Imagine you are working on a construction site and suffer a serious injury. You need to go to the hospital and have extensive medical care and treatment. Normally, your employer’s mandatory worker’s compensation insurance pays 100% of your medical bills. But, what happens if your employer failed to carry worker’s compensation insurance? Who is going to pay the bills? Who is going to pay for your lost wages? The answer is – your employer.
Florida law requires an employer to carry worker’s compensation insurance 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 re-employment at reasonable cost to the employer. (Florida Statute 440.015). The worker’s compensation system was designed to take away the right of a worker to common law remedies such as a lawsuit against their employer when injured on the job in exchange for a guarantee of protection for expenses and loses. While the merits of the system and the failures and limitations are the subject of continual debate and litigation, the purpose of this blog post was to address the limited instance of when an employer does not have the required insurance.
The law allows an employee to directly sue the employer under such circumstances. In fact, Florida law removes the ability of an employer to raise various defenses including efforts to blame other employees, to accuse the injured employee of assuming the risk of injury or blaming the injured employee for his or her own carelessness. (Florida Statute 440.06).
The law specifically allows an employee to directly sue an employer that does not secure payment of worker’s compensation for all damages that occur as a result of such injury (or death).
Many times, employers hire employee leasing companies in order to provide such benefits as worker’s compensation, payroll, tax management and other human resource type functions. Regardless of such outsourcing, it remains the employer’s responsibility to ensure that all necessary benefits are in place to protect the employee in the event of injury or accident.
At Jeffrey R. Davis, P.A. we are presently working on several cases where employees were injured while in the course of their employment where the employer failed to provide worker’s compensation benefits. The employer becomes directly responsible for damages that exceed the limited benefits provided by worker’s compensation. For instance, worker’s compensation coverage provides an injured employee with a portion of the average weekly wages of the injured employee on the date of the accident. If the employer fails to have worker’s compensation insurance, the employee can sue the uninsured employer for the full amount of their lost wages, not the limited amount available under worker’s compensation insurance. Additionally, the employee can sue the uninsured employer for the full amount of the medical bills without regard to the schedule or limitations that the worker’s compensation regulations provide for. Most important, is the right of the injured employee to seek compensation for items specifically excluded by worker’s compensation such as pain and suffering, mental anguish, shame, humiliation, scarring and loss of the capacity for the enjoyment of life. Additionally, a spouse will also have what is called a consortium or derivative claim against an uninsured employer – something they would not have had worker’s compensation been in place.
If you have been injured on the job and your employer has failed to provide the required worker’s compensation benefits, you do have rights. In fact, your rights may be greater in terms of compensation and damages awards then if you were limited to the worker’s compensation system. Jeffrey R. Davis, P.A. handles cases against uninsured employers who fail to provide their injured workers the required benefits under Florida law. If you have such an injury and your employer is uninsured or fails to provide the required coverage under the worker’s compensation scheme, please call Jeffrey R. Davis, P.A. for a free consultation.