chapter 440 - Jeffrey P. Gale, P.A.

Jeffrey P. Gale, P.A. // Chwa Medikal Limite nan Ka Konpansasyon Travayè Florid yo

Jeffrey P. Gale, P.A. — Mon, 05 Jan 2026 20:35:19 GMT

Lwa Florid § 440.13 gouvène dispozisyon swen medikal anba sistèm konpansasyon travayè Florid la. Anjeneral, anplwayè a ak konpayi asirans li a (kolektivman, “E/C”) egzèse yon kontwòl sibstansyèl sou swen medikal yon travayè blese.

Manifestasyon ki pi enpòtan nan kontwòl sa a se dwa legal E/C a pou chwazi doktè otorize pou trete moun ki fè reklamasyon an. An pratik, dinamik sa a souvan lakòz opinyon medikal ki aliyen ak enterè E/C a, souvan nan detriman travayè blese a. Piske doktè sa yo depann sou referans konpayi asirans pou yon gwo pòsyon nan pratik yo, opinyon yo ka—konsyaman oswa otreman—reflete reyalite ekonomik sa a.

Sepandan, nan kèk okazyon limite, doktè ijans lan pèdi kontwòl swen medikal la tanporèman. Senaryo ki pi komen an rive lè moun k ap fè reklamasyon an sibi blesi grav ki mande entène lopital ak operasyon dijans. Nan ka sa yo, chirijyen k ap bay tretman an—sitou yon moun ki gen yon pratik prive—souvan kontinye kòm doktè prensipal la apre moun k ap fè reklamasyon an kite lopital la. Pandan ke doktè sa a pa chwazi pa doktè moun k ap fè reklamasyon an, doktè moun k ap fè reklamasyon an pa chwazi non plis. Malgre sa, kontwòl inisyal doktè ijans lan sou seleksyon doktè a deranje.

Seksyon 440.13(2)(c) nan Lwa Florid yo bay E/C a yon “peryòd tan rezonab” pou bay premye tretman ak swen medikal. Si E/C a pa fè sa, moun k ap fè reklamasyon an “ka jwenn premye tretman sa a sou kont anplwayè a”. Menm lè sa a, sepandan, lwa a pèmèt E/C a reprann kontwòl swen medikal la pita.

Prensip sa a te ilistre nan ka Carmack kont Eta Florid, Depatman Agrikilti, 31 So. 3d 798 (Fla. 1st DCA 2009). La, moun ki te fè reklamasyon an te soufri yon aksidan ki ka resevwa konpansasyon, men Tribinal E/C a te refize otorize tretman sikyatrik ki soti nan blesi fizik nan janm ak nan do moun ki te fè reklamasyon an. Moun ki te fè reklamasyon an te chèche tretman ak yon sikyat poukont li epi li te depoze yon Petisyon pou Benefis pou mande otorizasyon swen nan tan lontan ak nan lavni ak doktè sa a. Jij Reklamasyon Konpansasyon an te bay lòd pou Tribinal E/C a peye pou tretman an jiska dat dènye odyans lan, men li te refize otorize swen kontinyèl ak sikyat moun ki te fè reklamasyon an te chwazi a. Okontrè, yo te pèmèt Tribinal E/C a chwazi yon lòt sikyat. Tribinal Apèl Premye Distri a te konfime sa, sa ki te ranfòse kapasite Tribinal E/C a pou reprann kontwòl sou swen medikal la menm apre yon premye echèk pou otorize tretman.

