Injured workers who become frustrated with the limitations associated with the Florida Workers’ Compensation system often have questions with regard to whether they are permitted to bring a separate negligence action against the employer, and thus go beyond the benefits available under the Florida Workers’ Compensation Act. The reason why an injured worker might wish to go beyond the benefits available under the workers’ compensation act are obvious – under the Florida Workers’ Compensation act, an individual has no right to select his or her own physicians, is never paid for all of his or her lost wages, is unable to bring a claim for pain/suffering/loss of enjoyment of life/loss of consortium, cannot force an employer/insurance carrier to pay a lump sum to compensate him or her, and experiences countless other limitations on their right to full redress of their injuries. Unfortunately, except in extraordinarily rare instances, the injured worker is indeed limited to the benefits available under the Florida Workers’ Compensation act.

One of the most fundamental principles of the workers’ compensation law (contained in Florida Statute 440.11) is that an employer who purchases a policy of workers’ compensation insurance enjoys immunity from a separate negligence action (Florida workers compensation immunity). More specifically, in exchange for no – fault coverage for injuries (an injured worker need not prove negligence on the part of the employer in order to qualify for workers’ compensation benefits), the employee relinquishes – under almost all circumstances – the right to bring any type of claim, other than a workers’ compensation claim, for his injuries.

The provisions of Florida Statute 440.11 are as follows:

  1. 11 Exclusiveness of liabilityflorida-workers-compensation-immunity

(1)   The liability of an employee or prescribed in statute 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employee or to any third – party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependence, next of kin, and anyone otherwise entitled to recover damages for such employer at law or in admiralty on account of such injury or death, except as follows:

(a)   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 for damages on account of such injury or death. In such action, the defendant may not plead as defense that the injury was caused by negligence of a fellow employee, that the employee assume the risk of the employment, or that the injury was due to the comparative negligence of the employee.

(b)   What 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 in 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 set forth above, the only way to get beyond this standard workers’ compensation immunity is under circumstances where the employee is able to prove, by clear and convincing evidence, all three of 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; and
  1. The employee was not aware of the risk because the danger was not apparent; and
  1. The employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

In the recent case of Figueroa v. Delant Construction Co., 118 So.3d 272 (Fla. 3DCA 2013), the court made the following significant comments:

“In the instant case, the record conclusively demonstrates that there were no prior similar accidents or a specific warning explicitly identifying a known danger, which would thereby establish that Master Construction (the employer) engaged in conduct it knew was virtually certain to result in injury or death to Figueroa (the claimant). Further, the unrefuted evidence demonstrates that the danger or risk was apparent to Figueroa, and that there was no concealment or misrepresentation by Master Construction. Therefore, as Figueroa cannot establish as a matter of law that the intentional tort exception to workers’ compensation immunity is applicable, the trial court properly entered final summary judgment in favor of Master Construction.”

As can be seen from the above information, the standard for getting beyond Florida workers compensation immunity is extraordinarily high. This high standard is in place for a very specific reason – employers want the certainty of knowing that any and all injuries sustained by their employees will come under the Florida Workers’ Compensation system, and that they will not be exposed – except under the most unusual of circumstances – to a negligence action in circuit court before a judge or jury.

At Christopher J Smith, P. A., we are fully committed to the representation of injured workers to ensure they are promptly provided with all the benefits to which they are entitled. If you have questions for a Tampa workers’ compensation attorney regarding any aspect of your Florida workers’ compensation case, please do not hesitate to contact us.