Florida Workers’ Compensation Law: Most Common and Frequently Asked Questions (FAQ) for Employees Injured at Work, Regarding Florida Workers Compensation Claims and Benefits

Worker Compensation FormUnfortunately, workplace accidents happen on the job every day down in Miami and throughout the rest of South Florida, for which employees are injured and require medical care to get them back to health.  When this occurs, Florida has a no fault system to protect an injured workers rights — the system provides the ability for an employee that sustains a work-related injury to recover money and remuneration in order to pay their medical bills and lost wages.  What is this system or workers’ rights called — this is Florida’s Workers’ Compensation Law under Chapter 440 of the Florida Statutes.

To check and see if your employer has workers compensation insurance, you can access the Florida Division of Workers’ Compensation’s Proof of Coverage Database at https://apps8.fldfs.com/proofofcoverage/Search.aspx.

If you are injured on the job as a result of a Miami work accident, and you are unsure how to proceed, you may wish to retain a Florida workers compensation lawyer to assist you in your claim.  For more information on Florida workers compensation insurance and third party liability claims arising out of a Florida workplace accident injury, see my prior article on Florida Workplace Accident Law and On The Job Injuries.  The following are some of the most common and frequently asked questions regarding Florida workers compensation law and Miami Florida workers compensation claims, for Florida employees hurt at work due to work-related accidents:

Does Florida workers compensation law allow me to sue my employer for pain and suffering damages arising out of my Florida work accident injury?

In general, no, your employer has immunity from suit under Chapter 440 of the Florida Statutes, provided they have workers compensation insurance to provide you benefits in case of an on the job injury.  There are some exceptions to this general rule, and they are discussed in my prior article on Florida Workplace Accident Law and On The Job Injuries.

Under Florida workers compensation law, what workers compensation benefits are generally provided for my Florida workplace injury?

In general, Florida’s workers compensation law provides the injured employee with benefits to cover a portion of their lost wages, as well as their medical bills and treatment, and if a worker is killed on the job in a Florida workplace accident, the worker’s estate or family members can recover death benefits and funeral expenses.  However, benefits for an injured employee’s pain and suffering are not provided for under Florida law.

How long after a Florida work-related accident do I have to report it to my employer?

30 days – Pursuant to Florida statute 440.185(1)  – Notice of injury or death – An employee who suffers an injury arising out of and in the course of employment shall advise his or her employer of the injury within 30 days after the date of or initial manifestation of the injury. Failure to so advise the employer shall bar a petition under this chapter unless:

(a) The employer or the employer’s agent had actual knowledge of the injury;

(b) The cause of the injury could not be identified without a medical opinion and the employee advised the employer within 30 days after obtaining a medical opinion indicating that the injury arose out of and in the course of employment;

(c) The employer did not put its employees on notice of the requirements of this section by posting notice pursuant to s. 440.055; or

(d) Exceptional circumstances, outside the scope of paragraph (a) or paragraph (b) justify such failure.

When should my employer report the workplace injury to their insurance company?

Within 7 days – Pursuant to Florida Statute 440.185(2), your employer shall report such injury or death to its carrier within 7 days after actual knowledge of your injury or death, and shall provide a copy of such report to the employee or the employee’s estate.  Normally, the first step is after initial notice of the work injury, the employee will be asked to assist in filling out a First Report of Injury or Illness, which basically sets forth a description of the Florida work accident, it will include the employer and employee’s information, it will identify the workers compensation insurance carrier, it will specify the first date of employment and the last day worked, it will specify the work accident injury incurred and the part of the body affected, and it will specify the wage scheme of how you are paid (ie., bi-weekly, etc.) and whether you your employer will be paying your wages instead of you receiving Florida workers comp benefits (since the incident occurred).

Under Florida workers compensation law, is my employer’s insurance carrier required to provide me information on Florida workers compensation law after being notified of my work -related injury?

Yes. Pursuant to Florida Statute 440.185(4), the carrier shall mail to the injured worker within 3 days after the employer or the employee informs the carrier of an injury an informational brochure approved by the department which sets forth in clear and understandable language an explanation of the rights, benefits, procedures for obtaining benefits and assistance, criminal penalties, and obligations of injured workers and their employers under the Florida Workers’ Compensation Law.

My employer will not report my Florida work accident injury to the insurance company. What can I do?

An employee who sustains a workplace injury has the right to report the injury to their insurance company. Moreover, pursuant to Florida Statute 440.185(11), upon receiving notice of an injury from an employee under subsection (1), the employer or carrier shall provide the employee with a written notice, in the form and manner determined by the department by rule, of the availability of services from the Employee Assistance and Ombudsman Office. The substance of the notice to the employee shall include:

(a) A description of the scope of services provided by the office.

(b) A listing of the toll-free telephone number of, the e-mail address, and the postal address of the office.

(c) A statement that the informational brochure referred to in subsection (4) will be mailed to the employee within 3 days after the carrier receives notice of the injury.

(d) Any other information regarding access to assistance that the department finds is immediately necessary for an injured employee.

Under Florida workers compensation law, am I entitled to Florida workers compensation benefits if injured on the job as a police officer, firefighter, emergency medical technician, or paramedic?

Yes. According to Florida Statute 440.091, if you are a law enforcement office, firefighter, emergency medical personnel or paramedic and sustain a work injury while in the course and scope of employment, you should be entitled to workers compensation benefits from your civic employer.  This may include when you are injured when driving to and from work, if injured while at lunch, etc.

Am I entitled to workers compensation benefits under Florida law if I am injured in a car accident, truck accident, moped accident, scooter accident, motorcycle accident or other type of motor vehicle accident, while I’m on the job and working in the course and scope of my employment?

Yes. Employees generally are covered under Florida’s Workers Compensation Act when they are injured in the course and scope of their employment, including employees who are required to travel as part of their job.  This could include air conditioning contractors, electrical contractors, construction site personnel, plumbers, engineers, pizza delivery contractors, paper delivery contractors, food and product delivery personnel, and really any other worker or employee who is required to travel in connection with his/her employment, and who suffers an injury while driving during the course of performing their work.

What kind of medical treatment am I entitled to after a Florida workplace accident?