Seksyon 440.13(2)(f) nan Lwa Florid yo bay sa ki souvan sèl opòtinite enpòtan pou yon moun k ap fè reklamasyon chwazi yon doktè ki pral rete otorize pou lavni. Sepandan, opòtinite sa a rive sèlman lè E/C a komèt yon erè legal. Pati ki enpòtan nan lwa a bay:

Sou demann alekri anplwaye a, konpayi asirans lan dwe bay anplwaye a opòtinite pou chanje doktè yon fwa pandan tretman an pou nenpòt aksidan… Konpayi asirans lan dwe otorize yon lòt doktè ki pa dwe afilye pwofesyonèlman ak ansyen doktè a nan lespas 5 jou apre li fin resevwa demann lan. Si konpayi asirans lan pa bay yon chanjman doktè jan anplwaye a mande a, anplwaye a ka chwazi doktè a epi doktè sa a dwe konsidere kòm otorize si tretman y ap bay la konpanse epi li nesesè medikalman.

Nan ka Zekanovic kont American II, Corp., 208 So. 3d 851 (Fla. 1st DCA 2017), Distri a pa t reponn nan senk jou a demann alekri moun ki te fè reklamasyon an pou yon chanjman doktè yon sèl fwa anba seksyon 440.13(2)(f). Moun ki te fè reklamasyon an te depoze yon Petisyon pou Benefis apre sa pou mande otorizasyon yon doktè espesifik kòm chanjman yon sèl fwa li. Malgre ke JCC a te jwenn ke moun ki te fè reklamasyon an te gen dwa pou chanjman yon sèl fwa a, JCC a te konkli ke paske moun ki te fè reklamasyon an pa t ko jwenn tretman ak doktè li te mande a anvan yo te pase lòd la, Distri a te kenbe dwa pou chwazi doktè ranplasman an. Nan apèl la, Premye Distri a te ranvèse desizyon an, li te deside ke echèk Distri a pou reponn alè te fè li pèdi dwa li pou chwazi doktè a, epi ke moun ki te fè reklamasyon an te gen dwa pou trete ak doktè li te chwazi a.

Nan pratik nou an, nou regilyèman mande chanjman doktè yon sèl fwa. Etandone konsekans enpòtan yon repons ki pa alè—anpalan de pèt kontwòl medikal—E/C a prèske toujou konfòme li nan senk jou legal la epi li kenbe dwa pou chwazi doktè ranplasman an. Ka kote E/C a pa reponn alè yo ra anpil. Sepandan, nan ka sa a, yon echèk konsa te rive. Li enpòtan pou note ke neglijans lan sanble akòz avoka opozan an olye ke ajistè a. Nan enterè pwofesyonalis, nou te ofri pou travay an kolaborasyon ak avoka a pou idantifye yon lòt doktè ki akseptab pou tou de pati yo. Diskisyon sa yo jiskaprezan pa reyisi, paske nou pa vle dakò ak youn nan doktè karyè yo chwazi regilyèman. Antretan, moun ki fè reklamasyon an pwograme pou trete ak doktè li te chwazi a pita nan mwa sa a. Avoka opozan an konprann ke si pa gen yon akò sou yon lòt doktè anvan randevou sa a, E/C a ap oblije otorize tretman ak doktè moun ki fè reklamasyon an chwazi a dapre seksyon 440.13(2)(f).

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Kontakte nou nan 305-758-4900 oubyen pa imèl pou w konnen dwa legal ou yo.

Jeffrey P. Gale, P.A. se yon kabinè avoka ki baze nan Sid Florid ki angaje nan sistèm jidisyè a epi pou reprezante epi jwenn jistis pou moun – pòv yo, moun ki blese yo, moun ki bliye yo, moun ki pa gen vwa yo, moun ki san defans yo ak moun ki kondane yo, epi pou pwoteje dwa moun sa yo kont opresyon kòporasyon ak gouvènman an. Nou pa reprezante gouvènman, kòporasyon oswa gwo enterè biznis yo.

Pandan ke rezolisyon rapid nan pwoblèm legal ou a se objektif nou, apwòch nou an fondamantalman diferan. Kliyan nou yo se “moun” epi yo pa “ka” oswa “dosye”. Nou pran tan pou nou bati yon relasyon ak kliyan nou yo, nou reyalize ke se sèlman atravè yon entèraksyon ki gen sans nou ka pi byen sèvi bezwen yo. Nan fason sa a, nou te kapab pi byen ede moun ki bezwen reprezantasyon legal.

