Army Men

You may have heard the term “affirmative defense” used loosely in seminars or case law updates. However, you may not be completely aware of the legal definition and legal impact associated with this term.
The legal dictionary defines affirmative defense as, “A new fact or set of facts that operates to defeat a claim even if the facts supporting that claim are true”. Simply put in workers’ compensation terms, it’s a “Yes, but…” response to a claim. For example, it may be true that the claimant had an initially compensable accident and sustained a loss of earnings thereafter. However, it may also be true that the claimant, despite knowledge of the statute of limitations, let it expire. In this case, by raising the statute of limitations defense, the employer/carrier is raising an affirmative defense.

The Florida Rules of Civil Procedure are quite strict regarding the timeliness of asserting affirmative defenses. With some defenses, like the statute of limitations defense above, if the defense is not raised in the very first response to the claim, it is forever waived. (See FRCP 1.110(d)). Additionally, Workers’ Compensation Rule of Procedure 60Q-6.113 (2) (h) states in pertinent part: “Any affirmative defense, must be raised with specificity, detailing the conduct giving rise to the defense…failure to plead with specificity shall result in a striking of the defense.” Thus, how an affirmative defense is worded, and when it is asserted are both vitally important.
There are several defenses we regularly utilize that have been deemed to be affirmative by local JCC orders and DCA case law. The common procedural affirmative defenses include but are not limited to:

1. The Statute of Limitations has run.
2. The employee failed to give proper Notice under 440. 185 (1).
3. There is no coverage for this (employer, claimant, date of accident, etc).

Likewise, there are several substantive defenses we often use that are affirmative, meaning if the employer/carrier response is not adequately specific, the defense will be stricken. These defenses include but are not limited to the following:

1. The major contributing cause standard cannot be met.
2. Apportionment applies.
3. The injury is idiopathic.
4. The claimant has committed fraud.
5. Martin v. Carpenter applies.
6. The claimant has voluntary limited his income.
7. The deemed earnings provision applies.
8. The Daubert evidentiary standard has not been met.
9. The injury was occasioned primarily by drugs/alcohol.
10. The claimant was fired for cause.

As a word of caution, keep in mind that without adequate evidentiary support to a defense, the employer/carrier can owe attorney’s fees, even if they prevail on the underlying issue. Chery v. SE Services, 644 So. 2d 148 (Fla. 1st DCA 1994) confirms that an “award” under Section 440 does not have to be “monetary” or “tangible”. Therefore, the act of simply “saving” the claimant from a carrier defense can incur hourly fees and costs.
For the reasons above, it is vital to consult your defense attorney on each issue, prior to filing a response in any form. Failure to timely and specifically assert affirmative defenses will waive the defenses forever.