll3(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, estoppe/, failure of consideration, fraud, illegality, injury by fellow servant, /aches, license, payment, release, resjudicata, 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 Bono, 207 So. 3d 1030, 1031 (Fla. 1st DCA 2017).
2. Intoxication: Paradise Neptune Fish Mkt./Retail First 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. Williams, 234 So. 3d 816, 823 (Fla. 1st DCA 2017).
5. Estoppel: Teco Energy, 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 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 & Sur. Co. v. Houghton, 632 So. 2d 103, 103 (Fla. 1st DCA 1994).
9. Misconduct: Cory Fairbanks Mazda Minor, 192 So. 3d 596,598 (Fla. 1st DCA 2016).
10. Apportionment: Giaimo 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 Miami-Dade Transit Auth., 215 So. 3d 658, 660 (Fla. 1st DCA 2017).
14. Accord and satisfaction, release, waiver, and equitable estoppel:  Hack Drywall, 46 So. 3d 1137, 1138 (Fla. 1st DCA 2010).
15. Laches: Zaldivar Okeelanta Corp., 877 So. 2d 927, 931 (Fla. 1st DCA  2004).
16. Knowing refusal to use a safety appliance or observe a safety rule: McKenzie Tank Lines, v. McCauley, 418 So. 2d 1177, 1180 (Fla. 1st DCA 1982).

What’s an Avoidance?

 Broadly speaking, any affirmative defense is an avoidance .and vice versa. More commonly, the term is used to refer to an affirmative defense to a defense. [2] Rule l.llO(d) specifically requires that avoidances be asserted in the pleadings. Rule 6.113(2)(h) doesn’t use the word “avoidance,” but it does say any affirmative defense must be raised with specificity, and that any objections or responses to the affirmative defenses must be pied with specificity. It’s reasonable to conclude the objections or responses required by the rule refer to avoidances.

The best example of an avoidance in workers’ compensation litigation is a claimant’s assertion of waiver under the 120-day rule. Relying in part on Rule 6.113(2)(h), caselaw holds this “is an affirmative pleading which must be timely raised and specifically plead.”[3] But don’t assume the 120-day rule is the only avoidance a claimant has to plead with specificity. Any affirmative defense to a defense must be asserted with specificity in the pretrial stipulation.

Some Things May Look Like Affirmative Defenses, But They’re Not

Statutory jurisdictional requirements aren’t affirmative defenses.  Even though the statute of limitations in §440.19 is an affirmative defense, and the assertion that the statute of limitations has been tolled is an avoidance, [4] the two-year limitation period for modification of an order in F.S. §440.28, isn’t an affirmative defense but an absolute jurisdictional requirement.[5] That means it’s not subject to the pleading requirements of Rule 6.ll3(2)(h).

Don’t Confuse Elements of a Claim with Affirmative Defenses

Claimants are required to prove each and every element of a claim [6] If something is an element of the claim, the absence of proof supporting it doesn’t have to be asserted as an affirmative defense under Rule 6.ll3(2)(h). For example, in 1994, the legislature added language to F.S. §440.09(1): “The injury, its occupational cause, and any resulting manifestations or disability shall be established to a reasonable degree of medical certainty and by objective medical findings.” In Pyram v. Marriott Intern., 687 So. 2d 351, 351 (Fla. 1st DCA 1997), the court held this language didn’t establish an affirmative defense that had to be asserted by the employer/carrier. Instead, the court held it established a new standard of proof that all claimants must meet. Because the claimant didn’t present any evidence of objective medical findings, the court held the claim was properly denied even though the lack of objective medical findings wasn’t asserted as a defense by the employer/carrier before the final hearing.

What About Major Contributing Cause?

Whether major contributing cause is an element of a claim, or an affirmative defense is tricky. In Pyram, the court declined to address this question, saying in a footnote that the issue of whether §§440.09(l)(a) and (b) (Supp.1994) established affirmative defenses wasn’t before them. Later cases have made it clear, however, that major contributing cause, in the sense of a break in the chain of causation linking the compensable injury to the requested benefit, is an affirmative defense once compensability of an injury has been established. [7] However, in cases in which the major contributing cause standard applies to the initial determination of compensability of an injury, it’s part of a claimant’s initial burden of proof. [8]

Just because a defense isn’t an affirmative defense doesn’t mean it doesn’t have to be asserted in the pretrial stipulation. Parties are entitled to notice of what’s to be litigated. The specificity requirements in Rule 6.ll3(2)(h) only apply to affirmative defenses and objections or responses to them. But don’t forget that Rule 6.113(2)(a) requires that all defenses, not just affirmative defenses, be raised in the pretrial stipulation.  For example, in Knight v. Walgreens, 109 So. 3d 1224 (Fla. 1st DCA 2013), the JCC denied benefits based on the claimant’s failure to prove major contributing cause and medical necessity. The court reversed because these issues weren’t raised as defenses in the pretrial stipulation. Claimants don’t have to present evidence as to those elements of a claim that the employer/carrier hasn’t clearly stated on the pretrial stipulation are in dispute.