According to Florida Statute 440.13(2), you are entitled to such medically necessary remedial treatment, care, and attendance (of any authorized provider), including medicines, medical supplies, durable medical equipment, orthoses, prostheses, and other medically necessary apparatus. You are also entitled to work-hardening programs or pain-management programs when such care is given based on a referral by a physician.  It should be noted that medically necessary treatment, care, and attendance does not include chiropractic services in excess of 24 treatments or rendered 12 weeks beyond the date of the initial chiropractic treatment, whichever comes first, unless the carrier authorizes additional treatment or the employee is catastrophically injured.

Can I recover Florida workers compensation benefits for a mental or nervous Injury due to my work-related accident?

Yes.  Under Florida Statute 440.093 – Mental and Nervous Injuries, if you have a physical injury that requires medical treatment, and the injury is accompanied by a mental or nervous injury due to stress, fright, or excitement, so long as the mental nervous injury is linked to the compensable physical trauma by a licensed psychiatrist. The compensable physical injury must be and remain the major contributing cause of the mental or nervous condition and the compensable physical injury as determined by reasonable medical certainty must be at least 50 percent responsible for the mental or nervous condition as compared to all other contributing causes combined. Compensation is not payable for the mental, psychological, or emotional injury arising out of depression from being out of work or losing employment opportunities, resulting from a preexisting mental, psychological, or emotional condition or due to pain or other subjective complaints that cannot be substantiated by objective, relevant medical findings.

It should be noted that a physical injury resulting from mental or nervous injuries unaccompanied by physical trauma requiring medical treatment shall not be compensable under this chapter.

What happens if my employer refuses to pay for my initial medical care and treatment arising out of my work-related injury?

According to Florida Statute 440.13(2)(c), if the employer fails to provide initial treatment or care after a request by the injured employee, the employee may obtain such initial treatment at the expense of the employer, if the initial treatment or care is compensable and medically necessary and is in accordance with established practice parameters and protocols of treatment as provided for in this chapter. There must be a specific request for the initial treatment or care, and the employer or carrier must be given a reasonable time period within which to provide the initial treatment or care. However, the employee is not entitled to recover any amount personally expended for the initial treatment or care unless he or she has requested the employer to furnish that initial treatment or service and the employer has failed, refused, or neglected to do so within a reasonable time or unless the nature of the injury requires such initial treatment, nursing, and services and the employer or his or her superintendent or foreman, having knowledge of the injury, has neglected to provide the initial treatment or care.

Under Florida workers compensation law, do I have to pay any of my medical bills due to me being hurt at work?

No.  According to Florida Statute 440.13(3)(g) and section (13), all authorized medical bills are to be submitted by the medical provider to your employer’s insurance company for payment, and in general, the injured employee is not liable for payment for medical treatment or services provided.

Will I be paid if I lose time from work due to my work-related injury?

Possibly.  According to Florida Statute 440.12(1), you can not recover lost wages for the first seven days of your employment related disability, although if you lose time from work because your disability extends to over 21 days, you are entitled to lost wages from the date your work related injury or disability started (which would include the first 7 days).

How much will I be paid in lost wages if I lose time from work due to a Florida work accident and have a permanent total disability?

According to Florida Statute 440.15(1), you are to be paid 66 2/3 percent of your average weekly wages (under section 440.14, average weekly wages is essentially what you make from all employment during any given week in the thirteen weeks before the work accident occurred) during the continuance of such total disability. However, it should be noted that no compensation will be payable  if the employee is engaged in, or is physically capable of engaging in, at least sedentary employment.

It should also be noted that according to Florida Statute 440.15(1)(b), the following injuries are considered to be a permanent total disability arising out of a work accident (this is not applicable if you are physically capable of engaging in at least sedentary employment within a 50-mile radius of your residence):

1. Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;

2. Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;

3. Severe brain or closed-head injury as evidenced by:

a. Severe sensory or motor disturbances;

b. Severe communication disturbances;

c. Severe complex integrated disturbances of cerebral function;

d. Severe episodic neurological disorders; or

e. Other severe brain and closed-head injury conditions at least as severe in nature as any condition provided in sub-subparagraphs a.-d.;

4. Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of 5 percent or more to the face and hands; or

5. Total or industrial blindness.

How much will I be paid in lost wages if I lose time from work due to a Florida work accident and have a temporary total disability?

According to Florida Statute 440.15(2)(a), you are to be paid 66 2/3 percent of your average weekly wages although in general this is not to exceed 104 weeks. However, an employee who has sustained the loss of an arm, leg, hand, or foot, has been rendered a paraplegic, paraparetic, quadriplegic, or quadriparetic, or has lost the sight of both eyes is to be paid temporary total disability benefits of 80 percent of her or his average weekly wage, these payments will generally not extend beyond 6 months from the date of the accident.  It should be noted that such benefits shall not be due or payable if the employee is eligible for, entitled to, or collecting permanent total disability benefits.

How much will I be paid in lost wages if I lose time from work due to a Florida work accident and have a temporary partial disability?

According to Florida Statute 440.15(4)(a), you are to be paid 80 percent of the difference between 80 percent of your average weekly wage and the salary, wages, and other remuneration you are able to earn post-injury although these weekly temporary partial disability benefits may not exceed an amount equal to 66 2/3 percent of your average weekly wage at the time of accident.  Of note, according to 440.15(e), these benefits are to be paid during the continuance of your disability although they are not to exceed a period of 104 weeks.  Moreover, once you reach the maximum number of weeks, temporary disability benefits cease and your permanent impairment must be determined.

How much will I be paid in lost wages if I lose time from work due to a Florida work accident and have a permanent impairment?

According to Florida Statute 440.15(3)(a), once you have reached the date of maximum medical improvement, impairment benefits are due and payable within 14 days after the carrier has knowledge of the impairment.  Moreover, according to 440.15(3)(c), you are paid biweekly at the rate of 75 percent of your average weekly temporary total disability benefit, although such benefits shall be reduced by 50 percent for each week in which you have earned income equal to or in excess of your average weekly wage.

Under Florida workers compensation law, how much time does my employer’s insurance carrier have to pay me my benefits for total disability or death arising out of a Florida workplace injury?

In general, 14 days after the employer receives notice of the injury or death. According to Florida Statute 440.20(2)(a), the carrier must pay the first installment of compensation for total disability or death benefits or deny compensability no later than the 14th calendar day after the employer receives notification of the injury or death, when disability is immediate and continuous for 8 calendar days or more after the injury. If the first 7 days after disability are nonconsecutive or delayed, the first installment of compensation is due on the 6th day after the first 8 calendar days of disability.  In fact, under subsection (6)(a), if any installment of compensation for death or dependency benefits, or compensation for disability benefits payable without an award is not paid within 7 days after it becomes due, a penalty is to be added of an amount equal to 20 percent of the unpaid installment.

