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Can I Sue My Employer If I Get Injured?

By Mark Nonni

When an employee suffers from a work-related injury he has the right to file a claim through his employer’s workers’ compensation insurance.  However, many people don’t realize that the employee does not have the right to file a lawsuit against his employer or co-workers.

In Florida, the law states that filing a workers’ compensation claim is the exclusive remedy available to an injured employee due to any negligence on the part of the employer. If the employer has properly secured workers’ compensation coverage for the injured employee, then the employer is provided with immunity from a lawsuit by the injured employee.  This is the general rule, but there is a limited exception.

Under the intentional tort exception to Florida’s workers’ compensation laws, an employer does not have immunity from a lawsuit if the work-related injury is caused by egregious conduct of the employer.  In this situation, an injured employee can sue the employer if he can prove that the employer exhibited a deliberate intent to injure him, or engaged in conduct which was substantially certain to result in his injury.  Although the employee does not have to prove that the employer wanted to injure him, he must prove that the employer was aware of the dangers and deliberately ignored them at the expense of his safety.

As you might imagine, this exception can be very difficult to prove.  Facts showing negligence, whether slight or gross, by the employer are not sufficient to render this exception applicable.

Moreover, an employee cannot lump together multiple negligent acts and omissions to prove that the employer’s conduct made his injury certain to occur.

Additionally, the employer’s knowledge and appreciation of the risk of occupational hazards is insufficient evidence to prove intent.  And, surprisingly, a serious Occupational Safety and Health Administration (OSHA) violation would not be sufficient alone to render this exception applicable, because an OSHA violation only requires a substantial probability, not a substantial certainty, of injury.

If an injured employee can prove that the intentional tort exception applies, then the employee can file a workers’ compensation claim, receive workers’ compensation benefits, and still file a lawsuit against his employer as long as he does not pursue the workers’ compensation claim to a conclusion on its merits.  Finally, aside from the intentional tort exception, the employer does not have immunity and can be sued by the injured employee if the employer did not properly secure workers’ compensation coverage for the injured employee.

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