Injured on the Job in Florida, What Rights Do You Have? - Part 7

There are limitations as to which third parties an injured worker can sue. If the injured workers' employer is a general or sub-contractor working together with other sub-contractors then all of the contractors and their employees receive the immunity (unless the accident was caused by the gross negligence of the other contractors' employee. See F.S. 440.10). For example, if a worker gets hurt on a construction job because one of the employees of another sub-contractor is negligent, the only remedy for the injured worker is Workers' compensation benefits. Even though the other worker who caused the accident is not the injured worker's co-employee, the law now provides immunity for contractors who are engaged in a common enterprise if the sub-contractor or general contractor purchased Workers' compensation coverage. Conversely, there is no immunity if the employer of the negligent worker and the general contractor do not have Workers' compensation. Likewise, if an employee is hurt because of the negligence of his own employer and that employer fails to purchase Workers' compensation insurance when required by law, the injured worker has the right to choose his remedy. He can elect to seek benefits under the Florida Workers' Compensation Law against his uninsured employer or sue the employer if some negligence on the part of the employer or co-employees caused the accident. If he elects to pursue a lawsuit, the employer is actually penalized by the law for failing to have the required insurance because the employer can not raise as a defense that the injury was caused by negligence of a fellow employee, that the employee assumed the risk of the employment, or that the injury was due to the comparative negligence of the employee (see F.S. 440.11).

Sometimes, an officer or director of a company will elect not to be included in the Workers' compensation coverage purchased by their company (or may elect not to carry coverage if not required by law). In that case, there is no immunity for those individuals either. Again, like so many other Workers' compensation issues, immunity is a highly complex and heavily litigated subject. Even many experienced personal injury attorneys are unaware of the issues involved.

Lastly, under this topic, I will discuss the claim that an injured worker may have against his own employer where the employer chooses to intimidate or fire the worker for making a Workers' Compensation claim. Florida Law does not allow an employer to retaliate against a worker who makes a claim for Workers' compensation benefits because of an accident on the job. The actual Statute, F.S. 440.205, is quite short and simply states as follows:

Coercion of employees.--No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law.

Employers will often disregard this law and come up with phony reasons to fire the injured worker anyway. Sometimes the employer will simply harass the worker by reassigning him or her to other work or work schedules to make things difficult for the worker in hopes that he will just quit. When a worker can prove that the employer has wrongfully discharged him or her for making the Workers' compensation claim, the damages they may recover include: lost wages past and future; money for mental and emotional distress and punitive damages (money to punish the employer for breaking this law). Not only is it illegal for an employer to fire an injured worker for making a Workers' compensation claim, it is also illegal for an employer to refuse to hire a worker because of having made such a claim.

The Author, Charles E. Bloom, Esq., is the founding partner of Bloom & Kinnear, a Law Firm dedicated to the representation of accident and injury victims in South Florida since 1984. Mr. Bloom has 27 years experience practicing in the fields of Workers' Compensation, Personal Injury, Automobile Accident, Premises Liability, Wrongful Death, Brain Injury and all Serious and Catastrophic Accident Injury Claims. In addition to a trial practice, Mr. Bloom has represented clients in Appellate matters before the First, Third and Fourth District Courts of Appeal. The Firm accepts cases in Miami-Dade, Broward, Monroe and Palm Beach Counties.