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Overcoming Florida’s Workers’ Comp bar

Can I sue my employer if I am injured on the job? In most cases, no, but you have options.

An employee is barred from suing their employer and coworkers for on-the-job injuries involving ordinary negligence. Under Florida’s workers’ compensation system, both the employee and his or her employer give up certain rights in order to facilitate quick and efficient outcomes resulting from incidents involving on-the-job injuries. Florida employers are required by law to provide, and to secure, payment of benefits to an injured employee, or to his or her medical providers, for damages, including lost wages, medical expenses, disability, and/or death benefits. Therefore, most work-related accidents will be addressed by workers’ compensation laws. Damages under workers ‘comp are very limited and most of the time will not completely and fairly compensate your or your loved one for their injury.  Under workers’ comp, you are not entitled to past and future pain and suffering and the compensation for death is limited to $7,500 for burial expenses and $150,000 paid to survivors, in installments. The system is designed to limit recoveries and does not come close to adequately compensating those who have suffered serious injury or families who have lost a loved one.

You must consider the following exceptions or scenarios if you are injured on the job or before you consider settling your or your loved one’s workers’ comp claim:

  • Injured due to the negligence of a third party while on the job. For example, if you drive for a company and you are rear-ended while you are at a stop, you can bring claim against the negligent third party driver.
  • Workers’ comp claim denied. The employer improperly denies your workers’ comp claim in bad faith. There are several statutory defenses an employer may claim to deny your claim for benefits.  Common denials are: course and scope defense — employee was not actually injured on the job,  intoxication due to alcohol, drugs, or medication, fraud/misrepresentation, or failure to give the employer timely notice within 30 days of the injury. If the employer’s insurance carrier arrives at the incorrect conclusion in denying a claim, you may be able to bring a civil lawsuit.
  • The employer’s wrongful conduct rises to the level of an “intentional tort.” This exception is extremely fact specific and the legal burden creates an almost impossible hurdle to overcome. In order to qualify under this exception, the employee must satisfy the following elements:
    1. the employer engaged in conduct that the employer knew, based on similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee;
    2. the employee was not aware of the risk because the danger was not apparent; and
    3. the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.
  • Injured due to the actions of a co-worker. Florida’s workers’ comp laws prohibit you from suing a coworker for ordinary negligence. There is an exception for gross negligence. Gross negligence is defined as an act or omission that a reasonable, prudent person would know is likely to result in injury to another. This may be your path of least resistance to proper compensation. An employer is vicariously liable for the actions of their employees performed in the course and scope of their job. While the grossly negligent coworker will likely not have any insurance or assets to fully compensate you, the employer’s insurance policy often provides coverage.  As part of the basic workers’ comp insurance called Employers’ Liability Coverage (Coverage B), provides: Bodily Injury By Accident – $100,000 each accident.
  • If the property is owned by someone other than the employer, and there was negligence associated with the property owner’s maintenance or care of the property, you may have a cause of action for injuries against the property owner. In Florida, property owners have a non-delegable duty to safely maintain their property. The property owner cannot escape liability just because they leased the property to the employer.
  • The employer failed to carry workers’ comp insurance. The employer failed to comply with Florida’s workers’ comp law and you may proceed with a civil lawsuit.
  • Injured by defective equipment or a defective product. You may have a claim against a negligent third party that contributed or caused your injury and you can sue the manufacturer.

Please contact Ryan Fletcher if you or a loved was injured or passed away while on the job.

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