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:
- 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.
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.