Can I get disability or death benefits arising out of an occupational disease caused by my work?

Yes.  According to Florida Statute 440.151(1)(a), the disablement or death of an employee resulting from an occupational disease shall be treated as the happening of an injury by accident, and to which the employee or, in case of death, the employee’s dependents, shall be entitled to compensation under Chapter 440.  In fact,  under 440.151(c), even if an occupational disease is aggravated by any other disease or infirmity which is not itself compensable, or where disability or death from any other cause that is not itself compensable is aggravated, prolonged, accelerated or in anywise contributed to by an occupational disease, you are entitled to compensation only if the occupational disease is the major contributing cause of the injury.

Under Florida workers compensation law, how much can my estate or family members get in death benefits for an employee being killed in an on the job Florida workplace accident?

According to Florida Statute 440.16, your estate and/or family member can receive up to $150,000 in death benefits, along with up to $7,500 in funeral expenses.

Can I get disability or death benefits due to a subsequent accident or injury or an aggravation of a prior injury?

Yes. According to Florida Statute 440.15(5)(a),  the fact that you have suffered a previous disability, impairment, anomaly, or disease, or received workers compensation as a result of same, this does not prevent you as an employee injured on the job from getting workers compensation benefits for a subsequent aggravation or acceleration of the pre-existing condition or preclude benefits for death resulting therefrom.  However, no benefits are payable if you at the time of entering into your employment, falsely represent in writing as not having previously been disabled or compensated because of such previous disability, impairment, anomaly, or disease and your employer detrimentally relies on this misrepresentation.

Can I still get disability benefits for a temporary partial disability if I leave my previous employer and get a new job?

Yes. According to Florida Statute 440.15(7), if you are injured on the job and receive compensation for temporary partial disability, if you leave the employment of the employer by whom you were employed at the time of your accident for which such compensation is being paid, you can still get benefits for you prior accident provided you provide your old employer an affidavit in writing containing the name of your new employer, the place of employment, and the amount of wages being received at such new employment — until you give such an affidavit, your compensation for temporary partial disability will cease.

When will I get my first check after my Florida work-related injury?

As stated above, according to Florida Statute 440.20, an injured worker should receive their  first benefits check within 21 days after the injury is reported to the employer.

If I am only temporarily disabled, how long can I receive my benefit checks for?

As stated above, according to Florida Statute 440.15(2) and 440.15(4), you can receive temporary total or temporary partial disability payments during your disability for no more than a maximum of 104 weeks.

Under Florida workers compensation law, can I receive social security benefits and Florida workers’ compensation benefits at the same time?

Yes. According to Florida Statute 440.15(9), you can receive both sets of benefits at the same time although you cannot receive combined benefits that exceeds 80 percent of your average weekly wage.

Under Florida workers compensation law, can I receive Florida unemployment compensation benefits and Florida workers’ compensation total disability benefits at the same time?

No. According to Florida Statute 440.15(10)(a), no workers compensation benefits shall be payable for temporary total disability or permanent total disability while you are injured and your are receiving reemployment assistance or unemployment compensation benefits.

Can I receive Florida unemployment compensation and Florida workers’ compensation temporary partial disability benefits at the same time?

Yes.  According to Florida Statute 440.15(10)(b), if you are entitled to temporary partial benefits and reemployment assistance or unemployment compensation benefits, such reemployment assistance or unemployment compensation benefits shall be primary and the temporary partial benefits shall be supplemental only — the sum of the two benefits are not to exceed the amount of temporary partial benefits which would otherwise be payable.

What can I do if I am not receiving my benefit check after my work-related injury?

If you are an employee injured in a workplace accident on the job, and you are not receiving your benefit check, you can simply call your employer or your employer’s insurance carrier.

For the time period that I am receiving disability benefits and am unable to return to work , does my employer have to hold my job for me?

No, your employer is not required to hold your job position while you are receiving workers compensation benefits.  Moreover, Florida is an at-will employee job state which means that your employer can let you at any time whether it is for cause or not.

Can my employer fire me simply because I am unable to return to work because of an on the job injury and am receiving workers’ compensation benefits?

No.  According to Florida Statute 440.205, 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 Florida’s Workers’ Compensation Law.

If I am having difficulty getting a prescription filled or I am having problems with the pharmacy where I get my workers’ compensation medication, what can I do?

According to Florida Statute 440.13(3)(j), an employee injured on the job in Florida has the right to select a pharmacy or pharmacist — Florida law expressly forbids the department, an employer, a carrier, or any agent or representative of the department, employer, or a carrier, from selecting a pharmacy or pharmacist which the sick or injured employee must use.  Thus, if you have problems with your chosen pharmacy, you can simply choose another pharmacy to fill your prescriptions.

My employer and the insurance company have denied my claim for workers’ compensation benefits. Do I need legal representation (ie., a Florida workers compensation denied claim attorney or lawyer) to get my disability or death benefits?

If you are hurt or work, sustain an on the job injury, sustain a workplace  injury or disease or are killed at work, and your claim for Florida workers compensation disability or death benefits is denied, delayed or underpaid, you can inquire with a Florida workers compensation attorney or lawyer to assist you in your process.

What is the time limit (ie., the statute of limitations for Florida workers compensation claims before a Judge of Compensation Claims) for filing a Petition for Benefits?

In general, the statute of limitations for Florida workers compensation lawsuits is two (2) years from the date of injury.  According to Florida Statute 440.19(1), all employees petition for benefits is barred unless the employee, or the employee’s estate if the employee is deceased, has advised the employer of the injury or death pursuant to 440.185(1) — ie., within thirty days of the injury, and the petition is filed within 2 years after the date on which the employee knew or should have known that the injury or death arose out of work performed in the course and scope of employment.  Of note, if the injury claimed is an occupational disease (such as black lung, asbestosis, mesothelioma, etc.), the Florida statute of limitations for these types of Florida work injury claims begins to run from the date of disability and not the date on which the accident or the contraction of the disease took place.

If I get Florida workers compensation benefits, are creditors able to take a portion of my checks to pay my debts?

No.  According to Florida Statute 440.22, your Florida workers compensation disability or death benefits received under Chapter 440, are exempt from all claims of creditors, and from levy, execution and attachments or other remedy for recovery or collection of a debt, which exemption may not be waived. However, the exemption of workers’ compensation claims from creditors does not extend to claims based on an award of child support or alimony.

