An employee cannot file a tort lawsuit against her employer until aft
er it has been determined that she is not eligible for a workers’ compensation claim. And that compensability determ
ination can only be made by an insurer or a compensation judge, a Florida appeals court has ruled.
In Steak ‘n Shake vs. Spears, Florida’s 5th District Court of Appeals overturned a Brevard County Circuit Court’s ruling
in a case that involved a robbery of the restaurant and a server who said she w
as traumatized but not physically injured by the incident.
“We conclude that the structure and language of the workers comp
ompensability must first be made before resorting to tort lawsuits,” the appeals court panel wrote.
The circumstances of the claim were unusual and had never been addr
essed by Florida courts, including the 1st District Court of Appeals, which hears most worke
rs’ compensation appeals, the 5th DCA judges noted. The National Council on Compensation Insurance this week included the case in its court case update.
(Adobe Stock image)
It began in 2019 when Amber Nicole Spears was waiting tables at the restaurant. She was held at gunpoint and forc
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ed into a back room by the robber. She said in court filings that she suffered severe emotional distress from the incident. But, thinking that she would not be eligible
to pursue a workers’ comp claim and benefits for a non-physical injury, she sued her employer in circuit court.
The trial court judge agreed and found that Spears’ trauma wa
s not compensable under the state’s workers’ comp system. The judge allowed the tort suit to move forward.
But the 5th District appellate judges held that Florida law specifies who can make that determination.
“‘Compensable’ means a determination by a carrier or judg
e of compensation claims that a condition suffered by an employee results from an injury arising ou
t of and in the course of employment,” the 5th DCA wrote, citing Florida Statute 440.093(1).
“It is a matter of due process as well because carriers are statutorily required to receive and evaluate claims
in the first instance,” the court added. “Going directly to a Florida c
ircuit court without allowing carriers to perform their statutory role is not what the workers compensation laws envisioned.”