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If I’m Injured on the Job in Florida, Should I File for Workers’ Compensation or Sue for Personal Injury?

Posted on Wednesday, November 1, 2017
Workers' Compensation

Many people do not understand the difference between a workers’ compensation case and a personal injury lawsuit. But a Florida employee who is injured on the job will need to be able to make the important distinctions that exist between the two.

Workers’ Compensation Basics

Workers compensation benefits are available to a worker who is hurt on the job, regardless who, if anyone, was at fault for the injury. Florida workers’ compensation laws cover most but not all employees, although certain classes of employees are typically excluded, such as:

  • Independent contractors
  • Business owners
  • Casual workers
  • Volunteers
  • Employees of private homes, farmers and farmhands
  • Railroad and maritime workers
  • Those who are employed by companies with fewer than three to five employees
  • Federal workers who are covered by federal workers’ compensation insurance

Workers’ compensation will typically pay for medical expenses, rehabilitation, and some wage loss, but to obtain these benefits, your claim must be filed according to Florida workers’ compensation law:

  • Report the accident to your employer as soon as possible, but no later than 30 days after it occurred.
  • Your employer is required to report your injury as soon as possible, no later than seven days after their knowledge.
  • The insurance carrier must send you an information brochure within three days of receiving notice from the employer.
  • You will need to seek treatment from a medical provider that is authorized by your employer or the insurance company.
  • Florida workers compensation coverage will replace part of your lost wages if the doctor says you must not work for a certain period of time due to the injury or illness.

Most injured workers recover benefits in a timely manner in a workers’ compensation claim, but for some, it may be necessary to file the claim with the Florida Division of Workers’ Compensation.

Personal Injury 101

Anyone (not just an employee) who is injured due to the carelessness or negligence of another may be eligible to bring a personal injury lawsuit. But in order to recover damages, the injured party, or plaintiff, must prove that:

  • The defendant acted in a negligent manner.
  • Their negligence caused the plaintiff to be injured.
  • The injury caused the plaintiff to suffer damages.

The plaintiff must also show proof of the amount of damages that resulted from the injury. These damages might include medical expenses, lost wages, property damage, the loss of future earning capacity, and pain and suffering.

Although workers’ compensation provides financial as well as other benefits to an injured worker, the amount is relatively modest compared to the awards that can be obtained in a personal injury lawsuit. Personal injury cases sometimes produce awards in the thousands or even millions of dollars, but there is no guarantee what kind of award a case might bring, especially if it goes in front of a jury, which can be unpredictable.

Personal injury cases may be initiated immediately after an injury, or any time up until the statute of limitations has expired; in Florida this time period is within four years from the date of the accident. If the matter cannot be settled out of court, the plaintiff’s attorney will file the lawsuit in civil court.

Workers’ Compensation Claim or Personal Injury Lawsuit?

While no proof of fault needs to be made for workers’ compensation benefits to be paid, if workers compensation benefits are made available to an injured worker, he gives up his legal right to sue the employer for personal injury or wrongful death, except in certain limited situations:

  • The employer was required to carry workers’ compensation insurance but failed to do so.
  • The employer intentionally caused harm to the employee.
  • The injury involved a defective product or a toxic substance.
  • The worker was injured due to the negligent conduct of someone other than his or her employer or a co-worker.

Under those circumstances, an injured employee might be able pursue a personal injury lawsuit against their employer or a negligent third party, but generally speaking, most workers are barred from suing an employer for a workplace injury, as long as they are covered by workers’ compensation insurance.