If I lose my claim for Florida workers compensation benefits, can I appeal an Order entered by a Judge of Compensation Claims?

Yes.  According to Florida Statute 440.271, any review of an order by a judge of compensation claims is to be by appeal to the District Court of Appeal, First District. Appeals shall be filed in accordance with rules of procedure prescribed by the Supreme Court for review of such orders.

Can my Miami Florida workers compensation claim lawyer recover attorney’s fees if I am forced to file a petition for benefits arising out of my workplace accident?

Yes. According to Florida Statute 440.34(1), a claimant’s attorney may recover an attorney’s fee approved by a judge of compensation claims for benefits secured on behalf of a claimant, said fee which must be equal to 20 percent of the first $5,000 of the amount of the benefits secured, 15 percent of the next $5,000 of the amount of the benefits secured, 10 percent of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years. Of note, a retainer agreement between an injured employee and their Florida workers compensation claim attorney, as to fees and costs, may not be for compensation in excess of the amount allowed under this section.

Under Florida workers compensation law, can I get a lump sum settlement from my Florida workers compensation claim, arising out of my work-related accident or work-related injury?

Yes. If an injured worker due to a Florida work accident hires a Miami Florida workers compensation claim lawyer and they file a workers compensation claim (ie., a petition for benefits), lump sum settlements may be entered into with their employer whether the claimant is represented by counsel or not.  According to Florida Statute 440.20(11)(a) and (b), when a claimant is not represented by counsel, a lump-sum payment can be made in exchange for the employer’s or carrier’s release from liability for future medical expenses, as well as future payments of compensation expenses and any other benefits provided under this chapter.  In this situation, the employer or carrier may not pay any attorney’s fees on behalf of the claimant for any settlement unless expressly authorized elsewhere in chapter 440.  According to Florida Statute 440.20(11)(c), where the employee is represented by a Florida workers compensation claim lawyer, the claimant may waive all rights to any and all benefits under this chapter by entering into a settlement agreement releasing the employer and the carrier from liability for workers’ compensation benefits in exchange for a lump-sum payment to the claimant. The settlement agreement requires approval by the judge of compensation claims only as to the attorney’s fees paid to the claimant’s attorney by the claimant.

If I settle my Florida workers compensation claim for medical benefits with my employer’s insurance company and my work injury condition gets worse after my settlement, who pays for my future medical care or surgeries?

Once you settle your claim, you release your employer and their workers compensation insurance carrier from any further liability or responsibility due to your workplace injury.  As such, in this instance, you would be responsible for all future medical care and needs once you settle your claim for medical benefits.

Can I get Florida workers compensation benefits to cover me for my pain and suffering related to my Florida work accident injury?

No. Florida’s workers compensation law only provides the injured worker with benefits to cover lost wages and medical bills from an authorized medical provider. For an explanation of how an injured worker can recover pain and suffering damages arising out of their Florida work accident, see my prior article on Florida Workplace Accident Law and On The Job Injuries.

Should I use my health insurance to cover my medical bills related to my on the job injury?

No. In general, Florida’s worker compensation benefits provide for the covering of an injured employee’s medical care by an authorized medical provider.  Thus, if you choose to go to your own doctors, and these doctors are not authorized by your employers workers compensation carrier, you will likely be responsible for paying those medical  bills.

In Florida, workers, contractors and employees are injured on the job on a daily basis as a result of workplace accidents and injuries on the job. Some of Florida’s most prominent employers where work-related accidents can happen include the following places:

  • Supermarkets: Publix, Albertsons, Winn-Dixie, Sedanos Supermarket, Food Lion, Presidente, Whole Foods, Save A Lot, Stop & Shop, Fresh Market, Sweetbay Supermarket, and Walmart Supercenter.
  • Shopping and strip malls: Florida Mall, Dadeland Mall, Broward Mall, Boynton Beach Mall, Sawgrass Mills, Bayside Market Place, The Falls, Las Olas Shops, Dolphin Mall, Mall of the Americas, Aventura Mall, Mall at Millenia, Downtown Disney Marketplace and Shops, The Shops at Sunset Place, Orlando Premium Outlets, Southland Mall, Merrick Park, Festival Bay Mall and Factory Outlet Malls.
  • Restaurants: Applebee’s, Mcdonald’s, Subway, Olive Garden, Red Lobster, Chilli’s, Red Robin, Burger King, Wendy’s, Buffalo Wild Wings, Arby’s, Taco Bell, Chipotle, Domino’s Pizza, Pizza Hut, Papa John’s, Krispy Kreme, Cracker Barrel, Outback Steakhouse, Panera Bread, Starbucks and Kentucky Fried Chicken (KFC).
  • Pharmacies: CVS, Walgreens and others.
  • Electronic retail stores: Brandsmart, Best Buy, HH Greg, Tiger Direct, Sears, Rent A Center, AT & T Retail Outlets, Verizon Wireless Retail Outlets and RadioShack.
  • Hardware stores: Home Depot, Lowe’s and Ace Hardware.
  • Convenience Stores: Super K, Farm Stores and 7-Eleven.
  • Gas Stations: Chevron, Citgo, Shell, Exxon-Mobil, British Petroleum, Valero, U-Gas, Sunoco, Texaco, Hess, Raceway and Marathon.
  • Big box stores: Walmart Supercenter’s, Target, Kmart and Big Lots.
  • Wholesale stores: BJ’s Wholesale Club, Costco and Sams.
  • Amusement and theme parks: Walt Disney World, Epcot, Disney’s Magic Kingdom, Disney’s Animal Kingdom, Universal Studios, Islands of Adventure, Legoland, Disney’s Blizzard Beach, Disney’s Typhoon Lagoon, Wet and Wild, Busch Gardens, Downtown Disney, Disney Quest and Sea World.
  • Discount retail stores: Marshalls, TJ Maxx, Ross Dress For Less, Dollar General, Family Dollar, Discount Dollar and Dollar Tree.
  • Department Stores: Sears, Macy’s, Bloomingdales, Bealls, Saks Fifth Avenue, Dillards, Kohl’s, JC Penney, Belk, Nordstrom and Neiman Marcus.
  • Hotels and Motels: Hilton, Marriott, Best Western, Hampton Inn and Suites, Red Roof Inn, Ritz Carlton, Radisson, Fairfield Inn and Suites, Springhill Suites, Disney Resort’s, Sheraton, Hardrock Hotel, Renaissance Hotels, Westin, W Hotel, La Quinta Inn & Suites, Loews Hotels, Motel 6, Super 8 Motels, Holiday Inn, Crowne Plaza, Embassy Suites, Wyndham Hotels, Comfort Suites, Courtyard Marriott and Doubletree Suites.

