[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 13-12829

Non-Argument Calendar

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D.C. Docket No. 1:12-cv-23734-JEM

ELIZABETH PICON, 

 Plaintiff-Appellant,

 versus

GALLAGHER BASSETT SERVICES, INC.,

a foreign corporation for profit,

 Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(November 19, 2013)

Before HULL, MARTIN and FAY, Circuit Judges.

PER CURIAM:

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In this diversity case, Plaintiff-appellant Elizabeth Picon, brings a civil 

negligence action against her former employer, defendant-appellee Gallagher 

Bassett Services, Inc. This appeal involves whether Florida’s workers’ 

compensation law bars Picon’s tort action against her employer. After careful 

review, we conclude that the district court erred in granting summary judgment to 

the employer and reverse and remand for further proceedings consistent with this 

opinion. 

I. FACTUAL BACKGROUND

As explained later, Florida case law provides that, in certain circumstances, 

an employer, when sued by an injured employee, may be estopped from asserting

the affirmative defense of workers’ compensation exclusivity. Because the central 

issue here is estoppel, we review what happened before the employee brought this

tort lawsuit against her former employer. 

A. Picon’s September 2011 Right Shoulder Injury

Plaintiff Elizabeth Picon (“Picon”) worked for defendant Gallagher Bassett 

Services, Inc. (“Gallagher”) from December 31, 1991 until September 25, 2012. In 

September 2011, Picon first noticed pain in her right shoulder. The condition

became worse, resulting in a loss of motion. By February 2, 2012, Picon 

considered the shoulder pain debilitating. Picon went to a doctor who diagnosed 

Picon’s problem as tendonitis and informed Picon that the condition resulted from 

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“working on the computer at her desk.” Another doctor, who evaluated Picon 

several months later, believed that Picon’s shoulder pain resulted from “repetitive 

use of a mouse and the computer.” 

B. Picon’s February 2012 Workers’ Compensation Claim

Gallagher had a workers’ compensation policy that, pursuant to Florida 

workers’ compensation law, covered bodily injury to an employee as a result of

injuries or disease arising out of work performed in the course and scope of 

employment. On February 3, 2012, Picon and Gallagher reported her shoulder 

pain to Gallagher’s workers’ compensation insurance carrier (the “insurer”). 

Gallagher’s insurer began paying for Picon’s medical treatment. 

C. Insurer Paid Medical Benefits from February to August 2012

Gallagher referred Picon to Concentra, a physical therapy clinic. Picon 

attended approximately 20 physical therapy sessions. This treatment did not 

alleviate Picon’s pain. On March 7, 2012, Picon underwent an MRI and saw an 

orthopedist, Dr. Eliot Lang who diagnosed Picon as suffering from right shoulder 

adhesive capsulitis. Dr. Lang gave Picon a cortisone injection in the right shoulder

and referred Picon to a surgeon, Dr. David Font-Rodriguez.

Picon saw Dr. Font-Rodriguez on June 12, 2012 and again three weeks later. 

Dr. Font-Rodriguez agreed with Dr. Lang’s diagnosis of right shoulder adhesive 

capsulitis, which he called “frozen shoulder.” Dr. Font-Rodriguez discussed with 

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Picon “[o]perative and nonoperative treatment options . . . along with risks and 

benefits of each choice, and realistic expectations of each.” Dr. Font-Rodriguez’s 

notes stated: (1) “[Picon] will proceed with surgery as soon as she is medically 

cleared, and approved by the w/c carrier;” and (2) “the carrier is asking her 

Rheumatologist if her condition is preexisting or related to a rheumatologic 

problem, clearly which it is not.” 

Dr. Font-Rodriguez completed a “Florida Workers’ Compensation Uniform 

Medical Treatment/Status Reporting Form,” but did not answer the specific 

questions about whether Picon’s shoulder injury was work-related and whether 

there was more than one contributing cause of the injury.1

 Dr. Font-Rodriguez did 

write “needs surgery ASAP! . . . medication . . . no use of right arm (light duty) . . . 

no use of right arm . . . no repetitive use . . . no longer hours at work . . . no 

driving.” 

On July 25, 2012, Dr. Font-Rodriguez did send to Gallagher’s senior claims 

representative, Jennifer Roth, a document stating: “see 7/5/12 Adhesive capsulitis 

[a]s a condition is not caused by Diabetes, nor Systemic Lupus Erythematosus. 

Most often it is secondary to trauma to affected area (injury, surgery, etc.) 

sometimes its idiopathic in origin (of unknown etiology).” 