AVÈTISMAN: Enfòmasyon sa a ki bay pa Jeffrey P. Gale, P.A. se pou rezon enfòmasyon sèlman epi li fèt pou itilize kòm yon gid ki pa legal anvan konsiltasyon ak yon avoka ki abitye ak sitiyasyon legal espesifik ou a. Li pa ta dwe konsidere kòm konsèy legal oswa konsèy. Pa gen okenn entansyon pou bay konsèy legal oswa konsèy sa yo, ni eksplisitman ni enplisitman. Enfòmasyon sa a pa ranplase konsèy oswa konsèy yon avoka. Si ou bezwen konsèy legal, ou ta dwe chèche sèvis yon avoka.

Jeffrey P. Gale, P.A. // Election of Remedies in Florida: The Point of No Return

Jeffrey P. Gale, P.A. — Tue, 22 Jul 2025 16:27:16 GMT

Some legal wrongs give the aggrieved party more than one avenue of redress. A common example arises when an injured person must choose between pursuing a remedy under common law or seeking benefits under Florida’s Workers’ Compensation Law, Chapter 440, Florida Statutes. However, once a path is chosen and pursued past a certain threshold, the alternative remedy may no longer be available. This is the doctrine of Election of Remedies.

It is not uncommon for the injured party to first receive workers’ compensation benefits before deciding whether to pursue civil damages. Florida appellate courts have thoroughly analyzed how far one can go down the workers’ compensation path before the election becomes binding. Far less guidance exists, however, on how far one may go in a civil action before being barred from later seeking workers’ compensation benefits.

Yet, the governing legal principle applies to both scenarios:

An election becomes binding “when the rights of the parties have been materially affected to the advantage of one or the disadvantage of the other,” and “[i]t is generally conceded that to be conclusive it must be efficacious to some extent.”
— Williams v. Robineau, 124 Fla. 422, 168 So. 644 (1936); Williams v. Duggan, 153 So. 2d 726 (Fla. 1963)

In practice, determining when an election has matured is often clearer in civil litigation. Civil damages are not awarded until a court determines whether common law is the appropriate remedy. Until that point, the election generally remains open.

The Hume Decision

The case of Hume v. Thomason, 440 So. 2d 441 (Fla. 1st DCA 1983), illustrates the consequences of making a binding election. Hume, a carpenter injured while working on the Thomasons’ home, was entitled to elect between workers’ compensation and a civil lawsuit under § 440.11(1), Florida Statutes, because the employer failed to secure workers’ compensation coverage. Hume chose to sue in civil court, but the court entered final summary judgment against him. He then sought workers’ compensation benefits. The Thomasons objected, arguing that Hume had elected his remedy.

The judge of compensation claims agreed, and the First DCA affirmed:

“The summary judgment rendered in the circuit court was obviously efficacious from the Thomasons’ point of view, as it worked to their advantage and to Hume’s disadvantage. Thus, Hume’s election matured when judgment was entered finally adjudicating the rights of the parties. He was precluded thereafter from pursuing his workers’ compensation claim.”

The court also observed the unfairness of requiring the employer to defend the same injury claim in two different forums:

“[T]he employer should not be twice placed in the position of defending himself where he had had to defend either a damage suit on the one hand or a compensation claim on the other to its final conclusion.”

In short, Hume elected his remedy—and lost. End of story.

The Gilbert Decision

The principle was similarly tested in Gilbert v. Florida Birth-Related Neurological Injury Compensation Association, 724 So. 2d 688 (Fla. 2d DCA 1999). There, the plaintiffs settled a civil medical negligence claim and later filed a petition for benefits under the Florida Birth-Related Neurological Injury Compensation Plan (NICA). An administrative law judge dismissed the petition, citing the doctrine of election of remedies. The Second DCA reversed:

“The remedies are mutually exclusive, but only upon a determination of whether the infant is a NICA baby. That is the core issue of both the civil action and the administrative petition. … The resulting settlement of [the civil] action, although it may imply [the baby was not covered under NICA], fell short of such a determination.”

