Recently, quite a few clients have expressed concerns over Claimant attorneys pursuing Aguilera claims against them.  What is an “Aguilera claim?”  There is a lot of misinformation out there and words like “intentional tort” and bad faith get bandied about.  Usually, it is by Claimant attorneys looking to pressure claims professionals.
 
Claims professionals are worried that they could be sued for bad faith for simply getting an IME or denying a medical benefit they believe is non-compensable.  My hope here is clear the air and objectively inspect what are the potential liabilities (if any)are  for an adjuster.
 
 
The term “Aguilera” claim” refers to a Florida Supreme Court case, Aguilera v. Inservices, Inc.   The Aguilera case came out in 2005 and rocked the industry.   In simple terms, the case stands for the premise that a Claimant can sue an W/C insurance adjuster for intentional infliction of emotional distress.   This is shocking because s. 440.11(4) gives Employers and Carriers is afforded exclusive liability to only Workers’ Compensation and not other torts, like negligence and especially not intentional torts (gross negligence being an exception for Employer actions that cause injury to an employee). 
 
Many Claimant attorneys viewed Aguilera as a revival of the old bad faith statute.  In that statute an E/C commits bad faith by simply delaying treatment even if there was no intention to do so.  A Claimant attorney could collect fees, under s. 440.34, for proving bad faith.  Under Aguilera, the fee payoff could be huge considering the possibility of intentional infliction of emotional distress.
 
What is intentional emotional distress?
 
Well, in order to state cause of action for intentional infliction of emotional distress, plaintiff must demonstrate the following: (1) that defendant acted recklessly or intentionally; (2) that defendant’s conduct was extreme and outrageous; ( 3) that defendant’s conduct caused plaintiff’s emotional distress; and (4) that plaintiff’s emotional distress was severe. 
 
In Auguilera, the Claimant alleged that the Carrier’s actions (independent of his compensable accident) created new injuries as a result of their behavior.  It is important to detail the Carrier’s behavior because I know of no claims professional or Carrier that would act this way.  The actions here are reprehensible and are no way in line with common claim adjusting.   In Aguilera, Claimant suffered a compensable accident where he endured internal bodily injuries that punchtured his bladder and intestines.
 
Here are just some of the things the Carrier did:
  1. Cancelled medical testing at the last minute when Claimant had a ruptured his bladder and colon.
  2. Denied emergency care after all doctors opined the injuries compensable and Claimant’s urine contained feces!
  3. The Carrier’s nurse case manager attended the Carrier’s IME without telling Claimant attorney and coerced Claimant to lie to his attorney about her presence.
  4. At said IME, the nurse case manager forced Claimant to undergo painful medical tests that was contraindicative of his medical condition.
  5. After 10 months of the Claimant urinating feces, the Carrier authorized “emergency” surgery.

Once again, all of these facts are really bad and are no way indicative of common claims handling.   The Supreme Court ultimatel found that Mr. Aguilera could sue his W/C Carrier for causing additional damages. 

But, it is important to differentiate with what happened in Aguilera and what is proper claims handling.   Simply denying claim because there is evidence of pre-existing contrubiting causes is not an Aguilera claim.  Getting an IME to find to support your defense is not an intentional tort.  Missing the 3-day rule or even the 10-day rule does not expose you to a bad faith claim.  Simply forgetting to pay certain benefits does eliminate the Carrier’s immunity under 440.11(4).

The Aguilera Court was quick to distinguish these type of scenarios from what happened to Mr. Aguilera.  These common actions, either in defending from liability or major contributing cause or accidently failure to authorize does not rise to the level of Aguilera.  What happened there was intentional and a jury could interpret those actions as malicious. 

When a claims professional doubts a doctor’s opinion on causation, that is not “bad faith” or an intentional tort.  Its called doing her job.  Don’t let a Claimant attorney scare you with threats of an Aguilera claim.  The actions in that case or beyond the pale of what occurs in 99.999999% of claims handling.

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