 1

For example, the unanswered question ten was: 

10. Injury/Illness for which treatment is sought is: 

a) NOT WORK RELATED b) WORK RELATED c) UNDETERMINED 

as of this date

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D. August 2012 Independent Medical Examination of Picon’s Shoulder

Gallagher requested that Picon undergo an “independent” medical 

examination. Dr. Randall D. Blinn, a certified orthopedic surgeon, physically 

examined her, reviewed her 2006-2012 medical records, and prepared a report, 

dated August 23, 2012. Dr. Blinn’s report stated that: (1) Picon’s ability to move 

her right shoulder was “still severely limited with internal and external rotation 

which are both very painful;” and (2) “I do believe that this individual’s problem 

with the right shoulder is most probably because of patient disease.” 

Dr. Blinn wrote that among the possible explanations for Picon’s pain were: 

“the fact that she is a diabetic female in her sixth decade of life and the fact that 

she does have a collagen vascular disease and a history of chest pain.” In Dr. 

Blinn’s opinion, “[i]t is not reasonable to state that using a mouse or a computer at 

a workstation in a repetitive fashion is the reason for this persons [sic] right 

shoulder problem.” Dr. Blinn labeled Picon’s case “as an idiopathic case of frozen 

right shoulder.” 

Dr. Blinn did “not believe that any further treatment is necessary regarding 

the right shoulder under the workers’ compensation date of accident of 2/2/2012.” 

Dr. Blinn advised that “[n]o restrictions are necessary regarding the same” and that 

“[t]here is no impairment rating regarding the right shoulder and the February 2, 

2012 date of accident.” 

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II. PROCEDURAL HISTORY

A. Picon’s August 2012 Workers’ Compensation Petition

On August 13, 2012, Picon, through counsel, filed a “petition for workers’ 

compensation benefits” with the Division’s Office of the Judges of Compensation 

Claims naming both Gallagher and its insurer. Picon’s petition requested

“[a]uthorization for surgery as prescribed by Dr. Rodriguez Font [sic] on 6/18/12 

(right shoulder manipulation)” and “[a]uthorization for a PCP to do the pre-ops as 

prescribed by Dr. Rodriguez-Font [sic].” 

B. The Insurer Does Not Authorize Surgery and Discontinues Benefits

Under Florida law, Gallagher’s insurer had 14 days to: (1) “either pay the 

requested benefits without prejudice to its right to deny within 120 days from 

receipt of the petition”; or (2) “file a response to petition.” Fla. Stat. § 440.192(8). 

However, the insurer did not pay for the surgery and did not file a response to the 

petition. 

On August 27, 2012, Picon’s attorney contacted Gallagher’s attorney “and 

inquired whether surgery would be authorized.” That same day, Gallagher’s 

attorney responded by attaching Dr. Blinn’s report and writing: (1) “Dr. Blinn . . . 

indicates your client’s shoulder condition is unrelated to her work activities”; and 

(2) Gallagher’s insurer “will not authorize the shoulder manipulation prescribed by 

Dr. Font-Rodriguez.” 

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That same day, Gallagher’s Roth sent an email to an employee at Dr. FontRodriguez’s office stating: “Based upon our 8.23.12 IME with Dr. Blinn, surgery 

will not be authorized under workers’ compensation. Please note that no further 

shoulder treatment will be authorized as Dr. Blinn did not feel her shoulder 

complaints were related to her job duties.” Dr. Font-Rodriguez’s employee sent 

this message on to Picon, writing: “Sorry this is the answer I received today.” 

C. Picon’s September 2012 Complaint

Thereafter, on September 17, 2012, Picon filed a complaint in state court 

alleging that Gallagher had acted negligently and that “[o]ver the course of her 

employment between 1991 and February 2, 2012, the Plaintiff suffered on-the-job 

injuries during the work she performed as a consequence of the aforesaid 

negligence of the Defendant.” Gallagher removed the case to federal court. 

D. Picon’s September 2012 Withdrawal of Workers’ Compensation 

Petition 

On September 25, 2012, Picon voluntarily dismissed her workers’ 

compensation petition. Picon’s attorney stated that Picon did so “[r]elying upon 

the position taken by Gallagher Bassett that Ms. Picon’s shoulder injury was not 

related to her employment.” Picon paid for and underwent surgeries on her right 

shoulder on October 1, 2012 and November 26, 2012. Dr. Font-Rodriguez 

performed these surgeries. 

