The Workers compensation system is broken. To that end, the Workers compensation act was passed in an effort to “to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer….” § 440.015, Fla. Stat. (2010). This statutory scheme “is based on a mutual renunciation of common-law rights and defenses by employers and employees alike.” Id. “Injured employees who fall within the scope of its provisions are to be swiftly provided compensation and necessary medical benefits by the employer, irrespective of fault as a cause of the injury.” Bakerman v. The Bombay Co., 961 So.2d 259, 261 (Fla.2007). Under this modified no-fault system, employers in compliance with the Workers’ Compensation Law are immune from their employees’ common law negligence actions for damages arising from work-related injuries. Id. at 262. The statute provides employers “immunity from civil suit by the employee, except in the most egregious circumstances. That “system” was fine in the 1800’s-It doesn’t work now.
First and foremost, anyone that has been injured on the job knows that the benefits provided are anything but quick and efficient. In turn for a right to quick and efficient payment of medical and indemnity benefits the injured worker lost the right to sue his employer, unless he can prove that the employer committed an intentional tort. That is a burden that quite simply cannot be met, and has not been met under the current statutory definitions of an intentional tort. The gauntlet is set forth in Florida Statute 440.11, and states in pertinent part:
440. 11 Exclusiveness of liability.—
(1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability … except as follows:
(b) When an employer commits an intentional tort that causes the injury or death of the employee. For purposes of this paragraph, an employer’s actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that:
- The employer deliberately intended to injure the employee; or
- 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.
Under the current statutory scheme, that was passed at the insistence of then Governor Bush, not only is the employer clothed with immunity, but so are all the sub-contractors working on the same job as the injured/deceased employee.
So the employee must prove that the act was virtually certain to result in injury or death (something that not one Plaintiff has been able to prove) AND if somehow you can prove that, you must then prove that the employer deliberately concealed or misrepresented the danger, so that the employee was not aware of the risk. Good Luck!!!! The concept of an exception to the statutory immunity afforded employers is a mere illusion.
The latest case to hold that the burden was not met is, R.L. HAINES CONSTRUCTION, LLC v. Eva SANTAMARIA, etc., et al. In the case, Victor Lizarraga (“the decedent”) died from injuries he received when he was struck by a 2000–pound steel column while working at a construction site. Eva Santamaria, his wife, on behalf of herself and their two children filed a wrongful death action against various defendants, including the general contractor, R.L. Haines Construction, LLC (“R.L.Haines”). R.L. Haines raised immunity pursuant to the Workers’ Compensation Law, (2010), as a defense. The trial court found that an exception to workers’ compensation immunity applied and presented the case to the jury, which rendered a verdict in favor of Santamaria. R.L. Haines appealed, contending that the trial court erred in holding that the exception to workers’ compensation immunity applied, and the 5th D.C.A reversed.
The facts of the case were simple. Victor Lizarraga died because he followed the orders of a general contractor on his job site. Had he not followed the orders he would of been fired. Victor was hired to erect steel columns. Each column stood thirty-three feet high and weighed over 2000 pounds. The columns were attached to bolts anchored to a concrete base by an epoxy adhesive. Before employees could install the columns, the epoxy adhesive had to cure for a certain amount of time, depending on the temperature of the base concrete. According to the epoxy installation instructions, loads were not to be applied until the cure time had passed.
On January 13, 2010, Victor secured several anchor bolts to concrete slabs with epoxy adhesive. The epoxy installation instructions called for seventy-two hours of drying time. R.L. Haines nonetheless instructed Victor to begin setting the steel columns on January 15, 2010, after only forty-four hours of drying time. Victor and his co-employees erected four columns that morning. While Victor was tightening a wire attached to one of the columns, the column fell on him, causing his death.
Simple enough. Instructions said to cure for 72 hours. Supervisor says after 44 hours erect the 2000 pound columns. One of the columns falls and kills Victor. Seems to me that if you don’t follow instructions while erecting a 2000 pound column, it is a virtual certainty that the column is going to fall and kill you. Unfortunately the 5th DCA, didn’t see it that way, and reversed the verdict. The court reasoned that the evidence did not establish that it was virtually certain that Victor would be injured or killed as a result of the resumption of work before the epoxy had fully cured. There was no evidence of prior similar accidents, and moreover, the remaining three columns in the set—all of which were subject to the same shortened curing period—remained anchored to the base and standing upright.
We remain hopeful that the entire Workers Compensation Act will be found Unconstitutional.
Illegal Aliens Entitled to Workers Compensation
Workers Compensation Death Benefits Too Low
Mark Kaire has been practicing law in Miami for nearly 30 years. He is dedicated to helping the injured people of Miami receive compensation. Mr. Kaire has been blogging on Miami’s legal issues for many years.