Many workers wonder whether or not workers’ compensation insurance is the only method of recovering compensation for job injuries available to them. In a word, no. The Florida workers’ compensation system is designed to be a reasonable alternative to a tort-based (negligence action-based) system. For the most part, this vision is a reality. It’s true that injured workers are not entitled to pain and suffering or other noneconomic damages. But it’s also true that they need not prove fault to obtain compensation for economic losses. So, all other things being equal, the tradeoff is relatively even.
But all other things are not always equal. In some cases, workers’ compensation cannot adequately compensate injured victims because they give up too many rights. Florida law recognizes this reality. So, workers who suffered job injuries may forego their workers’ compensation claims and pursue tort cases in the following three areas.
Job Injuries and Defective Products in Tampa
Despite the presence of strict federal and other regulations, many manufacturers place profits before people. That’s especially true in extremely competitive industries, such as the construction industry. A few cents in materials savings, or a fewer hours during the design process, can mean millions of dollars. For many, the temptation is too great to avoid.
As a result, many Tampa workers are at risk due to defective products. Some common defects that Florida attorneys handle include:
- Design Defect: One problem with the infamous Ford Pinto, which was prone to explosions after low-speed collisions, was that designers placed the gas tank outside the rear axle. In that respect, the Ford Pinto was a dangerous product before it even got off the drawing board.
- Manufacturing Defect: The Takata Company recently had to recall millions of defective airbags and pay a huge fine. The airbags did not have a cheap drying agent which kept the chemical propellant intact. As a result, the airbags were prone to explosion. Several people died, and many more were seriously injured.
Typically, attorneys partner with engineers and other professionals to determine the nature of the product defect.
Determining the type of defect is only step one. Next, an attorney must find the proper legal theory. It must be supported by the evidence and resonate with the Tampa jury. Breach of implied warranty is the most common theory in defective product cases. Its requirements are:
- Fair average quality goods,
- Product is fit for its ordinary purpose,
- The buyer does not object to the goods,
- Product is adequately packaged, and
- Goods conform to any promises or affirmations.
In a defective products lawsuit, a Tampa victim/plaintiff must prove every element of the claim by a preponderance of the evidence (more likely than not).
Employer-Related Claim Denial in Tampa
When Florida workers file job injury claims, they submit paperwork to their employers. Then, the employer has a chance to review the claim before forwarding it to the insurance company. Strict time deadlines apply in both instances. Workers must report claims to their supervisors within 30 days. The employer-to-carrier deadline varies, but it is usually about the same.
If the employer drags its feet to the extent that the second deadline expires, the injured worker may have the right to file a claim in civil court.
The same principle applies in both defective product cases and employer negligence situations. Manufacturers of dangerous products cannot avoid liability just because the victim was a worker. Similarly, employers cannot avoid liability by being passive-aggressive when it comes to claims.
Employer fraud sometimes comes into play here as well. Many Florida employers promise injured workers money under the table if they do not file workers’ compensation claims. Employers do not do this to be generous. They do not want to pay the higher insurance premiums that come with a claim on their record.
Typically, the employer reneges on this promise. By that time, the aforementioned 30-day window has closed. Victims in these situations still need compensation for their job injuries. So, they may be able to look to courts to get it.
Intentional or Reckless Injury in Tampa
This third area is probably the most widely-used exception to the exclusive remedy provision. There are two alternatives. In each one, the victim must present clear and convincing evidence of the employer’s misconduct. “Clear and convincing” evidence is an intermediate standard between preponderance of the evidence (more likely than not) and beyond a reasonable doubt.
The exclusive remedy provision is inapplicable in Tampa if the employer intentionally injured the worker. For example, a boss might order a union agitator to do an exceptionally hazardous job and not make proper safety precautions. Although that evidence is circumstantial, it is arguably clear and convincing proof of intentional injury.
The other avenue involves reckless conduct. Essentially, the employer simply does not care whether or not a worker gets hurt. Employees must prove all four of the following elements:
- Prior Warnings: The employer must have notice of a dangerous condition. For example, a city inspector might issue a citation about a potentially dangerous elevator or lift. Additionally, the danger must be of a nature that’s almost certain to injure someone.
- Latent Risk: The employee must not be aware of the danger because it is hidden from view. A defective elevator certainly qualifies as such.
- Deliberate Concealment: The employer must cover up the danger so as to not alert workers. To continue with the elevator example, an employer must do something like cover the loose cables with duct tape.
- Causation: There must be a direct and foreseeable relationship between the danger and the injury.
Typically, a worker may file these claims for job injuries in a Florida district court. These claims go through the normal negligence suit process.
Count On Tenacious Workers Comp Attorneys
Injured workers may have options outside the workers’ compensation system. For a free consultation with an experienced workers’ comp lawyer in Tampa, contact Burnetti, P.A. Home and hospital visits are available.