III. SUMMARY JUDGMENT PROCEEDINGS

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After discovery, Gallagher filed a motion for summary judgment. Gallagher 

argued that Picon’s negligence claim was barred by workers’ compensation 

exclusivity. Specifically, Gallagher reasoned that: (1) Picon was its employee at 

all relevant times; (2) it maintained a workers’ compensation liability insurance 

policy; and (3) Picon’s sole vehicle to “challenge Dr. Blinn’s finding is the 

workers’ compensation court and a ruling by a Judge of Compensation Claims in 

her favor.” 

In opposition, Picon argued that summary judgment was inappropriate 

because Gallagher was estopped from asserting workers’ compensation 

exclusivity. Picon reasoned that estoppel applied because: (1) Gallagher denied 

her surgery claim on the basis that her condition was “unrelated to her work 

activities”; and (2) Picon acted in reliance on Gallagher’s position that her 

condition was “unrelated to her work activities” by bringing a tort claim, 

dismissing her workers’ compensation petition, and paying for the necessary 

medical procedures. 2

 

 2

The district court also denied Picon’s request for partial summary judgment in her favor, 

but Picon does not appeal that ruling. 

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The district court granted Gallagher’s motion for summary judgment. The 

district court concluded that under Florida law, workers’ compensation exclusivity

barred Picon’s negligence claim. Picon appealed. 3

 

IV. APPLICABLE FLORIDA LAW

In this diversity case, we apply the law of the forum state, Florida. See

James River Ins. Co. v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1274 n.1 (11th 

Cir. 2008). 

Under Florida law, when an individual suffers an accidental compensable 

injury “arising out of work performed in the course and scope of employment,” the 

individual’s employer must provide compensation for that injury or furnish the 

benefits through a workers’ compensation insurance carrier. Fla. Stat. § 440.09(1). 

The workers’ compensation system is the employee’s only means of pursuing 

claims against her employer for injuries “arising out of work performed in the 

course and scope of employment,” see id., subject to two narrow statutory 

exceptions, neither of which applies here. Fla. Stat. § 440.11(1). 

We review eight Florida appellate decisions that discuss the estoppel 

doctrine in an employee’s lawsuit where the employer raised workers’ 

 3

We review de novo a district court’s grant of summary judgment and draw “all 

inferences and review all evidence in the light most favorable to the non-moving party.” 

Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012) (internal 

quotation marks omitted). “Summary judgment is appropriate only if the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Id. (internal quotation marks omitted). 

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compensation exclusivity as an affirmative defense. We then apply that Florida 

law in those decisions to Picon’s case.4

A. Elliott v. Dugger (Fla. 1st DCA 1989)

In Elliott v. Dugger, 542 So. 2d 392 (Fla. 1st DCA 1989), the plaintiffs 

Robert Elliott (an employee at a state prison) and his wife sued the Florida 

Department of Corrections’s Secretary and others for negligence after Mr. Elliott 

“ingested blood serum contaminated with the AIDS virus while on duty” at a 

prison. Id. at 392–93. The Elliotts’ complaint alleged that “Robert Elliott was 

denied a claim for workers’ compensation benefits on the basis that the infection of 

the positive serum did not arise ‘naturally or unavoidably’ as a result of his 

employment.” Id. at 393. 

In their answer, the defendants “raised the affirmative defense of the 

exclusivity of the Workers’ Compensation Act.” Id. In response, the Elliotts 

argued that the defendants were “estopped from asserting the exclusivity defense 

on the basis that ‘[p]laintiff timely filed a claim for workers’ compensation 

benefits; his claim was denied by the state of Florida; plaintiff detrimentally and in 

reliance thereon instituted the subject action.’” Id. (alteration in original). 

 4

All eight decisions are by District Courts of Appeal. If the Florida Supreme Court has 

not addressed an issue, we look to guidance from the Florida District Courts of Appeal and apply 

those courts’ decisions absent “persuasive indication” that the Florida Supreme Court would do 

otherwise. See Flintkote Co. v. Dravo Corp., 678 F.2d 942, 945 (11th Cir. 1982). 

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Later on, the defendants moved for summary judgment on the basis of 

workers’ compensation exclusivity. Id. at 393. In response, the plaintiffs

submitted Mr. Elliott’s testimony stating that “his claim for benefits was denied in 

a letter which he subsequently received in which it was stated that there were no 

benefits due under his claim.” Id. The Elliotts were not able to locate that letter. 

Id.5

The trial court granted the defendants’ motion. Id. On appeal, the Elliotts 

argued that “there were material issues of fact existing as to whether [the 

defendants] [are] estopped from raising the exclusivity provisions of the Workers’ 

Compensation Act as a defense.” Id.

