The opinion
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-10839
Non-Argument Calendar
____________________
BOBBY BAKER,
Plaintiff-Appellant,
versus
ASCEND PERFORMANCE MATERIALS
OPERATIONS, LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:22-cv-05786-MCR-HTC
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2 Opinion of the Court 24-10839
____________________
Before WILSON, BRASHER, and ABUDU, Circuit Judges.
PER CURIAM
Plaintiff-Appellant Bobby Baker challenges the district
court’s ruling that his negligence claim against Defendant-Appellee
Ascend Performance Materials Operations, LLC, his former em-
ployer, is barred by the exclusivity provision of the Florida Work-
ers’ Compensation Act (FWCA), Fla. Stat. § 440.11. Baker argues
Ascend should not be shielded by “workers’ compensation exclu-
sivity immunity” because the defense conflicts with the position
Ascend took in denying his petitions for workers’ compensation
benefits. After careful review, we affirm the district court’s deci-
sion.
I.
Baker worked for Ascend for almost twenty-six years. Due
to his lung condition, Baker began a medical leave of absence be-
ginning on November 9, 2020, and was later approved for long-
term disability benefits. He was never medically cleared to return
to work and Ascend terminated his employment on May 26, 2021.
Baker previously used medical leave for his lung injuries in 2017
and 2018, but none of the medical documentation and paperwork
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24-10839 Opinion of the Court 3
supporting his 2017, 2018, and 2020 requests for leave indicated
that his condition was work-related. 1
Baker first petitioned for workers’ compensation benefits on
August 3, 2021. The petition claimed he sustained a bilateral lung
injury “due to repetitive exposure to nylon pellets and antistatic fi-
ber particles and dust” while working at Ascend’s manufacturing
facility. The claimed date of last injurious exposure was November
15, 2020, while Baker’s last day before his medical leave of absence
was November 8, 2021. Baker’s petition did not include documen-
tation or evidence to support his claim, nor demonstrate the mate-
rials he was exposed to at Ascend’s facility could have caused his
lung injuries.
Ascend denied Baker’s claim, providing the following re-
sponse: “There is no evidence of any accident or injury arising out
of the claimant’s employment. The employer/carrier reserves the
right to raise any and all defense which may be or become availa-
ble.” Ascend’s insurance adjuster testified this decision was based
on the background and timing of Baker’s medical leave relative to
his petition, the limited evidentiary support Baker provided, and
the fact that no other employees had filed similar claims.
On April 6, 2022, Baker filed a negligence action in state
court, alleging Ascend breached its duty to maintain a safe work
environment and caused his lung injuries. Baker then moved to
1 The parties stipulated to most of these facts and exhibits via email corre-
spondence.
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4 Opinion of the Court 24-10839
stay the workers’ compensation proceeding pending the outcome
of his civil claim. After that motion was denied, Baker voluntarily
dismissed his worker’s compensation petition, before the sched-
uled final hearing. Ascend timely removed to the Northern District
of Florida based on diversity jurisdiction.
On November 14, 2022, while discovery was underway,
Baker filed another petition for workers’ compensation benefits.
For a second time, Ascend denied the claim, because Baker “did not
have prolonged exposure, there was no cumulative effect resulting
in an injury and [Baker’s] employment did not expose him to a
greater risk than the average public.” Ascend maintained: “The ma-
jor contributing cause of [Baker]’s alleged symptoms, disability,
and need for treatment is the result of his personal and/or pre-ex-
isting condition.” For a second time, after Baker’s request for stay
was denied, he voluntarily dismissed his petition.
The district court granted Ascend’s motion for summary
judgment, agreeing that Ascend was immune from negligence lia-
bility because Baker’s exclusive remedy was workers’ compensa-
tion under the FWCA. The district court rejected Baker’s argument
that Ascend should be estopped from asserting this defense be-
cause: (1) Ascend’s position in the negligence action was not incon-
sistent with its positions in the workers’ compensation proceed-
ings; and (2) Baker was not prejudiced by Ascend’s positions. Baker
timely appealed.
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24-10839 Opinion of the Court 5
II.
