Is Workers Comp All There Is For A Florida Work Injury?

When an employee is severely hurt in Florida, it may seem like workers comp provides far too little benefits to compensate. Often these cases spur lawyers who represent such workers to seek to circumvent Florida’s exclusive remedy law. At Appel Harden Law Group, we are frequently involved in these cases and believe it is important for both injured workers’ and employers to understand how complex this area of law really is.

“Exclusive remedy” vs. “Immunity”

In Florida, workers’ compensation cases are regulated by the Department of Financial Services and litigated in the Department of Administrative Hearings (DOAH), Office of the Judge of Compensation Claims (OJCC). As a result, circuit court judges have limited exposure to workers’ compensation legal issues. This creates a problem for employee plaintiffs and employer defendants. Plaintiff’s frequently use the word “immunity” when discussing attempts to circumvent the workers’ compensation system. This is an often misnomer and one that creates a negative bias in the mind of a circuit judge who is not familiar with workers’ compensation, especially in cases of catastrophic injury. Employers are not actually “immune.” Rather, employers have been given a “limited immunity” from civil tort actions. They are required to provide benefits to injured employees in a “no-fault” system. The system is a social bargain in which the legislature decided to make the worker’s compensation act the exclusive remedy. On the other hand, an injured worker who may have a legitimate claim to avoid exclusive remedy may face a judge who thinks that workers’ compensation is an open and shut case and is reluctant to hear about exceptions to the rule, especially when local business interests are involved.

The statute and case law

Florida’s exclusive remedy provision is found in Section 440.11. It is the enactment of the quid pro quo often discussed in constitutional challenges.
Section 440.11. Exclusiveness of liability:
(1) 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, except as follows:

As plainly stated in the embolden part of subsection (1), liability for workers’ compensation benefits as outlined in section 440.10 is substituted for “all other liability.” Is this really true? What does the word “all” mean? Does this cover discrimination and other non-injury related claims? The statute references section 440.10 but this subsection does not limit the nature of the actions which are extinguished in favor of workers’ compensation.

Certainly, an employer claiming workers’ compensation is the exclusive remedy for a discrimination claim wouldn’t get far with such an argument when considering the Act as a whole. However, an employer seeking refuge from an work injury relate tort claim would do well to point out to a circuit court judge deciding its fate on summary judgment that the legislature used the broadest of terms – the words “all liability” to combine with the term “exclusive” when describing the tradeoff. This is a tradeoff that has been held to be constitutionally sound over and over in Florida.

An employer should argue this apparent redundancy is more than poorly thought out sentence structure. It is a signal to would-be interpreters (circuit court judges) that the courts should not look for exceptions but rather apply the rule strictly and without considering the plight of an injured worker who may have been grievously injured by the negligence of his employer as might be the temptation in some cases.

An injured worker would do well to point out how much benefits have been eroded in recent years, making the system an inadequate remedy which wasn’t the bargain reached when the system was first put into place.

The unemotional application of 440.11 may be a challenge to a judge who does not ever see the flip side of the coin, where an injured worker causes his own, life-altering injury and where the employer is locked into millions of dollars of liability without regard to fault. What the legislature is saying is simply this – do not consider these matters on a case by case basis. The legislature has weighed the options for society and decided on what is fair. Injured workers and their counsel who consider workers’ compensation to be an inadequate remedy search for avenues to avoid exclusiveness for all work-related injuries. Employers and workers’ compensation insurance carriers push back. Without a doubt, the battle is all uphill for injured workers, but it is a battle that will likely continue to expand in attempts given the current set of circumstances involving perceived limited benefits and attorney’s fees available in the workers’ compensation venue. The point of this with regard to these cases is that the area of law in Florida is in flux – today’s version may not be the same tomorrow. There are scores of exclusive remedy appeals ongoing at any given time.

The exceptions

It may be considered ironic that the origin of exceptions to the exclusive remedy law is the same section which creates it. Accordingly, a plaintiff who is resisting a defendant employer who touts the double reference to exclusive liability and the replacement of “all” liability can argue the legislature really meant workers’ compensation is really only “sometimes” the replacement for tort liability because the same section immediately thereafter creates certain exceptions.

Failure to secure compensation exception

440.11(1)(a) begins the degradation of exclusiveness:

(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 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.

This seems like a harsh, but fair rule. An employer should have workers’ compensation insurance (or a self-insurance scheme), otherwise, it faces other forms of liability normally available to an injured party. The section also imposes a penalty for an employer’s failure to comply – the loss of common law defenses. This is quite a severe penalty as it means an injured employee only has to prove 1% negligence on the part of his or her employer to make a full tort recovery in circuit court. This is the Holy Grail for a plaintiff’s attorney and the attempted expansion of this provision is the aim of many artful plaintiff attorneys. While no case has, as of yet, approved or condemned the application of this provision, some have touched upon it and will be discussed in detail in further posts where I will also discuss other exceptions for injuries at work where workers’ compensation may not be an injured worker’s exclusive remedy.

Further questions?  Contact Attorney Jeffrey E. Appel at the Appel Harden Law Group.  Email  Phone: (863) 644-4003 or visit our website at