Reversing, the First District Court of Appeal explained that “[s]ummary 

judgment is particularly unsuitable in a case where the facts and circumstances 

indicate the possibility of an estoppel.” Id. The Florida appellate court declined to 

“construe the meaning of the alleged representation made by [the defendants] that 

no benefits were due claimant.” Id. at 394 (emphasis added). The court said that 

“representation could have meant, for instance, either that the Department of 

Corrections was of the opinion that there had yet been no injury shown, or that it 

had taken the position that Elliott had no right to claim benefits because the injury 

was not a covered injury.” Id. The court went on that “if [the defendants] denied 

 5

Nothing in the record suggested that the employer-state ever paid workers’ 

compensation benefits before denying the claim. See Elliott, 542 So. 2d at 393. 

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workers’ compensation coverage on the basis that Robert Elliott’s alleged injury 

was not encompassed within the Act or on the basis that he was injured under other 

situations not covered by the Act, the Elliotts were free to pursue common law 

remedies.” Id. Thus, summary judgment was inappropriate, in light of the 

existence of “genuine issues of material fact concerning the issue of estoppel.” Id. 

Specifically, that factual issue was what was the employer’s given reason for 

denying the workers’ compensation claim. See id. 

B. Byerley v. Citrus Publishing, Inc. (Fla. 5th DCA 1999)

Next was Byerley v. Citrus Publishing, Inc., 725 So. 2d 1230 (Fla. 5th DCA 

1999), where an employee, Audrey Byerley, sued her employer, Citrus Publishing,

for negligence after she sustained injuries from tripping over a bench located on 

Citrus Publishing’s property. Id. at 1231. Ms. Byerley had “punched out for the 

day” when the accident occurred. Id. The accident caused Ms. Byerley to suffer 

“a compression fracture of the vertebrae in her back, pull[] her right groin muscle, 

fracture[] her left kneecap, and suffer[] numerous abrasions.” Id. “Her total 

medical bills exceeded $30,000.” Id. 

Ms. Byerley first “filed a claim for workers’ compensation benefits which 

was denied by the employer and its workers’ compensation carrier.” Id. Citrus 

Publishing did not pay any portion of Ms. Byerley’s $30,000 medical bills or 

otherwise pay her workers’ compensation benefits. See id. 

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“The notice of denial stated: ‘Injury did not arise out [of] the course and 

scope of [Byerley’s] employment. Employee was clocked out and had exited the 

building, when she tripped over a bench on the pavement.’” Id. at 1231 

(alterations in original). After Ms. Byerley filed her tort complaint, the employer 

moved for summary judgment, asserting that “Byerley’s exclusive remedy was 

worker’s compensation.” Id. The trial court granted summary judgment for the 

employer. Id. 

Reversing, the Fifth District Court of Appeal reasoned that Citrus Publishing

“created a Hobson’s choice for Byerley: the employer, through its insurance 

carrier, denied her claim for workers’ compensation, and then, when Byerley 

elected to proceed in a tort action, argued that she could not sue because her 

exclusive remedy was the Workers’ Compensation Act.” Id. at 1232. Therefore, 

the appellate court concluded that “it would be inequitable for an employer to deny 

worker’s compensation coverage on the ground that the employee’s injury did not 

arise out of the course and scope of employment, then later claim immunity from a 

tort suit on the ground that the injury did arise out of the course and scope of 

employment.” Id. 

The Florida court reasoned that: (1) the employer had informed Ms. Byerley 

that it was denying her claim “because it did not occur in the course and scope of 

her employment”; (2) Ms. Byerley had “accepted and relied on the denial, bore her 

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medical expenses, then sued the employer in tort as permitted by the statute”; and 

(3) the “elements of estoppel are shown” and the employer was not entitled to 

summary judgment. Id. at 1232–33. 

C. Tractor Supply Co. v. Kent (Fla. 5th DCA 2007)

The third case, Tractor Supply Co. v. Kent, 966 So. 2d 978 (Fla. 5th DCA 

2007), involved an employee, Kent, who worked for Tractor Supply Co. (“TSC”). 

Id. at 979. Kent alleged that, while at work, he was exposed to hydrated lime dust, 

which can cause lung injuries and aggravate breathing disorders. Id. Kent filed a 

petition for benefits through the workers’ compensation system, and his 

employer’s insurer denied the claim, stating the condition complained of: (1) “was 

the result of a pre-existing medical condition and not the result of employment 

with TSC”; and (2) “was the result of a prior worker’s compensation claim that 

had been settled for continuing treatment.” Id. 

Kent initially pursued remedies through the workers’ compensation system. 

Id. After discovery in that forum and just before mediation, Kent voluntarily 

dismissed his workers’ compensation petition and filed a complaint in state court 

against TSC. Id. The workers’ compensation claim thus “was withdrawn before it 

was adjudicated.” Id. 