Moral of the Story: if you are a Florida employee who is injured on the job at your workplace or somewhere else while in the course and scope of your employment, whether the work-related accident happens in Palmetto Bay, Daytona, Orlando, Tampa, Fort Myers, Naples, Jacksonville, Stuart, Jupiter, Hollywood, Pensacola, Ocala, Cape Coral, Saint Augustine, Aventura, Miami Beach, Hialeah, Gainsville, Palm Coast, Port St Lucie, Port Orange, West Kendall, Homestead, the Florida Keys, Cutler Ridge, or another area within Miami, Fort Lauderdale or Palm Beach, or anywhere in Miami-Dade, Broward, Palm Beach or Monroe Counties, know that workers injured due to work-related accidents have many options available under Florida workers compensation law that may require the retention of a Miami Florida workers compensation lawyer or a Florida work-related accident injury lawyer, given the many complexities involved when an employee is hurt at work and suffers an on the job injury or occupational disease.

Florida Workplace Accident Law and On The Job Injuries – What are Workers’ Options Under Florida Law When They Are Hurt at Work, Apart From a Workers Compensation Claim?

Casualty at work

Dramatization/Actor – Not An Actual Event

Workplace accidents happen on the job every day down in South Florida.  In fact, some of the most common causes of Miami Florida work-related accidents and work-related injuries can include the following:

  1. Slip and fall on food, produce, oil, water or some other substance on the floor;
  2. Trip and fall over bunched up carpet, rugs or matts, raised sidewalks and potholes in the parking lot;
  3. An object falls on you from above due to improper stacking or shelving;
  4. You carry or push an object that is too heavy (such as lifting a computer, heavy boxes or equipment);
  5. Repeated use a body part that sustains an acute injury (such as carpal tunnel syndrome by typing on a computer);
  6. Automobile or truck accident while driving a company truck, van or car (such as a taxi driver, limosine driver or pizza and paper delivery contractor);
  7. A restaurant chef or cook cuts or burns their hand, wrist or fingers;
  8. Inhalation or breathing in of toxins, dangerous gases or substances (such as asbestos from working in automotive repair shops, boiler making, construction, mines, mills, factories or pipe fitting);
  9. Injured by a co-worker or co-employee of another subcontractor or general contractor (GC) on a construction site, including crane accidents, ladder accidents, rooftop accidents, forklift accidents, scaffolding accidents, OSHA violation accidents and dump truck accidents).

Unfortunately, these types of work-related accidents can cause employees to suffer from a variety of work injures on the job, including broken bones (legs, hips, arms, knees, ankles, wrists, shoulders, vertebrae, feet and hands), spinal injuries (herniated and bulging discs, torn annulus, nerve injuries), head injuries (including post-concussive syndrome and traumatic brain injuries (TBI)), torn muscles, tendons and ligaments (including a torn labrum (SLAP tear) or rotator cuff), tendinitis, eye sight loss (including loss of an eye) and hearing loss, amputations, burn injuries (including electrocution), hypothermia due to the cold, and sickness or disease from exposure to gasses, dust, fibers or other toxic chemicals or debris (such as asbestosis, mesothelioma, lung cancer or black lung).  In fact, construction site accidents usually involve catastrophic injuries such as loss of limb, paralysis and even cases where workers are killed on the job.

Because workplace accidents are so common in South Florida and employers wish to lessen the occurrences of workers being hurt on the job, they really try to emphasize employee training and supervision.  However, in a lot of instances, the employer training and supervision is simply not enough.  It does not matter whether you work for Sea World, Disney World, Universal Studios, Publix, Home Depot, Lowes, K-Mart, Wal-Mart, Winn-Dixie, Wholefoods, Sedanos Supermarket, Burger King, McDonalds, Subway, Wendys, Starbucks, KFC, Panera Bread Company, Costco, Sams, Taco Bell, Target, CVS, Walgreens, Best Buy or any other Florida restaurant, hotel, supermarket, retail chain or shopping mall (such as Dadeland), workplace accidents can happen and employees are often searching for answers from a Florida Work Injury lawyer or Florida Workers Compensation Attorney, to guide them in their potential filing of a workers compensation claim for benefits that have been denied, delayed or underpaid.

When an employee is hurt  at work and suffers work-related injuries, they have several options at their disposal under Florida law:

  1. Elect to pursue a workers compensation claim against their employer (a no-fault system that will allow the employee to recover medical benefits and lost wages) and thereby eliminating any future claim against their employer;
  2. Elect to pursue a workers compensation claim against their employer but specifically including within the settlement and release that the employee still retains the right to pursue a claim against the employer under the intentional tort exception;
  3. Sue their employer in tort under the intentional tort exception to an employers workers compensation immunity provided under Florida law;
  4. Sue a co-employee in tort under the gross negligence or willful/wanton conduct exception to immunity;
  5. Sue a co-contractor in tort (horizontal relationship) under the gross negligence exception to immunity; or
  6. Bring a third party liability claim against any third party who may have caused or contributed to the workplace accident (such as a janitorial company for leaving floors wet while a security guard performs their duties; a manufacturer of a product that contains a product defect or was negligently designed).

The following is a discussion and analysis of Florida workplace accidents and some of the options an injured employee has under Florida law.

FLORIDA’S WORKERS COMPENSATION LAW UNDER CHAPTER 440 PROVIDES MEDICAL AND DISABILITY BENEFITS FOR WORKERS INJURED IN ACCIDENTS AT THE WORKPLACE: Florida’s workers compensation law (a n0-fault system) is a statutory creature governed by Chapter 440.  Under section 440.015, it is the legislatures intent that Florida’s Workers’ Compensation Law be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer…. and …. to ensure the prompt delivery of benefits to the injured worker.

Of note, Florida’s private employers who have four or more employees in a non-construction realm, or one employee in the construction realm (under Florida Statute 440.10(b), where a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment — the general contractor in this case would be considered a “statutory employer”), are required by law to obtain workers compensation insurance (unless they are exempt) to cover their employee’s for injuries, accidents or deaths that occur at the workplace and are related to some effect from the workplace, ie., on the job injuries that result from work accidents.