We review a district court’s grant of summary judgment de
novo. Marbury v. Warden, 936 F.3d 1227, 1232 (11th Cir. 2019) (per
curiam). In doing so, “we view all the evidence and draw all rea-
sonable inferences in the light most favorable to the non-moving
party.” Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th
Cir. 2014). Summary judgment is proper when the evidence “pre-
sents no genuine issue of material fact and compels judgment as a
matter of law in favor of the moving party.” Id. (quotations omit-
ted).
III.
In this diversity case, we apply the substantive law of the fo-
rum state, Florida. See James River Ins. v. Ground Down Eng’g, Inc.,
540 F.3d 1270, 1274 n.1 (11th Cir. 2008). We must “decide the case
the way it appears the state’s highest court would.” Ernie Haire Ford,
Inc. v. Ford Motor Co., 260 F.3d 1285, 1290 (11th Cir. 2001) (quota-
tions omitted). If there is no Florida Supreme Court decision on
point, “we follow decisions by the intermediate appellate court of
the state except where there is strong indication that the state su-
preme court would decide the matter differently.” Chepstow Ltd. v.
Hunt, 381 F.3d 1077, 1086 (11th Cir. 2004).
Under the FWCA, workers’ compensation is the exclusive
remedy for employees who suffer an “accidental compensable in-
jury or death arising out of work performed in the course and the
scope of employment.” Fla. Stat. §§ 440.09(1), 440.11. An employee
seeking workers’ compensation benefits must file a petition with
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6 Opinion of the Court 24-10839
the Office of the Judges of Compensation Claims. See Fla. Stat.
§ 440.192. The claimant-employee bears the burden of proof to es-
tablish he is entitled to benefits. See, e.g., MBM Corp. v. Wilson, 186
So. 3d 574, 576 (Fla. Dist. Ct. App. 2016) (per curiam). If an em-
ployer denies a petition, the employee may challenge the denial at
an evidentiary hearing before an administrative judge. See Fla. Stat.
§ 440.25(4).
The “fundamental purpose” of the FWCA is “to provide
benefits for work place injuries in place of common law remedies.
Taylor v. Sch. Bd. of Brevard Cnty., 888 So. 2d 1, 5 (Fla. 2004) (per
curiam). In the FWCA’s no-fault system, “the employee gives up a
right to a common-law action for negligence in exchange for strict
liability and the rapid recovery of benefits.” Turner v. PCR, Inc., 754
So. 2d 683, 686 (Fla. 2000). Employers are generally immune from
liability in negligence suits brought by their employees. Jones v.
Martin Elecs., Inc., 932 So. 2d 1100, 1104 (Fla. 2006) (per curiam).
But, where injuries do not occur within the course and scope of
employment, “the employee is free to pursue his or her common
law remedies.” Mena v. J.I.L. Const. Grp. Corp., 79 So. 3d 219, 222–
23 (Fla. Dist. Ct. App. 2012) (quotations omitted).
Here, Baker alleges that he was exposed to the substances
which caused his lung injury while he was working in Ascend’s
manufacturing facility. Workers’ compensation is presumptively
his exclusive recourse against his former employer for these inju-
ries. See Fla. Stat. § 440.11(1); Locke v. SunTrust Bank, 484 F.3d 1343,
1347 (11th Cir. 2007). But Baker argues Ascend should be estopped
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24-10839 Opinion of the Court 7
from raising workers’ compensation exclusivity as an affirmative
defense in his tort suit after it denied his petition for workers’ com-
pensation benefits.
An employer may be equitably estopped 2 from raising a
workers’ compensation exclusivity defense if the plaintiff can
show: (1) the employer made a representation of material fact con-
trary to its later-asserted position; (2) the plaintiff relied on that rep-
resentation; and (3) the plaintiff’s reliance on the representation
caused him to detrimentally change his position. Specialty Emp.
Leasing v. Davis, 737 So. 2d 1170, 1172 (Fla. Dist. Ct. App. 1999)
(quoting Dep’t of Revenue v. Anderson, 403 So. 2d 397, 400 (Fla.
