Frequently Asked Questions - Can You Sue Workers compensation for pain and suffering?
While there is no provision for payment of pain and suffering in a workers’ compensation claim, the answer is not that simple. There are some limited circumstances that allow you to file a lawsuit against your employer in civil court and seek pain and suffering as well as other types of benefits not covered by workers’ compensation. However, in Florida, an injured worker is typically limited in their ability to sue an employer outside of workers’ compensation.
When you are injured on the job, you will probably only be able to seek workers’ compensation benefits from your employer. You do not typically get to choose whether you want to pursue a workers’ compensation claim versus a personal injury lawsuit. An injured worker’s “exclusive remedy” is to seek workers’ compensation benefits with limited exceptions discussed below. This means that you cannot file a typical lawsuit against your employer for damages related to a work-related accident/injury except in the very specific situations discussed below.
Almost all Florida employers are required to carry workers’ compensation insurance to cover industrial accidents suffered by injured workers. An injured worker can receive workers’ compensation benefits associated with the injury, regardless of fault. An employer can either self-insure their claims or obtain private or state insurance to cover its workers.
If your employer did not maintain adequate workers’ compensation insurance at the time of your accident when required to do so, Florida law holds that you can file a lawsuit against your employer to recover damages associated with your on the job accident. In those situations, you could seek pain and suffering as part of your personal injury claim in circuit court. It should be noted that if your employer does have workers’ compensation insurance but simply denies your claim, you are typically unable to pursue a lawsuit against your employer in circuit court. Your case would remain under the jurisdiction of the workers’ compensation system.
Another scenario where you can sue your employer outside of workers’ compensation (and thus, sue for pain and suffering) is if your employer intentionally hurt you. Even if your employer was negligent or otherwise responsible for your injuries, you cannot sue your employer unless it was done intentionally with the specific intent of harming you. Mere negligence or carelessness, even if your accident could have easily been prevented, is insufficient to enable you to seek benefits outside the workers’ compensation arena and into the circuit court. The good news is that your on-the-job accident would still be covered by workers’ compensation if the accident was caused by your own negligence or carelessness. The workers’ compensation system was designed to provide benefits to injured workers regardless of fault, but in exchange, there are many types of benefits not covered in a worker's compensation case that would be considered in a personal injury lawsuit.
In addition to pain and suffering, workers’ compensation provides nothing for scarring, disfigurement, mental distress, loss of consortium/companionship and loss of future earning capacity. In fact, there are only two possible types of benefits available to an injured worker in a workers’ compensation claim. Those two types of benefits are the provision of medical care and the payment of lost wages. If your claim has been accepted by workers’ compensation, your employer and their workers’ compensation insurance carrier are responsible for providing your medical care. This includes a variety of things like office visits with your authorized doctor, payment of testing, and payment of medical treatment such as physical therapy, prescription medications, medical devices, injections, and surgery. This also includes payment of medical mileage to/from your medical appointments and payment of Impairment Income Benefits if assigned a permanent impairment rating once placed at Maximum Medical Improvement (MMI) by your treating doctors.
The only other type of benefit available to an injured worker in a workers’ compensation claim is payment of lost wages. And entitlement to lost wages depends on the specific facts of your particular case. Your employer and their insurance company are not responsible for anything else. This is why many injured workers would prefer to pursue their claim outside of workers’ compensation to seek other types of damages like pain and suffering. However, as indicated above, you are typically stuck in the workers’ compensation system unless your employer did not maintain adequate workers’ compensation insurance or intentionally injured you. If you are eligible to file a lawsuit against your employer in civil court, you would not be limited to those covered by workers’ compensation. In addition to medical care and payment of lost wages, you may be able to sue for pain and suffering, scarring, disfigurement, mental anguish, loss of consortium/companionship and loss of future earning capacity.
However, please understand that if you're on a job accident caused by the negligence of a third party (not your employer or a co-worker), you may have a possible personal injury case against that party. For example, let’s say you were involved in an automobile accident that was not your fault while working as a driver. You would, of course, have a workers’ compensation claim, and your employer and their insurance company would be responsible to provide benefits according to Workers’ Compensation Law. And, you would also have a possible third-party claim against the owner/driver of the vehicle that caused your accident. This would be a separate personal injury claim in which you could seek damages not includable in your workers’ compensation claim, such as pain and suffering, scarring, disfigurement, etc.. You would most likely need to retain two separate attorneys (preferably with the same law firm) to represent your interests for each case. A workers’ compensation attorney would assist you on your workers’ compensation case while a personal injury lawyer would represent you for the third party lawsuit against the negligent party not associated with your employer. If you have any questions about whether you have a possible secondary claim against some third party not involved with your employer and your workers’ compensation case, you should immediately consult with a lawyer.