In other words, an election is not binding unless the underlying factual issue has been definitively resolved.

Application in Workers’ Compensation

In workers’ compensation matters, benefits are often received passively, without the injured worker affirmatively electing them. Such passive receipt—even if substantial—typically does not constitute a binding election.

More commonly, the issue arises when a claimant receives some benefits and then files a civil suit. Despite the general guidance from Duggan, the outer limit of how far one can go in the compensation system before forfeiting a civil remedy remains somewhat unclear.

Still, as shown in Hume and Gilbert, most decisions support the idea that an election is not binding until a factual determination on the core issue has been made. In civil cases, that core issue may be whether the claim is governed by the exclusive remedy provision of Chapter 440. In workers’ compensation cases, it may be whether the injury falls within the Act’s coverage.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation: Creating Compensability of Injuries by Operation of Law (The “120-Day Rule”)

Jeffrey P. Gale, P.A. — Mon, 21 Jul 2025 17:06:58 GMT

Few provisions in Florida’s workers’ compensation law demand more careful attention from carriers than section 440.20(4), Florida Statutes. Commonly referred to as the “120-Day Rule,” this statute outlines the process for determining compensability of an injury and can create compensability by operation of law when not followed properly. The full statutory language is as follows:

“If the carrier is uncertain of its obligation to provide all benefits or compensation, the carrier shall immediately and in good faith commence investigation of the employee’s entitlement to benefits… [and] shall admit or deny compensability within 120 days after the initial provision of compensation or benefits…. A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation … waives the right to do deny compensability, unless the carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period.”

The provision acknowledges the complexity of determining whether an injury is work-related. To that end, it gives the employer/carrier (E/C) a limited window—120 days—to investigate the claim thoroughly. This includes gathering and reviewing medical records, deposing the injured worker and witnesses, and consulting with physicians.

However, the statute has teeth: if the E/C provides benefits for a particular injury without denying compensability within 120 days, it waives the right to later contest whether the injury arose out of and occurred in the course of employment—unless it can establish that key facts could not reasonably have been discovered during the 120-day period. See North River Ins. Co. v. Wuelling, 683 So. 2d 1090, 1092 (Fla. 1st DCA 1996) (en banc).

To determine if compensability has been established by operation of law, courts apply the test outlined in Sierra v. Metropolitan Protective Services, 188 So. 3d 863 (Fla. 1st DCA 2015). The court will consider:

When did the E/C first provide benefits for the disputed condition?
Which specific injuries or conditions were covered?
Did the E/C deny compensability within 120 days of first providing such benefits?

Real-World Example

Our firm is currently handling a case that illustrates the operation of this rule. The claimant underwent an MRI more than two years post-accident, which revealed injuries not previously diagnosed. This MRI was ordered by a newly authorized physician during his first examination. At the follow-up, the doctor concluded that the accident was the major contributing cause (MCC) of the newly discovered injuries and notified the E/C in writing.

Since then, with the E/C’s full knowledge and authorization, the doctor has continued to treat these injuries for over 18 months—ordering physical therapy, prescribing medication, and issuing medical equipment. Under the governing case law, the E/C had 120 days from the date it received the doctor’s opinion and paid for the condition, not from the date of the accident, to deny compensability. Failing to do so may have resulted in the injury being deemed compensable by operation of law.

Conclusion

The “120-Day Rule” strikes a fair balance. It gives employers and carriers a reasonable opportunity to investigate a claim without penalizing injured workers through endless delays. It also encourages medical providers to offer timely, clear opinions on causation. Most importantly, it prevents E/Cs from passively accepting and treating injuries only to later disavow responsibility.

