Gallagher Bassett worker can proceed with tort claim for shoulder injury

A Florida employee of Gallagher Bassett Services Inc. can proceed with a tort claim against her former employer after the company argued her shoulder injury was unrelated to her job, the 11th U.S. Circuit Court of Appeals in Atlanta ruled Tuesday.

Elizabeth Picon worked as a claims supervisor in Gallagher Bassett's Miramar, Fla., office from December 1991 to September 2012, court records show. She experienced shoulder pain that became “debilitating” by February 2012, and her condition was diagnosed as tendonitis caused by working at a computer.

Ms. Picon filed a workers compensation claim, and Gallagher Bassett paid benefits while referring Ms. Picon to physical therapy sessions, records show. An orthopedist found that Ms. Picon suffered from right shoulder adhesive capsulitis, and an orthopedic surgeon found that she needed “surgery ASAP.”

Another orthopedic surgeon who conducted an independent medical evaluation found that Ms. Picon's shoulder injury was unrelated to her work and could have been caused by the fact she had diabetes, records show. Based on that examination, Gallagher Bassett denied payment for a surgery that had been prescribed for Ms. Picon's shoulder.

Ms. Picon voluntarily withdrew her workers comp petition in September 2012 and filed a tort complaint against Gallagher Bassett in Florida's Miami-Dade County Circuit Court, claiming that Gallagher Bassett was negligent in denying comp benefits to her, records show. She also paid out of pocket for two surgeries on her right shoulder.

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Gallagher Bassett argued in court filings that Ms. Picon's lawsuit should be dismissed based on workers comp exclusive remedy provisions, records show. However, Ms. Picon countered that her tort claim should proceed because Gallagher Bassett deemed her shoulder injury to be unrelated to work.

The U.S. District Court in Miami ruled in Gallagher Bassett's favor in June 2013, and Ms. Picon appealed, records show.

In a unanimous unpublished ruling Tuesday, a three-judge panel of the 11th Circuit found that Ms. Picon could proceed with her tort claim against Gallagher Bassett. In its opinion, the court said the reasons for Gallagher Bassett's denial of Ms. Picon's claim varied over time, creating a question of fact over whether Ms. Picon's claim could be considered work-related.

“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,” the ruling reads. “But when Picon requested the surgery recommended by (her treating surgeon), Gallagher denied the request, relying on (an) opinion that her right shoulder problem was not work-related. Gallagher on appeal argues that (the independent medical examiner) meant only that Picon's work was not a 'major contributing cause' of her right shoulder pain.”

The case was remanded to the district court for further proceedings.