It should be noted that Florida Courts require that the work-related accident not only caused the injury, but also that the accident must be greater in significance and importance than any other single other cause, ie., the major contributing cause of the disability or need for work place accident treatment.  Given this standard, one who exacerbates a pre-existing condition may be denied workers compensation benefits for a work injury that occurred as a result of an on the job injury but was not the main cause of the work place injury.  In that scenario, an injured employee who was hurt at work may need to hire a Florida Workers Compensation lawyer to to file a workers compensation claim, in order to secure their medical and disability benefits that have been wrongfully denied or undervalued.

Some important definitions under Florida’s workers compensation law for employees hurt at work are the following:

  1. 440.02(1) (1) – Accident: means only an unexpected or unusual event or result that happens suddenly. Disability or death due to the accidental acceleration or aggravation of a venereal disease or of a disease due to the habitual use of alcohol or controlled substances or narcotic drugs, or a disease that manifests itself in the fear of or dislike for an individual because of the individual’s race, color, religion, sex, national origin, age, or handicap is not an injury by accident arising out of the employment. Subject to s. 440.15(5), if a preexisting disease or anomaly is accelerated or aggravated by an accident arising out of and in the course of employment, only acceleration of death or acceleration or aggravation of the preexisting condition reasonably attributable to the accident is compensable, with respect to any compensation otherwise payable under this chapter. An injury or disease caused by exposure to a toxic substance, including, but not limited to, fungus or mold, is not an injury by accident arising out of the employment 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.
  2. 440.02(10) – Date of maximum medical improvement: means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.
  3. 440.02(11) – Death: as a basis for a right to compensation means only death resulting from an injury.
  4. 440.02(13) – Disability: means incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury
  5. 440.02(15)(a) – Employee: means any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors.
      1. 440.02(15)(b): employee also includes includes any person who is an officer of a corporation and who performs services for remuneration for such corporation within this state, whether or not such services are continuous.
      2. 440.02(15)(c): employee also includes (1) A sole proprietor or a partner who is not engaged in the construction industry, devotes full time to the proprietorship or partnership, and elects to be included in the definition of employee by filing notice thereof as provided in s. 440.05; (2) All persons who are being paid by a construction contractor as a subcontractor, unless the subcontractor has validly elected an exemption as permitted by this chapter, or has otherwise secured the payment of compensation coverage as a subcontractor, consistent with s. 440.10, for work performed by or as a subcontractor; (3) An independent contractor working or performing services in the construction industry; (4) A sole proprietor who engages in the construction industry and a partner or partnership that is engaged in the construction industry.

      3. 440.02(15)(d)an employee does not include (1) an independent contractor who is not engaged in the construction industry; (6) a volunteer, except a volunteer worker for the state or a county, municipality, or other governmental entity; )10) a taxicab, limousine, or other passenger vehicle-for-hire driver who operates said vehicles pursuant to a written agreement with a company which provides any dispatch, marketing, insurance, communications, or other services under which the driver and any fees or charges paid by the driver to the company for such services are not conditioned upon, or expressed as a proportion of, fare revenues.

  6. 440.02(17)(b)(2) – Employment: includes all private employments in which four or more employees are employed by the same employer or, with respect to the construction industry, all private employment in which one or more employees are employed by the same employer
  7. 440.02(19) – Injury: means personal injury or death by accident arising out of and in the course of employment, and such diseases or infection as naturally or unavoidably result from such injury. Damage to dentures, eyeglasses, prosthetic devices, and artificial limbs may be included in this definition only when the damage is shown to be part of, or in conjunction with, an accident. This damage must specifically occur as the result of an accident in the normal course of employment.

FLORIDA WORKERS INJURED ON THE JOB MAY RUN INTO EMPLOYER IMMUNITY FOR WORKPLACE ACCIDENTS CAUSED BY EMPLOYER OR CO-WORKER GENERAL NEGLIGENCE: under Florida Statute 440.11(1) – Exclusiveness of Liability, a worker or employee injured on the job is pretty much limited to a workers compensation claim for recovery of medical benefits and lost wages, one cannot recover benefits for pain and suffering arising out of a work place accident by way of a workers compensation claim.  Florida Statute 440.11(1) states that the liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death.  However, there are some exceptions to this general rule of employer negligence and lawsuit immunity, including the following:

Florida Statute 440.11(1)(a) – employer failure to secure workers compensation insurance: if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty (ie., you can bring a lawsuit against your employer for general negligence in order to recover pain and suffering damages for your workplace injuries) for damages on account of such injury or death. In such action the defendant employer may not plead 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 (ie., when an injured employee hires a Florida workplace accident injury lawyer, and they bring a lawsuit for disability or death benefits, the employer can not defend the case by stating the employee was negligent in causing the accident) .

Florida Statute 440.11(1)(b) – the intentional tort exception: when an employer commits an intentional tort that causes the injury or death of the employee. For purposes of this paragraph, an employer’s actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that: 

1. The employer deliberately intended to injure the employee; or

2. 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.

Florida Statute 440.11(b) – co-employee willful and wanton conduct or gross negligence: while the the same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this chapter, such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment.

Florida Statute 440.11(b) – officer or managerial employee conduct that is a violation of law: while the same immunity provisions enjoyed by an employer shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his or her duties acts in a managerial or policymaking capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of a law, whether or not a violation was charged, for which the maximum penalty which may be imposed does not exceed 60 days’ imprisonment as set forth in s. 775.082 (ie., if the managerial employee’s conduct violates the law and the penalty exceeds 60 days in jail, workers compensation immunity may not apply to this employee).