Proper application of the 120-Day Rule is critical—both as a shield for employers/carriers and a safeguard for injured workers. As always, knowing when the clock starts—and what restarts it—makes all the difference.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation — Compensability of Accidents During Lunch Break

Jeffrey P. Gale, P.A. — Thu, 27 Jul 2023 17:39:59 GMT

Our client, a construction site supervisor, was injured off-premises at the end of his lunch break. The beginning and end of lunch were signaled by a loud horn. He and his brother traveled by car to a nearby 7-11 to purchase lunch items. They returned to the area near the worksite to eat lunch in the parked car. When the return-to-work horn sounded, our client went to the trunk of his car to retrieve his hard hat and safety harness. As he was standing there, the car behind him was struck from behind by another vehicle and pushed into him, causing him to be crushed between that vehicle and his own. He sustained significant injuries requiring a one-week stay in Ryder Trauma Center in Miami.

Initially, the workers’ compensation insurance carrier balked at accepting compensability of the injury. Its position was that since the accident happened offsite during a lunch break, it did not arise out of and in the course and scope of our client’s employment. After studying the case law and gathering more facts, the carrier reversed course.

For an injury to be compensable under Florida’s workers’ compensation system, it must arise out of and in the course and scope of one’s employment. The indicia for making this determination was articulated by the Florida Supreme Court in Fidelity & Casualty Co. of New York v. Moore, 143 Fla. 103, 196 So. 495, 496 (1940):

“[1] there must be some causal connection between the injury and the employment or [2] it must have had its origin in some risk incidental to or connected with the employment or that [3] it flowed from it as a natural consequence. Another definition widely approved is that [4] the injury must occur within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental to it.”

In Johns v. State of Florida, Dept. of Health, 485 So. 2d 857 (Fla. 1st DCA 1986), the claimant was assaulted in the lobby of her place of employment 20 to 30 minutes prior to the beginning of her shift. She sued her employer for negligence, positing that she was not within the course and scope of her employment when the assault occurred. On a motion for summary judgment, the trial court disagreed. The order of the trial court was affirmed on appeal.

In support of its opinion, the First DCA noted that appellant customarily arrived 20-30 minutes early to avoid being late, that the lobby was normally used by employees, and she had no personal reason for being there. The court distinguished these circumstances from those in Aloff v. Neff-Harmon, Inc., 463 So.2d 291 (Fla. 1st DCA 1984), a case in which the appeals court reversed a summary judgment for the employer where the employee stayed several hours after the closing of a bar where she was a waitress to discuss primarily personal matters with her employer.

In my estimation, our case more closely approximates the Johns case and qualifies under most if not all of the criteria articulated in the Moore case. Apparently, the carrier feels the same way.

These cases are especially fact sensitive and there is plenty of case law on the subject.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Jeffrey P. Gale, P.A. // Employer/Carrier’s Responsibility to Pay for Unrelated Medical Care

Jeffrey P. Gale, P.A. — Thu, 29 Jun 2023 17:49:56 GMT

Following compensable work-related accidents, employers and their insurance carriers (commonly collectively referred to as “E/C”), are supposed to furnish injured workers with the medical care prescribed in Florida Statute section 440.13.(2)(a). The key language of the statute reads as follows:

Subject to the limitations specified elsewhere in this chapter, the employer shall furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require….

Interestingly, this provision has been interpreted to include medical treatment for unrelated conditions if such treatment will aid or improve recovery of the work injury. The principle has been recognized since 1966.

In Jordan v. Fla. Industrial Commission, 183 So. 2d 529 (Fla. 1966), the Florida Supreme Court reversed the rulings of two lower tribunals which denied treatment of a pre-existing deformity, and compensation for healing time during and following same. The injured worker in the case had sustained a leg injury in a prior accident which healed at an abnormal angle shortening his leg by two and one-fourth inches, giving him a limp, curvature of the spine and abnormal stress on the leg muscles, tendons, etc. Four years later he suffered a job-connected accident resulting in a back injury. Medical testimony demonstrated that were it not for the abnormal stress on his back caused by the earlier deformity, claimant’s back would have healed from the compensable injury in four to eight weeks, and that the only effective treatment for the compensable back injury was to correct the leg length discrepancy. The Judge of Compensation Claims declined to require that the employer provide treatment or appliances to correct the deformity. The Full Industrial Commission affirmed the JCC. (It should be noted that the Industrial Commission no longer exists to review workers’ compensation trial judge rulings. That responsibility now lies with the First District Court of Appeal.) The Supreme Court reversed both tribunals and ordered E/C to furnish the medical treatment.