1981)). Florida courts have recognized that “an employer may be
equitably estopped from raising a workers’ compensation exclusiv-
ity defense if the employer denies the employee’s claim by assert-
ing that the injury did not occur in the course and scope of his or
her employment.” McNair v. Dorsey, 291 So. 3d 607, 609–10 (Fla.
Dist. Ct. App. 2020) (quotation marks omitted).
Judicial estoppel is a narrow exception to workers’ compen-
sation exclusivity immunity, which Florida courts apply “with
great caution.” Bottling Grp., LLC v. Bastien, 390 So. 3d 177, 181–82
(Fla. Dist. Ct. App. 2024) (quotations omitted); cf. Taylor, 888 So. 2d
2 The doctrine of estoppel is “firmly established in the jurisprudence of Flor-
ida.” Quality Shell Homes & Supply Co. v. Roley, 186 So. 2d 837, 840–41 (Fla. Dist.
Ct. App. 1966). Florida courts have defined “estoppel” as “the preclusion of a
person from asserting a fact by previous conduct inconsistent therewith.”
Coogler v. Rogers, 7 So. 391, 394 (Fla. 1889).
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at 5. Employers are not foreclosed from claiming immunity simply
because they denied benefits or asserted a defense in the workers’
compensation proceeding. Gil v. Tenet Healthsystem N. Shore, Inc.,
204 So. 3d 125, 127 (Fla. Dist. Ct. App. 2016). The employer must
assert “clearly irreconcilable” positions in the two forums. Ocean
Reef Club, Inc. v. Wilczewski, 99 So. 3d 1, 4 (Fla. Dist. Ct. App. 2012)
(quotation marks omitted).
The analysis hinges on what reasons the employer gave for
denying benefits. 3 See, e.g., Mena, 79 So. 3d at 223. When the em-
ployer or carrier’s denial is “absolutely clear on its face that the rea-
son for denial is ‘no accident in the course and scope of employ-
ment,’ it is ‘clearly irreconcilable’ with the defense of tort immun-
ity.” Ocean Reef Club, Inc., 99 So. 3d at 4 (alteration adopted). Em-
ployers cannot “claim that the employee doesn’t belong in a com-
pensation forum because the accident was not work-related, and
then turn around and claim that the employee must be in a com-
pensation forum because the accident was work-related.” McNair v.
Dorsey, 291 So. 3d 607, 611 (Fla. Dist. Ct. App. 2020).
3 For example, employers have been estopped from claiming immunity after
asserting: (1) the claimant was not their employee, Coastal Masonry, Inc. v.
Gutierrez, 30 So. 3d 545, 548 (Fla. Dist. Ct. App. 2010); (2) the accident occurred
after the employee clocked out and left the building for the day, Byerley v. Cit-
rus Publ’g, Inc., 725 So. 2d 1230, 1231 (Fla. Dist. Ct. App. 1999); or (3) the acci-
dent occurred “off premises.” Bottling Grp., LLC v. Bastien, 390 So. 3d 177, 179
(Fla. Dist. Ct. App. 2024). But, in McNair v. Dorsey, the employer’s position that
“no compensable accident” had occurred at all was not inconsistent with its
later position that any injury alleged would have occurred in the course and
scope of employment. 291 So. 3d 607, 610 (Fla. Dist. Ct. App. 2020).
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Employers are “entitled to litigate whether a compensable
accident occurred in a compensation forum” without waiving im-
munity. Id. Although workers’ compensation benefits are payable
irrespective of fault, they are not payable irrespective of cause. Nor-
mandy Ins. v. Bouayad, 372 So. 3d 671, 680 (Fla. Dist. Ct. App. 2023).
The FWCA provides a procedure to resolve evidentiary and causa-
tion disputes, see Fla. Stat. § 440.192, as part of its “comprehensive
process for consideration of claims against employers relating to
on-the-job injuries sustained by their employees,” Tractor Supply
Co. v. Kent, 966 So. 2d 978, 982 (Fla. Dist. Ct. App. 2017).
It is the employee’s burden to establish a causal connection
between the employment and the alleged injuries. See Normandy
Ins., 372 So. 3d at 677–78. Claimants must not only show they were
“actively engaged in a work-related activity at the time of the acci-
dent,” but that the “activity was the major contributing cause of
the accident and resulting injury.” Walker v. Broadview Assisted Liv-
ing, 95 So. 3d 942, 943 (Fla. Dist. Ct. App. 2012) (per curiam). For
“conditions that are not readily observable” establishment of a
causal relationship “must be by medical evidence only.” Fla. Stat.
