Frequently Asked Questions - When can you File a Personal Injury Case instead of Worker's Comp?
Generally speaking when you are injured at work, your remedy is a workers’ compensation claim. Even if your Employer or coworker was negligent in causing an accident that results in injury to you, the law does not allow you to sue your Employer for the accident. This has been the case since the first part of the 20th century. Before then you were allowed to sue your Employer for a work place accident, but this system caused all sorts of problems. First, suing your Employer puts you in a civil litigation system that does not operate quickly. It doesn’t operate quickly today, and it didn’t operate quickly a year ago. Imagine being a worker in the early 20th century that lost an arm in a machine at work. Your need for medical care and lost wages would be immediate, but your ability to receive these benefits wasn’t. Back then you probably wouldn’t have had health insurance; many people don’t have it today. So the only ways to get medical care was to pay for it yourself, rely on the benevolence of your employer, or seek charity. As a result many people could not get medical treatment for very serious injuries. Sure you could sue your Employer in tort for your injury, but that was a long drawn out process often taking years. And when you sued your Employer in tort, they may have had defenses to defeat your claim. They could argue to the judge that your negligence caused the injury, that you assumed the risk, or any of a dozen of defenses to a tort claim. If you won, you got money for medical care that you needed a long time ago. If you lost, you got nothing. Of course, the same problem that the early 20th century injured worker faced getting medical care was also a problem when it came to lost wages. If you lose your job as a result of a serious injury and you have no money coming in for the couple of years it takes you to get to court, how do you survive?
The lack of the availability of immediate medical care and lost wages led ultimately to the introduction of workers’ compensation systems in all 50 states, as well as several federal workers’ comp programs. These systems were designed to give the injured worker immediate access to medical care and lost wages without going to court. But big industry demanded something in return. If it was their responsibility to provide certain benefits regardless of who was at fault, then in exchange the workers would lose the right to sue for certain damages that the general public could sue for. There would be no pain & suffering, loss of enjoyment of life, loss of consortium or any of the other non-economic damages you could potentially receive in a law suit.
Current workers’ compensation laws vary from state to state, but for the most part you can’t sue your employer for negligence in an accident. There are however certain circumstances where workers comp is not your only remedy.
Someone Else is At Fault
The most common situation where you are able to sue even when you have a workplace accident is when the accident is caused by somebody other than your Employer or coworker. For example, let’s say you work as a delivery driver. During the course of making a delivery, somebody carelessly slams into the back of your truck. As a result, you sustain a whiplash injury. You now have two cases arising out of the same accident. The first is a workers’ comp claim, because the accident happened while you were working. The second is a negligence claim for bodily injury against the person who ran into the back of your truck. And each case has its own specific relevant facts and set of laws that govern how the respective case should be handled. For that reason, you should contact a law firm that has attorneys who are familiar with both types a law. And because there are legal rights and practical considerations that are very time sensitive, it’s imperative to contact a law firm as soon as is practical. Waiting even two weeks can have very significant negative effects on your cases.
The Employer has no workers comp insurance
Another situation where you are allowed to sue your employer for negligence is when they fail to carry insurance. If that situation arises, the injured worker can either file a claim for workers’ comp benefits, or he can elect to sue the employer in civil court. You can’t do both though.
The Employer denies a workplace accident occurred
If the Employer denies that a workplace accident caused the injury, you can sue in tort. The Employer can’t refuse to provide workers’ comp coverage saying that the injury wasn’t caused by a workplace accident and at the same time say you can’t sue them because they are your Employer. Let’s say that you clock out of work. Immediately after clocking out, you head to your car in the parking lot right next to where you work. And as you are doing so, you trip and fall in a hole in the parking lot causing serious bodily harm. You report the accident to your Employer and they refuse to provide any benefits because they say you were off the clock. So you hire an attorney to sue the owner of the parking lot. In the course of his investigation, the lawyer finds that the owner of the lot is none other than your Employer. Well, your Employer can’t have it both ways. They either have to treat the injury as a workplace accident, or they have to defend it in civil court just as if any other member of the public slipped and fell in a lot that they had a duty to maintain.
The Employer Intentionally Injures the Employee
Although an employee can’t sue an Employer for negligence, even gross negligence, the worker can sue for an intentional injury. Physically attacking an employee is an obvious intentional act that allows you to sue the attacker even if that person is a coworker. For example, let’s say a crazed coworker goes on a shooting rampage at work. Clearly those who are injured can sue the employee because his act of shooting up the office is intentional. But what about suing the Employer because they didn’t take appropriate measures to provide for employee safety or because they ignored warning signs that the crazed gunman may become dangerous? Most likely the answer is that the Employer cannot be sued. They need to provide workers’ comp benefits to the victims, but they are most likely immune from a lawsuit. This is because Florida courts have determined that unless the Employer knew that death or injury was substantially certain to occur as a result of their actions, they are immune from suit. This is an extremely high standard and rarely occurs. Many employers are negligent, even grossly negligent, but this is not the same thing as intentionally injuring or killing an employee. Removing safety devises, violating OSHA requirements, and failing to remove violent employees from the workplace are all examples of what courts in Florida have determined as not rising to the level of an intentional tort that would allow an Employee to sue them.
The Injured Person is not an Employee under the workers’ comp statute
Employees, as that term is defined by workers comp can’t sue an Employer for negligence. Examples of people who are not considered employees under the workers’ comp statute are independent contractors, many volunteers, real estate salespeople, and certain types of drivers are examples of people who are not considered employees under the workers’ comp statute. If you’re not an employee, then workers’ compensation immunity from suit does not apply.
This is just a brief summary of when you can sue in Florida and when you are limited to the benefits provided by workers’ compensation. As indicated above, there are certain situations where you have both a lawsuit and a workers’ comp claim arising out of the same accident. The laws governing these claims are complex, many, and evolving. Determining what type of claim you have is not something that can be done with an internet search and casual understanding of accident law. If you are injured, contact a professional at TrialPro immediately to help you determine what types of case or cases you may have and the best way to handle them!