Florida Construction Injury Lawyer: Electing a Remedy in a Workers’ Comp Case Can Be A Dangerous Proposition

Brandon Stein

By: Brandon Stein

If you or someone you know was injured in a construction accident, contact our North Miami Personal Injury Lawyers today.

All Florida construction lawyers that sue for work-related injuries should be well aware of the Workers’ Compensation Immunity statute.  As more clearly spelled out in my August 18, 2012 article, the Florida legislature has made it extremely difficult, if not impossible, for Florida lawyers to sue their client’s employer for a work-related accident.  Ultimately, the moment the injured worker demands and accepts benefits from his or her employer’s workers’ compensation insurance carrier, an election of remedy has occurred.

Putting aside for a moment the difficulty in piercing the immunity afforded to employers, another obstacle is often times presented to lawyers in cases involving injured construction workers in Florida.  As a Naples construction lawyer, I have become extremely familiar with the “election of remedies” defense that is frequently raised by companies that are sued for job-related injuries.

Essentially, once a worker is injured and accepts benefits provided by a workers’ compensation insurance company, the worker has elected a remedy.  However, Florida law is not entirely clear on this issue, for it is far from black or white — and like much of the law, this area is a shade of gray.  Yet, what Florida law appears to be clear on is that should the injured worker receive a settlement in his or her workers’ comp case, then an election of remedy has apparently been achieved.  So, “electing a remedy” is such a big deal for a Fort Myers construction injury lawyer.

Often times, when a person is injured in a work-related accident, two separate cases are opened: (1) a workers’ compensation case and (2) a personal injury case against the employer.  These two types of cases are ongoing at the same time and the Florida courts have addressed this in a number of decisions relating to “election of remedies.”  Basically, if an injured person receives workers’ compensation benefits and is also pursuing a separate personal injury case with their South Florida lawyer at the same time, then “election of remedies” must not be overlooked.

According to certain decisions by Florida appellate courts and the Florida Supreme Court, if it is determined that the injured person has elected a remedy as it relates to workers’ comp treatment, then he or she may be precluded from continuing to pursue a personal injury case against their employer.

This is obviously a very complex area of law and certainly cannot be fully explained and outlined in one article.  However, if a Fort Lauderdale construction lawyer represents a client injured on the job, then one must be mindful of this important issue and fully inform and educate the client of the ramifications of electing a remedy.


Florida Construction Injury Lawyer: Injured on the job? Florida says think twice before suing your employer

As a Florida personal injury lawyer who sues employers, the Florida legislature has made it extremely difficult bring a lawsuit when injured on the job.  Essentially, as long as the employer carries workers’ compensation insurance, an employee injured on the job cannot bring a lawsuit claiming employer negligence.  Simply put, in order to successfully bring a claim against an employer, the conduct must rise to the level of an intentional tort.

According to Florida statute section 440.11, when an employee has been injured on the job, and the employer carriers Workers’ Compensation Insurance, the employee must prove one of the following:

1. The employer deliberately intended to injure the employee; or
2. 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.

In just about every case litigated in Florida against an injured person’s employer, the lawyer for the employer raises the affirmative defense of workers’ compensation immunity — relying upon the above mentioned Florida statute.  Additionally, in nearly every case for a personal injury lawyer in Florida, the burden rests on the injured person to produce evidence to prove his or her case.  As intimidating as the statute quoted above is to read and comprehend, even more overwhelming is the fact that the injured person must provide sufficient evidence in order to satisfy that statute.

Getting injured on the job, incurring a significant amount of hospital bills, missing work, and completely altering your lifestyle because of injury is hard enough.  Yet, the Florida legislature continues to make it increasingly difficult to recover a damage award against your employer.  Perhaps the reasoning behind the enactment of this statute is to prevent the injured person from recovering both workers’ compensation benefits from the employer’s insurance carrier, and a personal injury damage award from the employer itself.

Every injured person has the right for his or her day in court.  However, this statute prevents Florida personal injury lawyers from pursuing a negligence claim against an employer on behalf of an injured employee.  Several cases have been heard by Florida appeals courts and the Florida Supreme Court surrounding the issue of whether the injured employee has submitted enough evidence against his or her employer.  The bottom line is that it all comes down to the evidence and testimony that is elicited by the lawyer of the injured employee.

Florida statute section 440.11 does not completely bar all claims against an injured employee’s employer, but it certainly does not make it easy.  While Florida law makes it difficult, and employers always hide behind this workers’ compensation immunity statute, I urge all workers that are injured on the job to pursue a personal injury claim against your employer — albeit a difficult claim.  Because when it comes down to it — what other choice do you have?

By: Brandon Stein