§ 440.09(1). Until the claimant satisfies this burden, the employer
has no obligation to produce evidence disproving the claim or sup-
porting an affirmative defense. City of Titusville v. Taylor, 288 So. 3d
731, 736 (Fla. Dist. Ct. App. 2019).
Here, Baker claims he was injured due to exposure to air-
borne materials while he was working in Ascend’s manufacturing
facility. As the district court noted, Ascend’s denials in the workers’
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compensation forum were not the equivalent of saying his injuries
did not occur while on the job. Ascend has never disputed it had an
employment relationship with Baker, nor that any injury-causing
exposure would have occurred while Baker was working at Ascend’s
manufacturing facility. Instead, Ascend raised evidentiary and cau-
sation issues which could be fairly and fully litigated in the workers’
compensation proceedings.
Ascend’s first denial stated that there was “no evidence of any
accident or injury arising out of the claimant’s employment.” The
FWCA specifies: “Arising out of” refers to “occupational causa-
tion.” Fla. Stat. § 440.02 (4). “An accidental injury or death arises out
of employment if work performed in the course and scope of em-
ployment is the major contributing cause of the injury or death.”
Id. The “mere occurrence of an injury at work” is not enough. Stra-
tegic Mktg. Sys. v. Soranno, 559 So. 2d 353, 354 (Fla. Dist. Ct. App.
1990) (citing S. Bell Tel. & Tel. Co. v. McCook, 355 So. 2d 1166 (Fla.
1977)). Regardless of the type of injury, “compensability always
turns on whether the employment led to the risk—whether there
was ‘occupational causation.’” Sedgwick CMS v. Valcourt-Williams,
271 So. 3d 1133, 1136 (Fla. Dist. Ct. App. 2019).
Relevant here, an injury or disease caused by exposure to a
toxic substance “is not an injury by accident arising out of the em-
ployment unless there is clear and convincing evidence establishing
that exposure to the specific substance involved, at the levels to
which the employee was exposed, can cause the injury or disease
sustained by the employee.” Fla. Stat. § 440.02(1). This heightened
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causation standard, “cannot be satisfied with evidence that only
minimal exposure to a toxic substance can cause harm and that it
is possible the toxic substance was present on the work site.” City
of Titusville, 288 So. 3d at 736.
Ascend was entitled to contest whether Baker presented suf-
ficient evidence to establish his injury “arose out of” his employ-
ment in a workers’ compensation forum without waiving its tort
immunity Cf. Coca-Cola Enterprises, Inc. v. Montiel, 985 So. 2d 19, 20–
21 (Fla. Dist. Ct. App. 2008). It was neither ambiguous nor incon-
sistent for Ascend to assert there was “no evidence” showing “oc-
cupational causation” and later defend itself in his negligence suit
by claiming that any injury-causing exposure would have been sus-
tained in the course and scope of Baker’s employment.
Without clear and convincing evidence connecting the work
he performed for Ascend to his injuries, Baker’s exposure injury,
by definition, did not “arise out of employment.” see Fla. Stat.
§ 440.02(1). Baker had, in fact, provided no evidence of “occupa-
tional causation.” His petition for benefits did not include medical
reports, documentation, or any other evidence demonstrating a
causal link between Baker’s lung condition and the particulates at
Ascend’s facility. Even in the process of requesting medical leave,
Baker’s documentation never stated his employment caused his
condition. At most, Baker told Ascend’s medical department his
doctor thought it “might be,” related to his work. Although they
had no burden to disprove Baker’s claims, Ascend’s medical office
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determined it was unclear the substances to which Baker was ex-
posed even could have caused his lung injuries.
