PER CURIAM.
The motion for rehearing is granted. We withdraw the opinion issued October 31, 2001, and substitute the following opinion.
Appellants, Inservices, Inc., f/k/a Managed Care USA Services, Inc., and Mippy Heath (hereafter collectively referred to as "defendants"), appeal the denial of their motion to dismiss claiming they are entitled to workers' compensation immunity. We agree and reverse.
Appellant, Inservices, Inc., f/k/a Managed Care USA Services, Inc. ("Inservices") provided workers' compensation benefits to the employer of appellee Rodrigo Aguilera ("Aguilera"). Aguilera was injured in a work-related accident when he was struck by an electric fork lift in April of 1999. Inservices referred Aguilera to a workers' compensation clinic where he was treated and eventually discharged to return to work with restrictions.
A few weeks later, Aguilera began to complain of kidney and bladder pain. After examination by two doctors who both recommended that Aguilera not return to work, Aguilera's workers' compensation attorney requested examination and treatment by a board certified urologist. Inservices denied the request claiming the injury was not work-related.
In June of 1999, Aguilera notified Inservices that he was passing feces through his urine and was in need of immediate urological care. Three days later, Aguilera was advised that his workers' compensation benefits were being terminated. Inservices denied the emergency request for medical care claiming it was not medically necessary.
Several weeks later, Aguilera's treating physician again advised Inservices that the need for urological care was urgent and that his condition had deteriorated. The results of a retrograde urethogram revealed Aguilera had a hole in his bladder. A new case manager was assigned to Aguilera's case, defendant/appellee Mippy Heath ("Heath"), however, Heath rejected Aguilera's request that a general surgeon perform immediate emergency surgery on his fistula. She insisted on a second opinion and the administration of tests which, according to Aguilera, were painful and contraindicated by his medical condition. Heath thereafter sent Aguilera to a gastroenterologist.
After seeing six doctors in addition to his initial treating physician, and after urinating feces and blood for over ten months, Aguilera's surgery was authorized on March 22, 2000. Aguilera filed suit against the defendants, seeking damages for common law bad faith and breach of contract against Inservices, for intentional infliction of emotional distress against Inservices and Heath, and seeking a declaration that the workers' compensation exclusivity rule is unconstitutional to the extent it eliminates claims for subsequent malfeasance of a carrier.
The defendants moved to dismiss on various grounds including the defense of workers' compensation immunity under the Workers' Compensation Act (the "Act"). The trial court denied the motion finding that intentional, outrageous conduct on the part of the defendants escalated the workers' compensation claim into a tort action.
We empathize with Aguilera's plight in resolving his medical problems. However, established precedent and the plain language of the Workers' Compensation Act requires that we reverse.
This Court previously established that the test to determine if workers' compensation bars a tort action, is whether the injury for which a plaintiff seeks recovery is covered by the Workers' Compensation Act. See Old Republic Ins. Co. v. Whitworth, 442 So.2d 1078 (Fla. 3d DCA 1983). Simply stated, if the injury is covered by the Act, a separate tort action in circuit court is barred.
Thus, in Old Republic Ins. Co. v. Whitworth, 442 So.2d at 1078, we dismissed the plaintiff's tort claim because workers' compensation provided a remedy for the allegations of delayed payment and bad faith. In so doing, we specified that: "[A] compensation claimant cannot avoid the exclusivity of the Act and transform a delay in payments into an actionable tort cognizable in the Circuit Court simply by calling that delay outrageous, fraudulent, deceitful or an intentional infliction of emotional distress." Old Republic Ins. Co. v. Whitworth, 442 So.2d at 1079. See also Sheraton Key Largo v. Roca, 710 So.2d 1016 (Fla. 3d DCA 1998) (workers' compensation immunizes a carrier from a tort action based on alternative allegations of outrageous, fraudulent and deceitful conduct or for intentional infliction of emotional distress committed while handling a claim); Montes de Oca v. Orkin Exterminating Co., 692 So.2d 257 (Fla. 3d DCA 1997) (allegations of delay, outrageous misconduct, and intentional infliction of emotional distress in handling claim, fall within exclusive jurisdiction of workers' compensation judge).