In the tort case, Kent moved for partial summary judgment on the issue of 

whether TSC was estopped from asserting workers’ compensation exclusivity as 

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an affirmative defense. Id. The trial court granted Kent’s motion and TSC 

appealed. Id. 

Reversing, the Fifth District Court of Appeal framed the issue as: whether 

the Byerley and Elliott decisions “establish that an employer such as TSC, who, 

through its comp carrier, denies a worker’s compensation claim on the basis that 

the injury or illness was pre-existing, is then estopped from asserting worker’s 

compensation immunity and exclusivity in defending against a civil tort action[?]” 

Id. at 978 (footnote omitted). The Florida appellate court held that they do not. Id.

at 980–81. 

The Florida appellate court read Byerley narrowly, stating that “Byerley

holds that expressly asserting that an injury did not occur in the scope and course 

of employment estops the employer from defending a subsequent tort action on the 

ground that the claim arose in the course and scope of employment.” Id. 

Importantly, “[i]t is not simply the denial, but rather the irreconcilable positions 

asserted, that led to the result in Byerley.” Id. The irreconcilable position in 

Byerley was the insurer claimed Ms. Byerley’s fall injury did not occur in the 

course and scope of her employment but later asserted workers’ compensation 

exclusivity when she sued. See id.

In contrast, in Kent, the Florida appellate court explained, TSC’s insurer 

“did not assert that no employment relationship existed or that the incident 

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occurred outside the scope of employment. Rather, the denial asserts that under 

the terms of the Worker’s Compensation Act, the injury is one which is not 

deemed compensable.” Id. The Florida appellate court explained that “[t]here is 

no irreconcilable conflict in the employer here raising a pre-existing medical 

condition defense to a comp claim, but asserting it is, nevertheless, insulated from 

a civil suit.” Id. at 981. To the extent that Kent objected to the insurer’s 

determination, the court held that “Kent could and should have litigated the 

defense of pre-existing injury/illness in the comp action” as “[a] pre-existing injury 

or illness is a recognized defense to a claim for comp benefits.” Id.

D. Coca-Cola Enterprises, Inc. v. Montiel (Fla. 2d DCA 2008)

Shortly thereafter, Florida’s Second District Court of Appeal decided CocaCola Enterprises, Inc. v. Montiel, 985 So. 2d 19 (Fla. 2d DCA 2008), the fourth 

case we review. In Montiel, the plaintiff “suffered a back injury while unloading 

Coca-Cola products at a Tampa Kash N’ Karry store.” Id. at 19. The appellate 

court stated that “[u]nquestionably, the injury occurred in the course and scope of 

employment.” Id. Monteil’s employer, Coca-Cola, “paid workers’ compensation 

benefits to him for twelve weeks.” Id. Coca-Cola stopped doing so upon receipt 

of medical evidence indicating “that Mr. Monteil’s condition no longer related to 

his work injury, but to a degenerative condition.” Id. at 20. Monteil “did not claim 

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further benefits under the workers’ compensation statute” and instead “sued CocaCola and Kash N’ Karry for negligence.” Id. 

In the negligence action, Coca-Cola sought summary judgment on the basis 

of workers’ compensation exclusivity. The trial court denied the summary 

judgment after the plaintiff argued that “the denial of further benefits estopped 

Coca-Cola from claiming workers’ compensation exclusivity.” Id.

Reversing, the Florida appellate court pointed out that, unlike in Elliott and 

Byerley, “Mr. Monteil’s injury was work-related. Coca-Cola never contended 

otherwise. Coca-Cola paid benefits for approximately three months. Indeed, 

Coca-Cola denied further benefits only when medical evidence indicated Mr. 

Monteil’s condition no longer related to his work injury.” Id. The court concluded 

that it was not aware of a “statutory provision that, under these circumstances, 

strips the employer of the exclusivity defense.” Id. “Had Mr. Monteil thought 

himself entitled to further benefits,” the court explained, “the statute provided a 

vehicle to seek relief.” Id. (citing Fla. Stat. § 440.192 (“Any employee may, for 

any benefit that is ripe, due, and owing, file with the Office of the Judges of 

Compensation Claims a petition for benefits which meets the requirements of this 

section and the definition of specificity in § 440.02.”)). 

E. Schroeder v. Peoplease Corp. (Fla. 1st DCA 2009)

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Our fifth case is Schroeder v. Peoplease Corp., 18 So. 3d 1165 (Fla. 1st 

DCA 2009), where plaintiff Schroeder, a truck driver, worked for Peoplease Corp. 

