Workers’ Compensation or Personal Injury? Election of Remedy (Florida)

The remedies available under Florida’s workers’ compensation system and its personal injury laws are significantly different in many ways. The most important difference may be that workers’ compensation does not compensate for pain and suffering (non-economic damages). For this reason, many people wish to pursue their remedy under the personal injury system.

Easier said than done….

The workers’ compensation system is essentially a no-fault system. Once eligibility is established, the benefits are supposed to begin. Establishing eligibility is usually as simple as showing that the accident occurred in the course and scope of employment. Fault is rarely an issue.

It is because of this important element that injured workers have lost the right to be compensated for pain and suffering. This element also accounts for the employer having almost absolute immunity from lawsuits seeking damages under the personal injury system.

The language granting the immunity is contained in Florida Statute 440.11(1). The exceptions [to the immunity] are contained in Sections 440.11(1)(a) & (b).

Exception (1)(a) applies to employers who have failed to secure workers’ compensation insurance or its statutory equivalent. This employer can be sued for workers’ compensation benefits or personal injury damages under traditional theories of negligence. The successful negligence litigant may be awarded compensation for pain and suffering. (Most employers are properly covered. Unfortunately, the ones who are not, commonly do not have enough money to provide workers’ compensation benefits or pay personal injury damages.)

The more difficult scenario for suing the employer for personal injury damages, and the only one available in most cases, is outlined in section (1)(b). The Plaintiff must prove that the employer committed an intentional tort or “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.” Suffice it to say, these standards are nearly impossible to prove and are rarely present. (Prior to 2002, the hurdle was easier to overcome. For example, instead of having to prove that conduct was virtually certain to result in injury or death, an employee, had only show that the employer engaged “in conduct which is substantially certain to result in injury or death.” Although both standards are higher than the traditional negligence standard, the current standard has, in practice, proven virtually impossible to attain. Not so the prior standard.)

Unfortunately, since 2002, Florida’s Republican-controlled legislature has made it more difficult to sue employers for personal injury damages while consistently reducing the value of benefits available under the workers’ compensation system.

Contact us at 866-785-GALE or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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