We further noted the history and objectives of the workers' compensation laws, and expressed our concerns that "if delay in providing services could become the subject of an independent suit, the legislatively designed exclusivity of the act would be destroyed." Old Republic Ins. Co. v. Whitworth, 442 So.2d at 1079 (citing Sullivan v. Liberty Mut. Ins. Co., 367 So.2d 658 (Fla. 4th DCA 1979), cert. denied, 378 So.2d 350 (Fla. 1979)). The legislative intent expressed in the workers' compensation law is that a claimant's exclusive remedy for misconduct in the rendition of medical care lies solely with the commission, and not through independent third party court actions.
As noted in Sullivan v. Liberty Mut. Ins. Co., 367 So.2d at 660 (quoting Noe v. Travelers Ins. Co., 342 P.2d 976 (Cal.App. 1st Dist. 1959), if a carrier is liable for all intentional torts which occur after a workplace injury, the present workers' compensation system would be effectively eliminated:
"if delay in medical service attributable to a carrier could give rise to independent third party court actions, the system of workmen's compensation could be subjected to a process of partial disintegration. In the practical operation of the plan, minor delays in getting medical service, such as for a few days or even a few hours, caused by a carrier, could become the bases of independent suits, and these could be many and manifold indeed. The uniform and exclusive application of the law would become honeycombed with independent and conflicting rulings of the courts. The objective of the Legislature and the whole pattern of workmen's compensation could thereby be partially nullified."
This reasoning is further supported not only by Florida case law, but by cases from numerous other jurisdictions which have addressed allegations of flagrant interference by a carrier in rendition of medical care, and which have all concluded that the worker's sole remedy lay in compensation proceedings under the Act. See Old Republic Ins. Co. v. Whitworth, 442 So.2d at 1078, and cases cited therein.
This is not to say that a compensation carrier is immune from all intentional torts. The workers' compensation scheme does not immunize a compensation carrier from wrongdoing which occurs independently of its claims handling. Sibley v. Adjustco, Inc., 596 So.2d 1048 (Fla. 1992) (adjuster who fraudulently edited the statement of a claimant which results in the denial of benefits constitutes an intentional act independent of the handling of a workers' compensation claim); cf. Associated Indus. of Fla. Prop. Cas. Trust v. Smith, 633 So.2d 543 (Fla. 5th DCA 1994) (it is not an independent tort for a workers' compensation carrier to withdraw benefits, as a wrongful termination can be remedied under the statute). Thus once a trial court determines a plaintiff does have a remedy under the Workers' Compensation Act, the only remaining issue to be considered prior to dismissal is whether the plaintiff's allegations involve wrongdoing independent of the workers compensation claim.
Aguilera does not argue that he is without remedies under the Act. And we note the Act does contain provisions addressing his allegations that the defendants lied to him concerning available benefits, refused to schedule appointments with physicians, wrongfully attempted to deprive or ignored his request for medical treatment and insisted upon tests to evaluate his medical condition which were contradicted by his medical condition. Aguilera's primary contention is that the exclusivity provisions of the workers' compensation statutes do not bar his intentional tort claim because the defendants' conduct was outrageous and resulted in injuries separate and distinct from the work related injury. We disagree.
If a carrier "lies" regarding available benefits, such statements constitute a criminal offense and subject the carrier to penalties under section 440.105, Florida Statutes (2000). The Department of Insurance is authorized to revoke or suspend the authority of a workers' compensation carrier for violation of Section 440.105. See § 440.106(3), Fla. Stat. (2000). Damages for bad faith are also authorized by the Act. See Florida Erection Serv., Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981).
A claimant has a number of remedies if a workers' compensation carrier wrongfully attempts to, or deprives or ignores, a request for medical treatment. Section 440.20, Florida Statutes (2000), sets a deadline for the timely payment of compensation claims and establishes penalties for late payments. Pursuant to section 440.34(3), Florida Statutes (2000), a claimant can recover attorneys' fees from the carrier in a claim for medical benefits. Further, section 440.192, Florida Statutes (2000), provides a procedure for resolving any benefit disputes between a carrier and a claimant and sets strict deadlines for dispute resolution.
