Overcoming Florida’s Workers’ Comp Bar

By Osborne & Francis
July 18, 2024

Can I sue my employer if I am injured on the job? In most cases, no, but you have options.

An employee is barred from suing their employer and coworkers for on-the-job injuries involving ordinary negligence. Under Florida's workers' compensation system, both the employee and his or her employer give up certain rights in order to facilitate quick and efficient outcomes resulting from incidents involving on-the-job injuries. Florida employers are required by law to provide, and to secure, payment of benefits to an injured employee, or to his or her medical providers, for damages, including lost wages, medical expenses, disability, and/or death benefits. Therefore, most work-related accidents will be addressed by workers' compensation laws. Damages under workers 'comp are very limited and most of the time will not completely and fairly compensate your or your loved one for their injury.

Under workers' comp, you are not entitled to past and future pain and suffering and the compensation for death is limited to $7,500 for burial expenses and $150,000 paid to survivors, in installments. The system is designed to limit recoveries and does not come close to adequately compensating those who have suffered serious injury or families who have lost a loved one.

You must consider the following exceptions or scenarios if you are injured on the job or before you consider settling your or your loved one's workers' comp claim:

  • Injured due to the negligence of a third party while on the job. For example, if you drive for a company and you are rear-ended while you are at a stop, you can bring claim against the negligent third party driver.
  • Workers' comp claim denied. The employer improperly denies your workers' comp claim in bad faith. There are several statutory defenses an employer may claim to deny your claim for benefits.  Common denials are: course and scope defense -- employee was not actually injured on the job,  intoxication due to alcohol, drugs, or medication, fraud/misrepresentation, or failure to give the employer timely notice within 30 days of the injury. If the employer's insurance carrier arrives at the incorrect conclusion in denying a claim, you may be able to bring a civil lawsuit.
  • The employer's wrongful conduct rises to the level of an "intentional tort." This exception is extremely fact specific and the legal burden creates an almost impossible hurdle to overcome. In order to qualify under this exception, the employee must satisfy the following elements:
  1. the employer engaged in conduct that the employer knew, based on similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee;
  2. the employee was not aware of the risk because the danger was not apparent; and
  3. the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.
  • Injured due to the actions of a co-worker. Florida's workers' comp laws prohibit you from suing a coworker for ordinary negligence. There is an exception for gross negligence. Gross negligence is defined as an act or omission that a reasonable, prudent person would know is likely to result in injury to another. This may be your path of least resistance to proper compensation. An employer is vicariously liable for the actions of their employees performed in the course and scope of their job. While the grossly negligent coworker will likely not have any insurance or assets to fully compensate you, the employer's insurance policy often provides coverage.  As part of the basic workers’ comp insurance called Employers’ Liability Coverage (Coverage B), provides: Bodily Injury By Accident – $100,000 each accident.
  • If the property is owned by someone other than the employer, and there was negligence associated with the property owner’s maintenance or care of the property, you may have a cause of action for injuries against the property owner. In Florida, property owners have a non-delegable duty to safely maintain their property. The property owner cannot escape liability just because they leased the property to the employer.
  • The employer failed to carry workers' comp insurance. The employer failed to comply with Florida's workers' comp law and you may proceed with a civil lawsuit.
  • Injured by defective equipment or a defective product. You may have a claim against a negligent third party that contributed or caused your injury and you can sue the manufacturer.

Please contact Ryan Fletcher if you or a loved was injured or passed away while on the job.

C. Smith

5 star icon

“I am so thankful for EVERYONE, the entire staff at Osborne & Francis Law, for mentoring me through the mediation process with my hip replacement failures. I didn't realize how MUCH pressure they relieved me of by helping me deal with the reality of this traumatic time in my life, as it was OVER so quickly with a positive result. My family is grateful to have their mom HAPPY & FOCUSED on the future, rather than worrying over what happened in the past! FAST FORWARD, we are LIVING LIFE to the fullest once again!”


5 star icon

Quick and fair resolution to a unique case. On advice of my own attorney, I engaged Joseph Osborne of Osborne & Francis of Boca Raton, FL. Mr. Osborne had considerable experience in cases such as mine and the results showed that. Mr. Osborne and his staff were very helpful, kept me up to date, and listened to my input. The settlement was very fair as far as I am concerned.

J. Davis

5 star icon

“I couldn’t have asked for a better lawyer/ firm — everything was done professionally exactly how I wanted. Due to COVID my personal attorney Mr. Garcia was still able to make things work in a timely manner and he never made me feel like he wasn’t working. Overall I’m happy with how my case turned out and I would recommend him and this law firm to anyone. 100% satisfied.”

T. Andrews

5 star icon

“Attorneys Greg Francis and Ryan Fletcher at Osborne & Francis Law Firm represented me in my personal injury case.The defendant drew a line in the sand and was adamant on a settlement amount I was almost willing to accept. After the dust settled and the smoke cleared, we settled for 3 times that amount!!! When they say ‘Real Tough Lawyers,’ they mean it.”

Erica F.

5 star icon

"Best personal injury attorney around, I could not be happier! I was seriously injured in a car accident and Osborne and Francis helped me through the entire process. I was blown away by how knowledgeable the staff and attorneys are at this incredible law firm. I would not hesitate to recommend this law firm to friends and family!"

E. Holland

5 star icon

Dennis and the other Osborne & Francis staff were amazing! Our case was HUGE and required tender loving care. Everyone on our case did their part by putting all the puzzle pieces together. We were given step by step updates and put at ease when our nerves got the best of us. For every inquiry we made we received a timely response...You are appreciated!

Ready For Your Free Consultation?

Fill Out Our Form For Your Free Consultation

Hiring a lawyer is the first step towards recovering a better quality of life. At Osborne & Francis, we devote our undivided attention to each client, and all communications are held in the strictest privacy. Contact us by filling out the form or calling us directly at (561) 621-1385.

Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.