Injured on the Job in Florida, What Rights Do You Have? - Part 6

5) Death Benefits. If death results within one year after a work accident or follows continuous disability and results within five years of the date of accident, the employer or insurance company must pay Death Benefits to family members of the deceased worker who were dependent upon him or her for support. These benefits are limited to a total of $150,000. Florida Statute 440.16 sets out the manner and method of payment, which takes into consideration various factors such as whether the deceased was survived by a spouse and or children, whether the surviving spouse remarries, and dependency upon the deceased for support. Under certain circumstances even parents, brothers, sisters, and grandchildren may have a claim. In addition to the money benefits, the employer and carrier are responsible for up to $7,500 in funeral expenses and post-secondary student fees for the surviving spouse to obtain additional education and training (up to 1,800 classroom hours or payment for up to 80 semester hours at any community college).

Other Claims Related to a Work Accident

Often, the first question I hear a client ask me after I explain the Workers' compensation benefits system to them is, "Can I sue my employer or co-employees for this accident?". Usually, the answer is "no" because the law provides both the employer and co-employees with immunity from being sued for acts of negligence (see F.S. 440.11). The immunity is not absolute, and the employer is not immune from conduct that is considered an intentional tort. To prove an intentional tort was committed by the employer, the injured worker must prove by clear and convincing evidence that: 1) The employer deliberately intended to injure him; or 2) That the employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

As you can see, the lawmakers in Florida have made it extremely difficult to sue the employer. There are, however, a number of specific situations where the immunity does not apply. Regarding fellow-employees, there is no immunity for a worker who acts with willful and wanton disregard for the safety of another worker or physically assaults another worker. Additionally, there is no fellow-employee immunity where each employee working for the same employer is assigned primarily to unrelated work. Another exception to the immunity rule is the situation where one employee is engaged in horseplay and accidentally injures another worker. The reason there is no immunity in that instance is because the conduct of the employee engaged in horseplay is not considered to be within the course and scope of employment (meaning the conduct does nothing to further the employer's interest). Only employees who are acting within the course and scope of their employment are entitled to share in the employer's immunity.

Sometimes the work accident is caused by a third party (not the employer or co-employees). A typical example is the delivery driver who, while making a delivery for his company, is struck from behind by another driver on the road. The delivery driver has both a workers' compensation case (because he was involved in an accident while on the job) and a third party automobile accident claim against the negligent driver. In these situations a worker has the right to recover additional damages that Workers' compensation does not pay at all (eg., past, present and future pain and suffering), or completely (all lost wages past and future, etc.). Florida law allows the workers' compensation insurance company to recover some of the money they pay out for benefits to the injured worker out of the settlement or verdict against the third party. This is often referred to as the Worker's Compensation Lien. The formula for calculating this lien is a bit too complex for this article. A knowlegable attorney can usually negotiate the lien down substantially, leaving the injured worker with more money. Other common examples of third party claims are situations where a worker travels to anothers property and suffers an accident and injuries due to the dangerous condition of the property (ie. a delivery person falls in a hole that the property owner knew about but failed to correct or an equipment servicer slips on a wet floor because the owner forgot to post notice or clean up a spill). Experienced attorneys will evaluate these possible third party claims when conducting the initial interview to represent a new client.

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