The Court found the evidence did not cause the Claimant to black out or was “idiopathic” in nature. Idiopathic injuries are not covered under workers’ compensation as they can happen anywhere, are considered fortuitous and the workplace does not increase the likelihood of their occurrence.

Of importance, the last sentence in the “findings” part of the order states in conclusory fashion, “Therefore, Claimant’s employment was not the most preponderant cause of the injury.” This finding rests on the major contributing cause requirement where the employment must be more than 50% responsible, combined with all other causes, in producing the accident by injury that occurs within the course and scope and arises out of the worker’s employment.

Some practitioners would be highly critical of the result, and they would argue that once the employee is given a special errand to use his own vehicle to pick up medical supplies the risk is established as a matter of law. Therefore, arguably, the accident should be covered under workers’ compensation.

While the order is not extensive and many of the facts were stipulated to, the special errand doctrine, which is an exception to the going to work or coming home from work rule, is still alive and well under Florida law. A special errand exists if the journey was a substantial part of the service performed for the employer. Eady v. Medical Personnel Pool, 377 So. 2d 693 (Fla.1979).   A special errand exists where the employee is instructed by the employer to perform a special errand which grows out of and is incidental to his employment.  Bruck v. Glen Johnson, Inc., 418 So. 2d 1209, 1211 (Fla. 1st DCA 1982).  Even if the trip was on the normal route and the work to be performed not unusual, the irregularity of, and suddenness of the call to work “will always qualify it as a special errand.” Publix Supermarkets v. Finocchi, 650 So. 2d 1122, 1124 (Fla. 1st DCA 1995). There are many situations where the special errand exception may apply.

If the accident resulted in a traumatic brain injury (TBI) it is unlikely the judicial result would have been any different. It should be noted, however, the legal case was decided on one judge’s interpretation of facts, on that judge’s application of legal principles he felt controlling, and the extent of the injury played no role whatsoever in the decision. An appeal was taken on March 20, 2012.

While the Judge’s ruling appears what some consider to be an anomaly, it should not discourage those injured workers’ with legitimate workers’ compensation claims from hiring counsel and vigorously pursuing their rights under the law. We at DeCiccio & Johnson have extensive knowledge of the legal doctrines contained in the Florida workers’ compensation law.

This means if workers’ compensation denies a work-related injury, the injured worker may have the right to sue the employer in circuit court and go before a jury. This is important for two reasons: (1) in most cases even a seriously brain-damaged worker cannot sue the employer because of workers’ compensation immunity (or exclusivity) and (2) he or she cannot seek pain and suffering damages because they are not allowed in workers’ compensation. Pain and suffering is a damage allowed in circuit court.

This could be very important especially in traumatic brain injury (TBI), other catastrophic or serious injury workers’ compensation cases. In many cases these denials of workers’ compensation arise in accidents occurring at construction sites, but not always.

The workers’ compensation carrier and the employer cannot have it both ways. On the one hand, workers’ compensation cannot deny the case; and, on the other hand, the employer cannot hide under the umbrella of workers’ compensation immunity in a circuit court action. (Read on if you want to learn the details of the details of the Mena case).

In Mena, J.I.L. was a subcontractor. Slorp was the statutory employer. Both J.I.L. and Slorp denied the employee’s workers’ compensation claim. Claimant, the injured party, took voluntary dismissals of the petitions for benefits against J.I.L. and Slorp, and thereafter filed suit against them. Both J.I.L. and Slorp raised the affirmative defense of workers’ compensation immunity, and they filed for summary judgment based on workers’ compensation immunity.

The 4th DCA, the appellate court, upheld summary judgment in favor of the statutory employer, Slorp, and workers’ compensation immunity. The statutory employer stated in its notice of denial that the claim was denied; Mena was employed by J.I.L., not Slorp; and J.I.L. had provided Slorp with proof that J.I.L. had workers’ compensation coverage in effect on the date of accident. The 4th DCA found that Slorp had not taken inconsistent positions in asserting workers’ compensation immunity in the civil case and in denying the claim in its notice of denial in the workers’ compensation proceeding.

In Mena, the insured subcontractor, J.I.L., stated in its notice of denial the entire claim was denied, and there was no employee/employer relationship. The 4th DCA reversed summary judgment in J.I.L.’s favor granting workers’ compensation immunity, held that questions of fact remained as to whether J.I.L. was estopped from raising workers’ compensation immunity as a defense, and it was premature as to whether Section 440.11 (workers’ compensation immunity) applied at all.

In summary, it is helpful if counsel has experience in dealing with the workers’ compensation law as well as in the areas of personal injury law and TBI cases. The Mena decision says if workers’ compensation denies a work-related injury, the injured worker may have the right to sue the employer in circuit court and therefore claim damages for pain and suffering which are not available in workers’ compensation proceedings.

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