One of the most common questions our firm gets asked is whether an injured worker (“IW”) is able to bring a separate negligence action against the employer.
The answer is “it depends.”
Under the Florida Workers’ Compensation Act, an IW is limited in the benefits they may receive. For example, under this Act, the IW is unable to choose their treating physician, the IW is only entitled to partial lost wages, and the IW is barred from recovering for pain and suffering. These are all reasons an injured worker might want to bring a separate negligence action.
Under Section 440.11 Florida Statute, in order for an IW to circumvent workers’ compensation immunity and bring a separate cause of action, the IW must prove all three of the following elements:
- 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.
The standard for getting around Florida workers’ compensation immunity is extremely high, but Van Dingenen Law is one of the few law firms that has been successful in arguing that an IW should be allowed to pursue a separate negligence action against the employer.