Only Carrier or Comp Judge Can Determine Compensability, Fla. Appeals Court Says

July 3, 2025

An employee cannot file a tort lawsuit against her employer until after it has been determined that she is not eligible for a workers’ compensation claim. And that compensability determination can only be made by an insurer or a compensation judge, a Florida appeals court has ruled.

In Steak ‘n Shake vs. Spears, Florida’s 5th District Court of Appeals overturned a Brevard County Circuit Court’s ruling in a case that involved a robbery of the restaurant and a server who said she was traumatized but not physically injured by the incident.

“We conclude that the structure and language of the workers compensation statutes require that a determination of compensability must first be made before resorting to tort lawsuits,” the appeals court panel wrote.

The circumstances of the claim were unusual and had never been addressed by Florida courts, including the 1st District Court of Appeals, which hears most workers’ compensation appeals, the 5th DCA judges noted. The National Council on Compensation Insurance this week included the case in its court case update.

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