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Third Party Personal Injury Claims:
When Workers' Compensation is Not the Only Answer to a Workplace Injury
By: Donald C. Greiwe
When an employee is injured or killed on the job, the employee’s recovery is governed by Florida’s Workers’
Compensation Law, often to the exclusion of any typical personal injury or wrongful death claim.
Employees and their employers should understand, however, that if the negligence or intentional act of
a third-party has caused the employee’s injury or death, a personal injury claim can offset the workers’
compensation benefits paid by the employer and could result in greater remedies for the injured employee.
Chapter 440, Florida Statutes, the Florida Workers’ Compensation Law, provides an “exclusive remedy” for employees injured on the job.i
This means that, generally, an employee injured or killed while acting in the scope of his or her employment cannot bring
a personal injury or wrongful death action in order to be compensated for his or her injuries, medical expenses and lost wages.
In most cases, an injured employee’s (or his or her representative’s) only avenue for collecting damages can be
found via payments made by the employer or its workers' compensation insurance carrier pursuant to the workers' compensation law ii
This “exclusive remedy” provision, however, is not an absolute bar to personal injury remedies;
in certain circumstances, an employee injured on the job may pursue a civil negligence action while
concurrently claiming workers’ compensation benefits. In addition to two statutory exceptions provided
by Section 440.11, Florida Statutes,iii Section 440.39 provides that an injured employee has a right to
bring a personal injury action against a third-party when the third-party’s negligence or intentional
act caused the employee’s work-related injury, whether or not the employee has applied for or received workers'
compensation benefits from her employer.iv
Section 440.39 ensures that an employee cannot “double dip,” that is, receive compensation both from a workers'
compensation claim as well as a personal injury claim, by providing that, to the extent of the amount of
compensation benefits paid or to be paid by the employer or insurance carrier, the employer or insurance
carrier shall be subrogated to the rights of the employee.v Furthermore, upon filing a notice of payment
of compensation and medical benefits, the employer or insurance carrier has an effective lien on any settlement
or judgment proceeds.vi In other words, the employer or insurance carrier is entitled to get paid back the amount
it provided the injured employee as part of workers’ compensation benefits from any settlement or judgment
received from the personal injury suit, as well as reduce any future workers’ compensation benefits paid to
the employee, in order to offset amounts received by the employee via workers’ compensation benefits.vii
An employer or insurance carrier’s share of the personal injury proceeds will be reduced by reasonable attorney’s
fees and costs. In addition, in the event that the third-party settles with the employee, the insurance
carrier’s recovery will also be reduced – but only if the employee proves that he or she has not received
the full value of claim in the settlement. viii
When employees are injured by the negligence or wrongful acts of third-parties, workers’ compensation
benefits are not the only road to recovery. If you have any questions regarding a workplace injury
in which a party other than the employer is at fault, please contact Don Greiwe in our office at dgreiwe@dgfirm.com.
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iMorales v. Zenith Inc. Co., 152 So. 3d 557, 562 (Fla. 2014).
iiId.
iii§§ 440.11(1)(a) and (b), Fla. Stat.
iv§ 440.39, Fla. Stat.
v§ 440.39(2), Fla. Stat.
vi§ 440.39(3)(a), Fla. Stat.
viiSee Hartford Inc. Co. v. Goff, 4 So. 3d 770, 772-773
viiSee Orlando Regional Healthcare System v. Tiznado, 804 So. 2d 1267, 1270 (Fla. 5th DCA 2002)
(this pro rata share of recovery is calculated by dividing the total settlement net attorneys’
fees and costs by the amount of damages the employee has actually suffered).
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