Serious Injuries and Workers' Compensation Immunity
Serious Injuries And Workers’ Compensation Immunity Every year, hundreds of construction workers are killed and tens of thousands are injured – many very seriously – in work-related accidents.
It comes as a surprise to many workers and their families that in the majority of cases, they are prohibited from filing a lawsuit against their employer. The reason has to do with the workers’ compensation exclusive remedy provision, as codified in F.S. 440.11, Exclusiveness of Liability.
Construction injury lawyers at Associates and Bruce L. Scheiner, Attorneys for the Injured, know workers’ compensation is typically not the only remedy available to construction workers who have been severely injured on-the-job. However, it is usually the only remedy against the employer.
Any additional remedy will come from a third-party insurance settlement, lawsuit or public benefits, such as Social Security Disability Insurance.
Workers’ compensation is the result of a deal struck between workers and employers. At the beginning of the Industrial Revolution, workers agreed they would give up their right to sue their employers. But in exchange, if they were injured at work, the employer would cover the cost of medical bills and enough of their wages to help them get by while they recovered. There are also death benefits paid to families of workers killed on the job.
Unfortunately, as a 2015 report by the Occupational Health & Safety Administration detailed, these protections have been greatly eroded by state legislatures in recent years. In the report, “Adding Inequality to Injury: The Costs of Failing to Protect Workers on the Job,” OSHA detailed how employer-subsidized work-injury programs have been significantly slashed, and even went so far as to call the system “broken.”
Another recent report by ProPublica called “The Demolition of Workers’ Compensation,” also explains how just in the last decade, 33 states – including Florida – have passed laws pertaining to workers’ compensation that make it more difficult for those with certain injuries or diseases to qualify.
In Florida since 1994, legislators have reduced benefits to our most severely disabled workers by 65 percent. There are also heightened standards of causation for workers with occupational illness or repetitive stress injuries, the essential elimination of psychiatric claims, and very low caps on workers’ compensation attorney fees.
All of this is not to say workers’ compensation is not worth pursuing. Often, it is and it’s a lifeline for many families. But securing it is far tougher today than it used to be, and that’s why it’s imperative to have an experienced law firm on your side.
In part because these benefits and access to them have been so significantly reduced, and because exclusive remedy bars further legal action against employers, it becomes necessary in a lot of cases involving serious injury to explore third-party litigation.
On a construction site, that can mean analysis of liability by the general contractor, subcontractors, property owners, property managers, engineering and design firms, equipment and other product manufacturers and others like passing motorists or those who have committed a crime resulting in injury.Exceptions to Exclusive Remedy
There are really only two exceptions to the exclusive remedy provision under workers’ compensation law in Florida, and those are failure to secure workers’ compensation insurance or intentional tort.
The first is codified in F.S. 440.11(a), which states that if an employer fails to secure the appropriate workers’ compensation coverage for employee work injuries, as required by law, then injured workers have a choice. They can either collect from the employer what they would otherwise receive by making a claim (without litigation) or they can sue. The benefit to the latter is that if the worker wins, he or she is likely to secure a higher amount of damages. The worker will have to prove employer negligence, but the employer will not be allowed to assert a defense of negligence by another employee, assumed risk by injured employee or comparative negligence of employee.
The only other exception is intentional tort. It is extremely difficult for most injured workers to meet the necessary criteria to pursue an intentional tort claim against their employer. Still, it’s worth noting as an exception to exclusive remedy.
The availability of remedy under the intentional tort exception is found in F.S. 440.11(b)(2). The law says that if the employer causes the injury or death of an employee and employer either deliberately intended to injure the worker or engaged in conduct the employer knew, based on explicit warnings that specifically alerted to a known danger or other prior similar acts, was “virtually certain” to end in employee injury or death, employer may be responsible. In these instances, worker must also show he or she was unaware of the danger because it was not apparent and employer misrepresented the danger or deliberately concealed it for the purpose of preventing the worker from making an informed judgment about whether to do the work.
Again, this is an unusually high legal standard. Most workers will not have a case that meets the criteria for such a claim. However, our accomplished Florida construction injury attorneys are prepared to assist you in exploring all potential avenues of compensation.Workers’ Compensation Death Benefits
In the tragic event a construction worker is killed on the job, certain survivors are entitled to workers’ compensation death benefits. Florida workers’ compensation law provides death benefits for the surviving spouse and/or dependents of workers who die as a result of occupational injuries or diseases.
The law allows benefits to be paid for a work-related death that occurs within one year of an accident or within five years of a continuous disability. A maximum amount of $150,000 may be paid, as well as $7,500 in funeral expenses, which the employer has to pay within two weeks of receiving the bill.
If you have questions about how to obtain workers’ compensation benefits or whether third-party litigation is a viable option in your case, call our offices today.
Contact Associates and Bruce L. Scheiner, Attorneys for the Injured, for a free and confidential consultation to discuss your rights. There are no fees or costs unless we win. Offices in Fort Myers, Cape Coral, Naples and Port Charlotte.
Call 800-646-1210 for a Free Consultation