A carrier is entitled to request an independent medical examination concerning compensibility or medical benefits. See § 440.13, Fla. Stat. (2000). However, if a claimant believes the exam would be inconsistent with his medical condition, he can seek relief from a judge of compensation claims who has the power to deny a carrier's request. See Watkins Eng'r Constructors v. Wise, 698 So.2d 294 (Fla. 1st DCA 1997); Fla. R. Work. Comp. P. 4.065. Aguilera thus does have remedies under the Act.
The dissent relies on Turner v. PCR, Inc., 754 So.2d 683 (Fla. 2000), to support their claim that Inservices be denied the immunity provided by the Act. However, Turner is distinguishable from the instant case.
Turner involved the continued use of a chemical, TFE by an employer, PCR, who had advanced knowledge of TFE's ultrahazardous nature. In fact, the manufacturer of TFE, notified PCR of its intention to discontinue supplying TFE throughout the United States because of the inherent danger and the high risk of injury of using TFE. In addition, PCR had first hand knowledge of the high risk associated with handling TFE because there had been at least three other similar uncontrolled explosions in less than two years at PCR's chemical plant.
PCR ignored the warnings and danger signs and continued to allow its employees to use TFE in unsafe procedures because PCR needed to meet a fast approaching contractual deadline. As a result, one employee died and another received serious injuries in an explosion caused by TFE.
The injuries in Turner, can be traced directly to the grossly negligent actions of PCR. If not for PCR's decision to continue to use TFE, the employees would not have been injured.
In contrast, Inservices had no part in causing Aguilera's injuries. Aguilera would have needed medical care with or without Inservices's alleged misconduct. Thus, there is no separate act, independent from Inservices's handling of the claim, which injured or "to a substantial certainty" would have caused Aguilera's injuries. Furthermore, as noted prior, other remedies for Aguilera's claims are provided for by the Act.
In order for an independent tort to exist, there must be facts that are distinct from a breach of contract. See HTP, Ltd. v. Lineas Aeras Costarricenses S.A., 685 So.2d 1238 (Fla. 1996); Invo Florida, Inc. v. Somerset Venturer, Inc., 751 So.2d 1263 (Fla. 3d DCA 2000); Here, all of Aguilera's allegations deal with the manner in which his claim was handled by the defendants pursuant to the workers' compensation insurance contract. Since all of the allegations relate to the defendants alleged breach of contractual obligations under the workers' compensation policy, no independent acts have been alleged and thus there is no independent tort. See Sullivan v. Liberty Mut. Ins. Co., 367 So.2d at 658. Aguilera's injuries arising from any delays in medical treatment were incidental to his original injury and compensable by his employer's compensation carrier. See Old Republic Ins. Co. v. Whitworth, 442 So.2d at 1079.
Aguilera's argument that a carrier does not have immunity for acts which occur after a workplace injury, contradicts the obvious intent of section 440.11(4), Florida Statutes (2000), as well as common sense. Section 440.11(4) extends immunity from liability to the employer's workers' compensation carrier. Thus a carrier is immune from tort liability for acts taken to discharge its obligations under the Workers' Compensation Act. These obligations would necessarily include the adjustment of claims. The adjustment of a workers' compensation claim presupposes an injury has already occurred, because if a worker has not already been injured, there would be no claim to adjust. If we were to adopt Aguilera's reasoning, the result would be an effective stripping of all immunity because a carrier must necessarily act in the adjustment of a claim after an injury has already occurred. This is simply not a common sense construction and would contradict the intent of the statute, as well as encourage a multiplicity of collateral lawsuits.
In conclusion, we find the allegations in the present case are insufficient to come within any exception to the statutory immunity provided by section 440.11, Florida Statutes (2000). See Sheraton Key Largo v. Roca, 710 So.2d at 1016; Old Republic Ins. Co. v. Whitworth, 442 So.2d at 1078; Sullivan v. Liberty Mutual Insurance Co., 367 So.2d at 658. Accordingly, the trial court erred in finding the cause of action was not barred by the Act, and the case is hereby reversed and remanded with instructions to enter a final order dismissing the complaint.
Reversed and remanded with instructions.
GERSTEN, J., and NESBITT, Senior Judge, concur.