Florida Statute 440.10(e) – sub-contractor gross negligence on a construction site or job: a subcontractor providing services in conjunction with a contractor on the same project or contract work is not liable for the payment of compensation to the employees of another subcontractor or the contractor on such contract work and is protected by the exclusiveness-of-liability provisions of s. 440.11 from any action at law or in admiralty on account of injury to an employee of another subcontractor, or of the contractor, provided that:

1. The subcontractor has secured workers’ compensation insurance for its employees or the contractor has secured such insurance on behalf of the subcontractor and its employees in accordance with paragraph (b); and

2. The subcontractor’s own gross negligence was not the major contributing cause of the injury.

RECENT EXAMPLES OF INJURED OR KILLED WORKERS AND THE APPLICATION OF THE EXCEPTIONS WITHIN LIABILITY LAWSUITS BROUGHT AGAINST EMPLOYERS, CO-CONTRACTORS AND CO-WORKERS: the following recent cases are some examples of the application of the standards referenced above, when a worker that is injured or killed by way of a Florida workplace accident, brought a lawsuit against their employer for wrongful death or tort damages (ie., pain and suffering, as these damages are not recoverable in a Florida workers compensation claim):

Figueroa v. Delant Const. Co., 118 So.3d 272 (Fla. 3d DCA 2013): this case involved a construction worker that was allegedly injured by way of a Florida workplace accident, and he brought a lawsuit against his construction company employer (considered a statutory employer)  under the intentional tort exception (ie., requires conduct that is virtually certain to cause injury or death).  The Court granted summary judgment to the employer, of which the Third District Court of Appeal (governs workplace accidents that occur in Miami-Dade County Florida) affirmed the decision.  The appeals court noted that there were no prior similar accidents or a specific warning explicitly identifying a known danger, which would thereby establish that the construction company employer engaged in conduct it knew was “virtually certain to result in injury or death” to the employee, the evidence demonstrated that the danger or risk was apparent to the employee, and there was no concealment or misrepresentation by the construction employer. Therefore, the Court ruled that the employee could not establish as a matter of law that the intentional tort exception to workers’ compensation immunity was applicable, and that the trial court properly entered final summary judgment in favor of the construction company employer.

Boston ex rel. Estate of Jackson v. Publix Super Markets, Inc., 112 So.3d 654 (Fla. 4th DCA 2013): this case involved a Publix Supermarket worker that was killed on the job when a co-worker accidentally backed his tractor trailer up to the warehouse door and struck the employee.  The estate of the worker that was killed on the job had a Florida workplace injury lawyer bring a  wrongful death lawsuit against Publix under the intentional tort exception to the workers compensation immunity statutory framework, and a gross negligence suit against the co-worker in order to get past Publix’s employer immunity for injury or death caused by general negligence.

The Court noted that the tractor was equipped with backup alarms, although an inspection after the incident revealed that the backup alarm on the tractor was not working, to which the co-employee testified that he knew the backup alarm was inoperable and had not been working for months. The Court further noted that the co-employee did not report it to Publix maintenance, nor did he fill out inspection reports designed to call attention to any maintenance problems, that Publix’s policy for safety inspections and maintenance would have required that the tractor trailer be taken out of service to repair the backup alarm, but the tractor trailer was overdue for safety inspections, and that the tractor trailer had been in for other maintenance, and that the maintenance staff should have checked the backup alarm and taken the tractor out of service to repair it.

The Court also noted that no prior accidents had occurred at the distribution center involving the tractors, with or without a failed backup alarm, in which an employee was pinned between the back of the trailer and the loading dock or where a tractor-trailer backed into an employee — Publix apparently knew of three prior accidents at the distribution center, but none involved a tractor, and none occurred in backing up a vehicle.  Apparently, following this incident, Publix was cited by OSHA for having an inoperative backup alarm on the tractor trailer, to which the OSHA report stated that Publix “did not furnish to each of [its] employees employment and a place of employment which were free from recognized hazards that were causing or were likely to cause death or serious physical harm to employees….”

The Court affirmed the trial court’s granting of summary judgment to the employer as to the intentional tort exception to general employer immunity for general negligence — the trial court ruled that even taking the facts in the light most favorable to Plaintiff, the evidence fails to establish that Publix engaged in conduct that Publix 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 decedent…there was no concealment of the risks involved … the danger should have been obvious to the decedent … and that this tragic accident was just an act of simple negligence (ie, the virtually certain standard is so high that the conduct must be so egregious to overcome general employer immunity).

Of note, however, the Third District did reverse on the gross negligence claim against the co-employee, finding that material issues of fact existed as to whether the co-employees conduct constituted gross negligence that caused injury of death.  The Court noted that “Gross negligence … is defined as an act or omission that a reasonable, prudent person would know is likely to result in injury to another,” while ‘simple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons….’ ”  The Third District also noted another definition of gross negligence by a sister court, ie., “[A] finding of gross negligence requires the following: [F]irst of all, gross negligence presupposes the existence of a “composite” of circumstances which, together, constitute an “imminent” or “clear and present” danger amounting to more than normal and usual … peril….Secondly, gross negligence must be predicated on a showing of chargeable knowledge or awareness of the imminent danger spoken of. And thirdly, the act or omission complained of must occur in a manner which evinces a “conscious disregard of consequences,” as distinguished from a “careless” disregard thereof (as in simple negligence) or from the more extreme “willful or wanton” disregard thereof (as in culpable or criminal negligence).”

Villalta v. Cornn Intern., Inc., 110 So.3d 952 (Fla. 1st DCA 2013): in this case, the estate of deceased drywall worker (the employee fell from a scaffold and sustained fatal injuries) filed a negligence action against a drywall subcontractor that had subcontracted drywall work on the construction project to the injured worker’s employer. The Circuit Court in Duval County entered summary judgment in favor of the drywall subcontractor on the basis of statutory immunity as provided under Florida’s Workers’ Compensation Law. The estate appealed, to which the First District Court of Appeal affirmed the summary judgment, holding that the intentional tort exception, and not the gross negligence exception to tort immunity under Florida’s Workers’ Compensation Law, governed the negligence action.

The Court noted that because the general contractor had contracted out the drywall work to another subcontractor, who then subcontracted out the work to the injured worker’s employer, that the subcontractor of the general contractor became the injured worker’s statutory employer under Florida Statute 440.10(1), and thus was immune from a lawsuit (ie., general negligence).

This case sets forth a good discussion as to whether the intentional tort or the gross negligence exception applies for workplace accidents and injuries on a construction site. The killed worker’s estate brought a lawsuit against several parties, including the subcontractor that had contracted the drywall work to the employee’s employer (ie., a vertical relationship under the same subcontract). The drywall subcontractor asserted its immunity from suit under section 440.11(1). Under this section, particularly §440.11(1)(b), an exception to the statutory immunity applies if an intentional tort was committed (which the Court found was not). The estate relied on a theory of gross negligence and asserted that the suit could be brought against the drywall subcontractor pursuant to section 440.10(1)(e)(2), which provides section 440.11 immunity for a subcontractor sued by the employee of another subcontractor unless the first subcontractor’s own gross negligence was the major contributing cause of the injury. The Court noted, however, that reliance on the gross negligence provision in section 440.10(1)(e)(2), ignores the distinction between a vertical subcontracting relationship and upon which section 440.11(1) immunity applies, and the horizontal type of subcontractor relationship to which section 440.10(1)(e)( 2) may be invoked.