Id. at 1166. Schroeder was injured when he attempted to manually move a 2,000 

pound load within his trailer causing the onset of heart problems and the need for 

emergency heart surgery. Id. Schroeder filed a workers’ compensation petition. 

Id. “Peoplease controverted the entire claim and filed a notice of denial which” 

gave six reasons for denying the claim. Id. One of the reasons was “[t]he present 

condition of claimant is not the result of injury arising out of and in the course and 

scope of his or her employment.” Id. The other reasons related to whether a 

causal connection existed between Schroeder’s work and his condition and 

whether his injury was a compensable one under the statute. Id. It was undisputed 

that Peoplease had paid no benefits, either medical or lost wages, since Schroeder’s

injury in 2006. Id. at 1168.

After the denial, Schroeder commenced a civil action against, inter alia, 

Peoplease and argued that, given its denial, Peoplease could not assert workers’ 

compensation exclusivity as an affirmative defense. Id. at 1165–66. Peoplease 

sought summary judgment on the basis of workers’ compensation exclusivity. 

Peoplease filed an affidavit of its insurer’s adjuster stating that the intent of the 

denial notice was “neither to assert a lack of an employment relationship nor to 

allege that Mr. Schroeder’s incident occurred outside the scope of the employment 

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relationship.” Id. at 1167. Instead, the intent of the denial notice “was to dispute 

that Mr. Schroder’s injury was compensable.” Id. The state trial court granted

summary judgment for Peoplease. The Schroeders appealed. Id. at 1167–68. 

Reversing, the First District Court of Appeal concluded that the case was 

akin to Byerley and Elliott. The employer, Peoplease tried to distinguish Byerley

by arguing that in that case “it was clear that the employee was not in the course 

and scope of employment because she had ‘clocked out and had exited the

building, when she tripped over a bench.’” Id. at 1169. The Schroeder court 

rejected the employer’s argument that “when the facts make clear that the 

employee suffered a workplace incident, then estoppel will never apply despite 

what the employee and carrier may have said in the notice of denial.” Id. Thus, 

like in Elliott, “there remain disputed issues of material fact as to the meaning of 

the language employed in the notice of denial.” Id. at 1170. The court pointed out 

that “[s]ummary judgment is inappropriate where the wording of a document is 

ambiguous and interpretation involves questions of fact.” Id. Because “[w]hether 

estoppel is appropriate in this case and whether the employer took irreconcilable 

positions is dependent upon the meaning to be accorded the notice of denial,” the 

court reversed and remanded. Id. 

F. Coastal Masonry, Inc. v. Gutierrez (Fla. 3d DCA 2010)

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Our sixth case is Coastal Masonry, Inc. v. Gutierrez, 30 So. 3d 545 (Fla. 3d 

DCA 2010), where the plaintiff, Gutierrez, was injured while “lifting concrete 

blocks.” Id. at 547. Gutierrez filed a petition for workers’ compensation benefits 

from his employer, Coastal Masonry, and the employer’s insurer denied the claim 

“in its entirety.” Id. It was “undisputed that Coastal [Masonry] paid no benefits to 

Gutierrez.” Id. 

The notice of denial gave several reasons, specifically: (1) “[t]he claimant 

did not report the alleged injury to the employer in a timely manner”; (2) “[t]he 

present condition of the claimant is not the result of an injury by accident arising 

out of and in the course and scope of employment”; (3) “[t]here is no accident or 

occupational disease”; (4) “[t]he condition complained of is not the result of an 

injury”; (5) “[t]he claimant’s medical condition is the result of a pre-existing 

condition or disease”; and (6) “[t]he claimant’s medical condition is personal, preexisting and/or idiopathic in nature.” Id. 

After receiving the notice of denial, Gutierrez “voluntarily dismissed his 

petition and filed a negligence action against Coastal [Masonry].” Id. Gutierrez’s 

complaint alleged “that Coastal [Masonry] had denied his workers’ compensation 

claim on the basis that the accident and injuries did not arise out of his employment 

and were not covered by workers’ compensation.” Id. (internal quotation marks 

and alterations omitted). Coastal Masonry admitted this allegation “and further 

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denied that Gutierrez was a Coastal [Masonry] employee.” Id. “Notwithstanding 

[this] denial . . . , Coastal [Masonry] denied that it had waived workers’ 

compensation immunity and further asserted that immunity as an affirmative 

defense.” Id. 

Later, Coastal Masonry moved for summary judgment on the basis of 

workers’ compensation exclusivity and the trial court denied the motion and found 

that Coastal Masonry was estopped as a matter of law from asserting the defense. 

