Of all the ways and in all the locations that someone can be injured, one of the most common is while on the job. Whether an employee trips over boxes on an office floor, a construction worker is injured after falling from a scaffold, a machinist loses a finger in heavy machinery, or a teacher is injured trying to break up a fight, injuries at work can happen to anyone, even in the most sedentary or “white-collar” professions.
Why, then, do we not hear more about employees suing employers for negligence? Especially in situations in which an injury is not the result of a natural and expected consequence of being in a dangerous profession, but when the injury is the result of an employer’s failure to take proper safety precautions?
Workers’ Compensation Immunity
The answer lies in what is known as workers’ compensation immunity. Workers’ compensation law prohibits an employee from suing an employer for almost any type of injury on the job, outside of the workers’ compensation system itself.
The logic on this prohibition originally was intended to benefit the worker. Unlike the personal injury system, in which a victim must prove negligence and liability in a court system that can often take many years after a lawsuit is filed, the workers’ compensation system is much faster and does not require that the employee prove the employer is negligent.
Thus, the logic went, the workers’ compensation system would provide an injured worker with payment for medical expenses and lost wages quickly, efficiently, and without having to prove who, if anyone, did anything wrong. The worker gets paid while recovering from injuries, and gets paid quickly.
In return, the worker gives up the right to bring a traditional personal injury suit against the employer. Unlike personal injury suits, damages for pain and suffering, anguish, or loss of ability to earn in the future, are not rewardable in compensation cases.
The trade-off is not optional; the worker can not elect a personal injury negligence suit or workers’ compensation benefits. If workers’ compensation benefits are available, the worker must use those benefits, and be limited by the damages that workers’ compensation provides and cannot sue in negligence, even if the workers ‘compensation does not fully repay the worker for damages sustained.
System May Be Broken
As many can tell you, the workers compensation system does not work as efficiently as it was intended to do, and in many cases workers are denied benefits to which they are entitled, or they have compensation benefits cut off before they have received full payment for treatment or for lost wages.
Because workers are giving up their access to courts by waiving any right to bring a personal injury lawsuit, Courts have looked critically at attempts to limit the workers’ rights to compensation benefits.
In an effort to curtail workers’ compensation claims, the Florida Legislature in 2009 limited an employee’s right to collect attorney’s fees. A recent Florida Supreme Court case held that limitation unconstitutional, citing the difficulty that employees would have obtaining legal representation with that cap. A cap on temporary total disability benefits was also stricken by the Court.
When Employers Can be Sued
There are only limited circumstances under which an employee can sue an employer for negligence in a traditional injury lawsuit for full damages. The employee must prove that the employer knew that a danger was “virtually certain” to result in injury, and that knowledge must be based on “similar accidents” or warnings about the same specific danger that caused injury.
An employee must then prove that the danger was not obvious or apparent and that he or she was not aware of the risk. Then, the employee must demonstrate that the employer covered up, hid, or concealed the dangerous condition and did so deliberately. Additionally, the employee must show all of these factors, by “clear and convincing evidence,” a higher burden than the preponderance of the evidence standard that exists in most personal injury cases.
The immunity is so comprehensive that it applies not just to the employer, but to other employees so long as they are acting in furtherance of their job. Thus, a construction worker injured by the carelessness of another subcontractor on the same construction job would be barred by compensation immunity, assuming the subcontractor was also employed or covered under compensation by the same employer.
Exceptions to Compensation Immunity
An employee can bring a suit against any third party that causes injury, so long as the third party is not working for the same employer. Thus, a construction worker injured when a drunk driver carelessly drives into the construction site and hits him or her could sue that driver. A schoolteacher who is injured when a defective product malfunctions while he or she is working, could still sue the product’s manufacturer the way anybody ordinarily could in any injury case.
Sometimes, workers’ compensation insurers, in efforts to avoid payments, will deny compensation benefits, claiming that an injury was not caused while the employer was on the job. In those cases, the employee would have the right to bring a normal negligence action.
There are also some cases that hold that sexual harassment or injuries caused by improper sexual touching are not injuries sustained during the ordinary course of doing one’s job, and thus, the workers’ compensation immunity would not apply.
No matter where or how you are injured, make sure you have attorneys who understands how to overcome all the legal defenses that may be put up against you. Contact Brill & Rinaldi today about a free consultation to discuss your case and your injuries.