Ascend’s second denial similarly, but more specifically dis-
puted the cause of Baker’s exposure injuries. It said, “The major
contributing cause of [Baker’s] alleged symptoms, disability and
need for treatment is the result of his personal and/or pre-existing
condition.” Again, this denial does not assert that Baker was not
Ascend’s employee or that any exposure would have occurred out-
side the scope of employment. Ascend consistently took the posi-
tion that Baker failed to establish that the nylon particles he was
exposed to, at the levels to which he was exposed, could have caused
his injuries, let alone that his exposure in the course and scope of
his employment at Ascend’s manufacturing facility was “the cause
which is more than 50 percent responsible for the injury as com-
pared to all other causes combined.” Fla. Stat. § 440.09(1). These
issues could have been resolved in a workers’ compensation forum,
where Baker could have presented evidence in not one, but two
scheduled hearings. Instead, he voluntarily dismissed those peti-
tions before those hearings took place.
Baker attempts to elude the clear language of the FWCA
with a misguided attempt at statutory interpretation. He claims the
district court erred in treating the requirements that a work-related
injury “arise out of” and “occur in the course of” employment sep-
arately. He criticizes the district court’s reliance on Locke v. Sun-
Trust Bank, 484 F.3d 1343 (11th Cir. 2007) because it cites cases de-
cided before the definition of “arising out of” was codified in 1994.
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See Fla. Stat. § 440.02(4). In his view, if an employer denies that an
injury “arises out of employment” they are denying both that the
accident occurred within the course and scope of employment and
that the accident was the major contributing cause of the injury.
Florida courts apply the phrases “arising out of” and “in the
course of” conjunctively. See, e.g., Sentry Ins. v. Hamlin, 69 So. 3d
1065, 1070 (Fla. Dist. Ct. App. 2011). For “decades” the Florida Su-
preme Court has recognized that claimants must “show that the
accident or injury happened not only in the course of his employ-
ment but arose out of it.” Silberberg, 335 So. 3d at 154 (internal quo-
tations omitted and alteration adopted) (collecting Florida Su-
preme Court cases). The phrase “arising out of” refers to the origin
of the cause of the accident, while the phrase “in the course of one’s
employment” refers to the time, place and circumstances under
which the accident occurs. Normandy Ins., 372 So. 3d at 677. “The
requirements are distinct and are to be established separately.” Id.
n.1
The 1994 amendments did not alter this analysis. Under the
new definition of “arising out of,” the claimant must establish both
that they were (1) performing work in the course and scope of em-
ployment at the time of the accident or injury; and (2) the work
performed in the course and scope of employment was the major
contributing cause of the accident or injury. Vigliotti v. K-mart Corp.,
680 So. 2d 466, 467–68 (Fla. Dist. Ct. App. 1996). While the new
definition adopted “in the course and scope of employment” as an
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14 Opinion of the Court 24-10839
element of occupational causation, it did not alter prior case law
interpreting the phrase. Id. at 468.
Instead, the “course and scope of employment” continues to
define the “work performed” that the injury must “arise out of.”
Sentry Ins., 69 So. 3d at 1070. Injuries, “even those undoubtedly suf-
fered in the course and scope of employment” are not compensable
without demonstrating employment is also the major contributing
cause. Id. Otherwise, “the statutory requirement that the injury
‘arise out of employment’ would be eliminated.” Hernando Cnty.
Sch. Bd. v. Dokoupil, 667 So. 2d 275, 276 (Fla. Dist. Ct. App. 1995).
As Ascend never disputed that the “time, place and circum-
stances” of any injury-causing exposure would have been while Baker
was working in its manufacturing facility, it has not denied that
Baker’s injuries occurred in the course and scope of employment.
Instead, Ascend consistently took the position that Baker presented
no evidence that exposure in the course and scope of his employ-
ment was the occupational cause of his injuries—an issue the work-
ers’ compensation forum routinely resolves. While are sympa-
thetic to the “Herculean task created by the heightened burden of
proof for toxic exposure claims [under the FWCA],” City of Ti-
tusville, 288 So. 3d at 737, we cannot allow Baker to bypass the
FWCA’s clear requirements and sue in tort.
* * *
Because Ascend’s positions in the workers’ compensation
forum were not clearly irreconcilable with its exclusivity immunity
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24-10839 Opinion of the Court 15
defense, the district court’s grant of summary judgment is AF-
FIRMED.