Id. Coastal Masonry appealed. Id.

Affirming, the Third District Court of Appeal held that “the record shows 

that Coastal [Masonry] has taken inconsistent positions.” Id. at 548. Specifically, 

it had “denied Gutierrez’s claim for workers’ compensation benefits stating that 

‘[t]he present condition of the claimant is not the result of an injury by accident 

arising out of and in the course and scope of employment.’” Id. Then, Coastal 

Masonry “asserted as an affirmative defense that it was entitled to the exclusivity 

defense because the accident arose in the course and scope of Gutierrez’s 

employment.” Id. The appellate court pointed out that Coastal Masonry’s 

summary judgment position was inconsistent with the position it took in the 

workers’ compensation forum and in its own answer in the case. Id. 

Having determined that the employer took inconsistent positions, the Florida 

appellate court next turned to “whether, as a matter of law, Coastal [Masonry] is 

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estopped from raising a workers’ compensation exclusivity defense.” Id. The 

court explained that the elements of estoppel are: (1) “a representation by the party 

estopped to the party claiming the estoppel as to some material fact, which 

representation is contrary to the condition of affairs later asserted by the estopped 

party”; (2) “reliance upon this representation by the party claiming the estoppel”; 

and (3) “a change in the position of the party claiming the estoppel to his 

detriment, caused by the representation and his reliance thereon.” Id. (internal 

quotation marks omitted). The court determined that “the record established the 

elements of estoppel” as Gutierrez “(1) dismissed the worker’s compensation 

claim; (2) incurred medical expenses; and (3) filed a negligence action to recover 

damages resulting from his injury.” Id. Accordingly, the appellate court affirmed 

the trial court’s conclusion that estoppel applied as a matter of law to bar Coastal 

Masonry’s workers’ compensation defense. Id. 

G. Mena v. J.I.L Construction Group Corp. (Fla. 4th DCA 2012)

Next, we turn to Mena v. J.I.L. Construction Group Corp., 79 So. 3d 219 

(Fla. 4th DCA 2012). The plaintiff, Mena, “while constructing a home, . . . fell to 

the ground from a second-floor roof truss” and “sustained multiple injuries.” Id. at 

221. Mena filed workers’ compensation claims with his employer (“J.I.L.”) and 

the sub-contractor (“Slorp”). Id. at 222. Both companies denied the claims. Id. 

Slorp’s notice of denial stated that “Mena was employed by J.I.L., not Slorp.” Id. 

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J.I.L.’s notice of denial said: (1) “There is no employer/employee relationship 

established”; (2) “Failure to report injury timely”; (3) “The 

Employer/Carrier/Servicing Agent reserves the right to these and any other 

defenses that may become apparent.” Id.

Eight months later, Mena voluntarily dismissed his workers’ compensation 

petitions and “filed suit against J.I.L. and Slorp for negligence.” Id. Both 

defendants asserted workers’ compensation exclusivity as affirmative defenses. Id. 

When defendants moved for summary judgment, “Mena argued that J.I.L. and 

Slorp should be estopped from asserting worker’s compensation exclusivity 

because of their previous denials.” Id. The trial court granted summary judgment 

to defendants, “finding that their previous ‘general denials’ were not inconsistent 

with their claims of entitlement to worker’s compensation immunity.” Id. 

Reversing as to defendant J.I.L., the Fourth District Court of Appeal 

explained that when “the language employed in the notice of denial could give rise 

to more than one interpretation, such that it cannot be fairly determined whether 

the employer’s positions are inconsistent, summary judgment is inappropriate.” Id.

at 223. The court applied this principle to the case, noting that “J.I.L’s denial 

suggested it was asserting that Mena was not its employee. At the very least, . . . 

the meaning of the language employed in the notice of denial is unclear.” Id.

(internal quotation marks omitted). Because “issues of material fact remain with 

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respect to whether J.I.L. asserted inconsistent positions and whether it should be 

estopped from claiming it is entitled to worker’s compensation immunity,” the 

court reversed “the entry of summary judgment in favor of J.I.L.” Id. 

On the other hand, the Florida appellate court affirmed summary judgment 

in favor of Slorp. Id. at 223–24. The court observed that “Slorp maintained 

consistent positions in the worker’s compensation forum and in Mena’s civil 

action.” Id. Specifically, “Slorp denied Mena’s worker’s compensation claim on

the basis that Mena was employed by J.I.L. not Slorp, and that J.I.L. had coverage. 

Slorp’s affirmative defense of worker’s compensation immunity stated that Mena 

was acting in the course and scope of employment performing work subcontracted 

by Slorp to J.I.L.” Id. 

