Worker's Compensation

IV. ANSWERS TO OFTEN ASKED QUESTIONS

1. Is my employer required to have workers' compensation insurance?
Every employer in the State of Florida who employs four or more employees, part-time or full-time, is required to comply with the provision of the Workers' Compensation law. The definition of an "employee" is any person engaged in employment under an appointment or contract of hire, express or implied, oral or written. This includes minors and aliens, whether lawfully or unlawfully employed. However, it does not include independent contractors.
If an employer fails to have compensation insurance as required by the Workers' Compensation Law, a penalty not to exceed $5,000.00 for each employee of that employer may be assessed against the employer.

2. In what situations am I entitled to receive workers' compensation benefits?
The Workers' Compensation Law is designed to have the employer pay compensation and/or furnish benefits if the employee suffers "an accidental injury or death arising out of work performed in the course and the scope of employment." This would include diseases or infection which naturally or unavoidably result from the injury. However, it is important to understand what is an "accidental injury" and how "arising out of" is interpreted under the Workers' Compensation Law.

In order to be compensable, the injury to the employee must be "accidental." Accident is defined as "only an unexpected or unusual event or result that happens suddenly." A mental or nervous injury due to stress, fright or excitement only, with no physical injury, is not an accident. There are some injuries that although they do not occur suddenly are still compensable under the Law. These include, but are not limited to, exposure and repeated trauma cases and occupational disease cases.

Once an accident is established, the injured employee must prove that the injury arose out of his or her employment. The injured employee must establish that the work performed in the course and scope of employment is the major contributing cause of the injury or death. If the injury was a result of a pre-existing condition, there may be no recovery. The employer/carrier has the burden of proving the existence of such a pre-existing condition.

3. Can my work related injury be denied by the insurance carrier?
The Workers' Compensation Law clearly states that compensation is not payable if the injury was caused primarily by the intoxication of the employee or by the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician. Under the law, the employer may require the employee to submit to a test for the presence of any or all drugs or alcohol in his or her system. If the injured worker refuses to submit to a drug test, it shall be presumed in the absence of clear and convincing evidence to the contrary that the injury was caused primarily by the influence of drugs or alcohol.

Compensation is also not available if injury results from the willful intention of the employee to injure or kill himself, herself, or another.

Workers' Compensation benefits can be reduced by 25% if the employee fails or refuses to use safety appliances provided by the employer.
Recreational and social activities are not compensable unless such recreational or social activities are an expressly required incident of employment and produce a substantial direct benefit to the employer beyond improvement in employee health and morale that is common to all kinds of recreation and social life.
An injury suffered while going to or coming from work is not an injury arising out of and in the course of employment whether or not the employer provided transportation if such means of transportation was available for the exclusive personal use by the employee, unless the employee was engaged in a special errand or mission for the employer.

An employee who is injured while deviating from the course of his employment (horseplay), including leaving the employer's premises, is not eligible for benefits unless such deviation is expressly approved by the employer.

In case an employee becomes an inmate of a public institution, then no compensation shall be payable unless he has dependents.

4. Can I sue my employer for my work related injury?
If the employer provides workers' compensation benefits to the injured employee, the employer is only responsible for those benefits set forth in the Workers' Compensation Law. These would include limited compensation for disability and medically necessary medical expenses.
An injured employee may not sue his employer if the injured worker has received workers' compensation benefits. In Florida, Workers' Compensation is an exclusive remedy and questions as to negligence and fault is irrelevant. An employer may not be entitled to this immunity if the injury was caused by gross negligence.

5. What are my responsibilities when I am injured on the job?
You should report the accident immediately to your supervisor in order that there is no delay in receiving the benefits you are entitled to under the Workers' Compensation Law. Your employer has the duty to complete a First Report of Injury or Illness and file it with the Division of Workers' Compensation. You should request to be provided with a copy of this document.

Additionally, you should also request to be provided with authorized medical treatment through your employer or it's workers' compensation carrier.

6. What if my employer refuses to provide me with a authorized physician or complete a First Report of Injury or Illness?
Contact the Division of Workers' Compensation at 1-800-342-7141 and advise them of your employer's failure to comply.
Should no action occur, contact an attorney who specializes in Workers' Compensation law.