The Problem of Specificity

Rule 6.113(2)(h) requires affirmative defenses to be specific, “detailing the conduct giving rise to the defense, with leave to amend within 10 days.” It also says, “Failure to plead with specificity shall result in the striking of the defense.” But no procedure for resolving disputes over specificity is set out in the rule, and this has spawned some troublesome practices.

It’s all too common to see “nonspecific” or “vague” written on the pretrial stipulation in response to affirmative defenses and avoidances. It’s also not uncommon for parties to file notices objecting to affirmative defenses and avoidances as nonspecific. These practices are problematic because they don’t give the JCC an opportunity to rule on the question of whether the affirmative defense or avoidance satisfies the specificity requirements of Rule 6·.113(2)(h) before the final hearing. By that time, if the JCC determines the defense is nonspecific, the JCC is in the awkward position of striking the defense and continuing the final hearing to permit the additional 10 days for amending the pretrial required by Rule 6.113(2)(h) or striking the defense and proceeding without permitting amendment.

A Practical Suggestion

Lack of specificity in pleadings has long been addressed in civil litigation by a motion for more definite statement under Fla. R. Civ. P. l.14 0 (e) [9] l The rule says:

Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, that party may move for a more definite statement before interposing a responsive pleading. The motion must point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 70 days after the filing of the order or such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

Because a pretrial stipulation is defined as a pleading under F.A.C.R 60Q-6.102(11), filing this type of motion in a workers’ compensation case as soon as vague affirmative defenses are stated in a pretric1I stipulation is probably the best way to address affirmative defenses that a party believes aren’t specific enough. It has the advantage of bringing the issue to the attention of the JCC and the opposing party and allowing the opposing party 10 days to fix it after the JCC has ruled on the motion, consistent with Rule 6.113(2)(h).

Conclusion

Claimants and employer/carriers must raise affirmative defenses and avoidances with specificity in the pretrial stipulation. Now more than ever, workers’ compensation judges and lawyers should be mindful of the rules of procedure dealing with these pleading requirements and the applicable caselaw.

[1] Turner v. Keller Kitchen Cabinets, S., Inc., 247 So. 2d 35 (Fla. 1971).

[2] Moore Meats, Inc. v. Strawn In & For Seminole County, 313 So. 2d 660, 661 (Fla. 1975).  Reno v. Adventist Health Sys./Sunbelt, Inc., 516 So. 2d 63, 64 (Fla. 2d DCA 1987).

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

[4]  Palmer v. McKesson Corp., 7 So. 3d 561,563 (Fla. 1st DCA 2009). The author was co­ counsel for the appellant  in this case.

[5]  Budget Luxury Inns, Inc. v. Boston, 407 So. 2d  997, 999  (Fla. 1st DCA 1981).

[6]  Fitzgerald v. Osceola County Sch. Bd., 974 So. 2d 1161, 1164 (Fla. 1st DCA 2008).

[7]  Meehan v. Orange County Data & Appraisals, So. 3d; 44 Fla. L. Weekly 0733 (Fla. 1st DCA Mar. 20, 2019).

[8] Mangold v. Rainforest Coif Sports Ctr., 675 So. 2d 639, 642 (Fla. 1st DCA 1996).

[9] See Manka v. DeFranco’s Inc., 575 So. 2d 1357, 1359 (Fla. 1st DCA 1991); Miller v. Bill Rivers Trailers, Inc., 450 So. 2d 334,335 (Fla. 1st DCA 1984); Wilson v. Clark, 414 So. 2d 526, 528 (Fla. 1st DCA 1982}.

Wilbur W. Anderson is a judge of compensation claims in Daytona Beach. He is past president of the Florida Conference of Judges of Compensation Claims and past chair of the Workers’ Compensation Rules Committee of The Florida Bar. Judge Anderson received his law degree from George Washington University and his undergraduate degree, with honors, from Florida State University.

The opinions expressed in this article are the author’s own and not those of the Office of Judges of Compensation Claims, the Division of Administrative Hearings, or the State of Florida.

This column is submitted on behalf of the Workers’ Compensation Section, Glen Wieland, chair, and Pam Foels, editor.

 Iii,  Workers’ Compensation

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