H. Ocean Reef Club, Inc. v. Wilczewski (Fla. 3d DCA 2012) 

Most recently, in Ocean Reef Club, Inc. v. Wilczewski, 99 So. 3d 1 (Fla. 3d 

DCA 2012), two former employees (Wilczewski and Leon) of a beauty salon 

alleged that they were exposed to chemical fumes while at work, and as a result, 

had suffered “asthma-like symptoms, headaches and respiratory problems.” Id. at 

2. The employees notified their employer of their injuries, but the beauty salon 

owner, Ocean Reef, did not notify its workers’ compensation insurance carrier. Id. 

The employees “brought a civil action for damages against Ocean Reef” at which 

point Ocean Reef “notified the workers’ compensation insurance carrier of the 

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claims.” Id. The insurer “denied the claims contending that the illnesses did not 

occur in the course and scope of employment” and noting that “the statute of 

limitations had run.” Id. 

In the employees’ civil action, Ocean Reef moved for summary judgment 

“arguing that Wilczewski’s and Leon’s injuries were work-related, and that, based 

on workers’ compensation immunity, it was immune from suit as a matter of law.” 

Id. at 3. The trial court denied the motion and Ocean Reef appealed. Id. at 4. 

Affirming, the Third District Court of Appeal held that, as a matter of law, 

Ocean Reef was estopped from asserting workers’ compensation immunity. Id. 

The court reasoned that because “the carrier’s denial is absolutely clear on its face 

that the reason for the denial is ‘[n]o accident in the course and scope of 

employment,’ it is ‘clearly irreconcilable’ with the defense of tort immunity 

asserted by Ocean Reef.” Id. As the carrier’s basis for denying the claim was 

imputed to the employer, Ocean Reef could not “contend that the injuries were, in 

fact, related to work and therefore covered by workers’ compensation when it has 

clearly denied coverage on inconsistent grounds earlier.” Id. 

V. GENUINE ISSUES OF MATERIAL FACT 

These decisions make clear that, under Florida law, whether estoppel applies 

to prevent an employer from asserting the workers’ compensation exclusivity 

defense in a tort action may turn on what reasons were given for denying workers’ 

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compensation benefits. When the record reveals multiple possible explanations for 

the denial, or the language in the denial document is ambiguous and gives rise to 

more than one interpretation, issues of material fact exist over whether the 

employer’s position is inconsistent so as to indicate possible estoppel. See Mena, 

79 So. 3d at 222–23; Schroeder, 18 So. 3d at 1170; Elliott, 542 So. 2d at 393–94. 

That is the case here. Gallagher’s insurer paid Picon workers’ compensation 

for almost six months as a result of her right shoulder pain, suggesting that

Gallagher’s insurer considered the condition work-related. But when Picon 

requested the surgery recommended by Dr. Font-Rodriguez, Gallagher denied the 

request, relying on Dr. Blinn’s opinion that her right shoulder problem was not 

work-related. Gallagher on appeal argues that Dr. Blinn meant only that Picon’s 

work was not a “major contributing cause” of her right shoulder pain. 

The communications in the record between Gallagher and Picon or her 

attorney do not contain the words “major contributing cause” or otherwise clearly 

reflect this position. Further, to some extent, Dr. Blinn appeared to focus on 

medical causation by saying Picon’s injury was due to her age, diabetes, vascular 

disease, and chest pain, which may make Picon’s problems preexisting. 

On the other hand, Gallagher’s emails, viewed in the light most favorable to 

Picon, can be construed as denying the existence of an incident occurring in the 

course and scope of employment. For example, Gallagher’s attorney wrote that 

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Picon’s “shoulder condition is unrelated to her work activities.” Likewise, 

Gallagher’s senior claims representative Roth wrote that “no further shoulder 

treatment will be authorized as Dr. Blinn did not feel her shoulder complaints were 

related to her job duties.” Dr. Blinn himself wrote “it is not reasonable to state that 

using a mouse or computer at a workstation in a repetitive fashion is the reason for 

this persons [sic] right shoulder problem.” 

We do not conclude that estoppel applies here as a matter of law. We 

determine only that there were genuine issues of material fact as to what were 

Gallagher’s reason or reasons for the denial of Picon’s request for workers’ 

compensation benefits. Accordingly, the district court erred in granting summary 

judgment to the defendant Gallagher as a matter of law based on its workers’ 

compensation exclusivity affirmative defense. 

VI. CONCLUSION

For the reasons stated above, we reverse the grant of summary judgment for 

the defendant Gallagher and remand for further proceedings consistent with this 

opinion. 

REVERSED and REMANDED. 

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