The Court noted that a vertical relationship is created when a contractor sublets part of the work to a subcontractor, who then further sublets work to another subcontractor. That is the situation in the present case. In contrast, a horizontal relationship exists between subcontractors engaged on the same construction project but under different subcontracts outside the vertical chain of a contractor to subcontractor to sub-subcontractor. The immunity granted to subcontractors outside that vertical chain is governed by section 440.10(1), including the section 440.10(1)(e)(2) provision for gross negligence. The immunity for subcontractors within a vertical relationship, as in the present case, is governed by section 440.11(1), with the section 440.11(1)(b) intentional tort exception. The Court held that because the evidence submitted by the injured worker’s estate in this case did not support an intentional tort, and because the subcontractor that was sued was in a vertical subcontracting relationship with the employee’s drywall employer and was thus his statutory employer for workers’ compensation benefits, the drywall subcontractor was entitled to section 440.11(1) immunity. The Court noted that the gross negligence exception in section 440.10(1)(e)(2) did not apply in this situation, and that summary judgment in the civil suit was properly entered for the drywall subcontractor in accordance with section 440.11(1).

Villalta v. Cornn Intern., Inc., 109 So.3d 278 (Fla. 1st DCA 2013): in a companion case to the one above, the drywall employee killed on a construction site also brought suit against the HVAC contractor (heating, vacuum, air conditioning) on the job site, to which the First District noted that this was a horizontal relationship (as opposed to a vertical relationship in the case above), and that the immunity applicable was under Florida Statute 440.10 (ie, the gross negligence exception of a fellow contractor) as opposed to Florida Statute 440.11 (ie., the intentional tort exception for a vertical contracting relationship).  As such, the Court held that disputed issues of material fact existed as to whether the HVAC contractor was grossly negligent in creating and then failing to cover cut-out in floor at construction site where drywall subcontractor’s employee was working on a scaffold, or to warn of hazard created by the cut-out, such that the HVAC subcontractor was not entitled to statutory immunity as provided under Florida’s Workers’ Compensation Law, and thus precluding summary judgment in civil action for damages upon the death of the employee when he fell off scaffolding.

List Industries, Inc. v. Dalien, 107 So.3d 470 (Fla. 4th DCA 2013): in this case, an employee that suffered an amputation of a significant portion of his dominant hand while operating a piece of machinery brought an intentional tort claim against his employer. The Circuit Court for the Seventeenth Judicial Circuit in Broward County entered judgment on a jury verdict for the employee, to which the employer appealed. The Fourth District Court of Appeal (governs Broward and Palm Beach Counties) held that the employee did not establish a personal injury claim under the intentional tort exception to Florida’s workers’ compensation law’s exclusivity provision.  The Court ruled that the injured employee did not establish a personal injury claim under the intentional tort exception to Florida’s workers’ compensation law’s exclusivity provision — although the employee proved that there were prior accidents on different machines which performed different functions, the injured employee did not prove that there were prior “similar” accidents on the machine at issue, and thus, the employee did not prove that it was “virtually certain” that operating the machine would result in injury, as there had been no prior accidents on the machine, and the employee did not prove that he was unaware of risk and that the danger was not apparent, given that it was obvious to the injured employee that the machine could crush a hand from the times he saw steel being inserted into machine.

Gorham v. Zachry Indus., Inc., 105 So.3d 629 (Fla. 4th DCA 2013): in this case, an employee claims he was injured while working on a construction project for his employer, who contracted with Florida Power & Light (“FPL”) to build a natural gas plant in Loxahatchee, Florida. During the process of setting a wall at the plant, the employee was injured and apparently had a Florida workplace accident injury lawyer bring a personal injury lawsuit against his employer alleging an intentional tort had occurred, in order to avoid his employer’s statutory worker’s compensation immunity from tort.  The Court noted that the employee was working as a rigger on the FPL power plant construction site, when on  the day of the accident, the crew was attempting to lift and place a nine-ton wall.  Apparently, two cranes were available to lift the large pre-fabricated wall into place. A tag line to keep the wall from swaying as the crane lifted the wall was attached to the wall, and because of the danger of swaying, attention to the wind speed was very important.

The Court further noted that on the morning of the incident, the injured employee participated in the first lift, in which the wall was raised slightly. After the wall was vertical, the injured employee walked over to help others disconnect shackles off the wall, to which the crane operator began to move the wall alongside the cooling tower near the site, and once the wall got into that area, the wind was blowing.  The injured employee tried to stabilize the wall, which then began dragging him.  The crane operator sounded the emergency horn to signal that everyone was to let go and run, although the injured employee did not let go as he grabbed a rope around his arm and wrapped his arm around the tag line. The employee received significant injuries to his arm in the process. Apparently, the crane operator waited for the wind to die down before he made a second attempt, he then checked the wind again which was varying between 5 and 25 mph, and the wind continued to cause difficulties in completing the second lift.

The trial court entered summary judgment for the employer, which was affirmed by the Fourth District.  The District Court noted that the elements which the employee must prove for the intentional tort exemption to workers compensation immunity, are: 1) employer knowledge of a known danger, based upon prior similar accidents or explicit warnings specifically identifying the danger that was virtually certain to cause injury or death to the employee; 2) the employee was not aware of the danger, because it was not apparent; and 3) deliberate concealment or misrepresentation by the employer, preventing employee from exercising informed judgment as to whether to perform the work.  The District court held that there was no evidence to support the requirement that “[t]he 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.”

Moral of the Story: if you are a Florida employee injured at your office or somewhere else while in the course and scope of your employment, whether the workplace accident happens in Hollywood, Dania, Weston, Plantation, Aventura, Miami Beach, Bal Harbour, Coral Gables, West Kendall, Homestead, the Florida Keys, Cutler Ridge, Palmetto Bay, Orlando, Tampa, Fort Myers, Naples, Jacksonville, Stuart, Jupiter or another area within Miami, Fort Lauderdale or Palm Beach, know that there are many options available under Florida law that may require the retention of a Miami Florida workers compensation lawyer or a Florida workplace accident injury lawyer, given the many complexities involved when an employee is hurt at work and suffers a work-related accident or work-related injury while on the job.