Workers Compensation Claims in Florida


Many people are confused by whether they have a worker’s compensation case or a typical personal injury/negligence claim. However, most clients are unaware that sometimes you can actually have both.

Under Florida Statute 440.39, entitled “Compensation for injuries when third persons are liable”

If an employee, subject to the provisions of the Workers’ Compensation Law, is injured or killed in the course of his or her employment by the negligence or wrongful act of a third-party tortfeasor, such injured employee or, in the case of his or her death, the employee’s dependents may accept compensation benefits under the provisions of this law, and at the same time such injured employee or his or her dependents or personal representatives may pursue his or her remedy by action at law or otherwise against such third-party tortfeasor.

OK, now that we understand that you can actually maintain both a worker’s compensation claim and a third-party negligence claim against the wrongdoer, you need to understand that you will likely have to pay the employer or its worker’s compensation insurance carrier back for essentially a lien against the third party case.

That statute goes on to explain that if the employee or his or her dependents accept compensation or other benefits under this law or begin proceedings, the employer or, in the event the employer is insured against liability here-under, the insurer shall be subrogated to the rights of the employee or his or her dependents against such third-party tortfeasor, to the extent of the amount of compensation benefits paid or to be paid. If the injured employee or his or her dependents recovers from a third-party tortfeasor by judgment or settlement, either before or after the filing of suit, before the employee has accepted compensation or other benefits under this chapter or before the employee has filed a written claim for compensation benefits, the amount recovered from the tortfeasor shall be set off against any compensation benefits other than for remedial care, treatment and attendance as well as rehabilitative services payable under Florida worker’s compensation law.

Does the injured party get a break?

Well, the amount of such offset shall be reduced by the amount of all court costs expended in the prosecution of the third-party suit or claim, including reasonable attorney fees for the plaintiff’s attorney. However, in no event shall the set-off provided in the Statute in lieu of payment of compensation benefits diminish the period for filing a claim for benefits as provided in Florida Statute 440.19.

The law further provides a formula of sorts to find what would be equitable as a payback to the employer or its worker’s compensation insurance carrier.

In determining the employer’s or carrier’s pro rata share of those costs and attorney’s fees, the employer or carrier shall have deducted from its recovery a percentage amount equal to the percentage of the judgment or settlement which is for costs and attorney’s fees. Subject to this deduction, the employer or carrier shall recover from the judgment or settlement, after costs and attorney’s fees incurred by the employee or dependent in that suit have been deducted, 100 percent of what it has paid and future benefits to be paid, except, if the employee or dependent can demonstrate to the court that he or she did not recover the full value of damages sustained, the employer or carrier shall recover from the judgment or settlement, after costs and attorney’s fees incurred by the employee or dependent in that suit have been deducted, a percentage of what it has paid and future benefits to be paid equal to the percentage that the employee’s net recovery is of the full value of the employee’s damages; provided, the failure by the employer or carrier to comply with the duty to cooperate imposed by the law may be taken into account by the trial court in determining the amount of the employer’s or carrier’s recovery, and such recovery may be reduced, as the court deems equitable and appropriate under the circumstances, including as a mitigating factor whether a claim or potential claim against a third party is likely to impose liability upon the party whose cooperation is sought, if it finds such a failure has occurred. The burden of proof will be upon the employee.

Additionally, Florida Statute 627.727 entitled “Motor vehicle insurance; uninsured and underinsured vehicle coverage; insolvent insurer protection” even delves into the relationship between workers compensation benefits and uninsured/underinsured motorist insurance coverage. The uninsured and underinsured coverage described under this section shall be over and above, but shall not duplicate, the benefits available to an insured under any workers’ compensation law, personal injury protection benefits, disability benefits law, or similar law; under any automobile medical expense coverage; under any motor vehicle liability insurance coverage; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident; and such coverage shall cover the difference, if any, between the sum of such benefits and the damages sustained, up to the maximum amount of such coverage provided under this section. The amount of coverage available under this section shall not be reduced by a setoff against any coverage, including liability insurance. Such coverage shall not inure directly or indirectly to the benefit of any workers’ compensation or disability benefits carrier or any person or organization qualifying as a self-insurer under any workers’ compensation or disability benefits law or similar law.

So can a UM coverage obligation be off set or reduced?

The answer is yes. Generally, UM coverage will be reduced by

  1. the bodily injury limits of the uninsured toreador’s auto liability policy;
  2. benefits available to the insured under any workers’ compensation law;
  3. personal injury protection benefits; and
  4. disability or similar benefits or similar law.

Do you have to repay a worker’s compensation lien from uninsured or underinsured motorist proceeds?

Per the case of Volk V. Gallopo, 585 So. 2d 1163.(Fla. 1st DCA 1991), a workers’ compensation lien is only payable from the liability proceeds, not the uninsured motorist proceeds. You can refer to Florida Statutes, Sections 440.39 (3)(a) and 627.727(1). The only exception is where the UM paid its money to replace the liability proceeds so it can subrogate against the tortfeasor. Please reference Metrix South v. Rose, 758 So. 2d 1259 (Fla. 1st DCA 2000).

While there is more to it, the general idea is that yes, you can maintain two separate actions—one for a worker’s compensation claim and another for a personal injury claim so long as you are in compliance with Florida Law and for that, it is always best to discuss the particulars of an individual case with a Florida attorney.

At Sokoloff & Weinstein, P.A., Attorneys at Law, we’re here to help those who’ve been injured…

Contact us today for more information.