Other examples include: Treatment for diabetes. Urban v. Morris Drywall Services, 595 So. 2d 60 (Fla. 1st DCA 1991). Claimant proposed that his diabetes was caused by the industrial accident. The JCC rejected the causation claim and request for treatment of the diabetes necessary to the effective treatment of his compensable injuries. The First DCA agreed with the judge’s ruling denying compensability of the diabetes. However, it said this about the request for treating the diabetes:

In the present case, there is record evidence to suggest the necessity of treating claimant’s diabetic condition in order to render effective treatment of claimant’s compensable injuries. If such is the case, we hold that claimant is entitled to that treatment of his diabetic condition necessary for effective treatment of his compensable injuries. It will, however, be necessary for the JCC to make specific findings as to whether such diabetes treatment was indeed a necessary adjunct to the treatment of claimant’s compensable injuries. If such is the case, claimant is entitled to compensation for his diabetes treatment not only for the limited period in which his diabetic condition was exacerbated, but for the period in which stabilization of the diabetes was necessary to assist claimant in attaining maximum recovery from his compensable injuries.

Cancer treatment. City of Miami v. Korostishevski, 627 So. 2d 1242 (Fla. 1st DCA 1993). Claimant, who for 13 years worked around tennis court clay and herbicides, asserted that his job duties caused a hernia and liver cancer. The JCC entered an order finding that both conditions were related to his employment. The JCC found alternatively that, if the cancer was not compensable, the E/C was nevertheless responsible for treating it on the theory that treatment for a condition not causally related to employment is the E/C’s responsibility if one of the primary purposes of that treatment is to remove a hindrance to recovery from the compensable hernia, citing Urban v. Morris Drywall Services, 595 So. 2d 60 (Fla. 1st DCA 1991). The First DCA agreed with the finding of compensability of the hernia, rejected compensability of the cancer, but agreed with the JCC’s alternative theory regarding the necessity of treatment.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. // Loss of Co-Worker WC Immunity Not Imputed to Employer

Jeffrey P. Gale, P.A. — Thu, 29 Dec 2022 21:22:25 GMT

Florida employees hurt at work have the potential of being compensated under the State’s workers’ compensation and civil laws. To recover under civil law against employers and fellow employees (including corporate officers or directors, supervisors, and managers), employees must overcome workers’ compensation immunity. Section 440.11(1)(b), Florida Statutes sets out what employees must prove to overcome the immunity*:

Against Employers:

The employer deliberately intended to injure the employee; or
The employer engaged in conduct that was virtually certain to result in injury or death, and the employee was not aware of the risk.

Against Fellow Employees:

The employee acted with willful and wanton disregard or unprovoked physical aggression or with gross negligence; or
The injured employee and the at-fault employee were assigned primarily to unrelated works.

*These are the standards when the employer has secured workers’ compensation coverage as required by Chapter 440. If the employer fails to secure the compensation required by the chapter, the employee may elect to claim compensation under the workers’ compensation laws or maintain an action at law (a/k/a civil law) or admiralty without having to meet the heightened standards outlined above. See Section 440.11(1)(a), Florida Statutes.

An important consideration in every injury case is whether the target defendant has the financial resources to pay for the losses. Workers’ compensation insurance policies will pay for all workers’ compensation benefits. However, because of exclusions, these policies are unlikely to cover the damages associated with an action at law. Most companies also maintain liability insurance policies. However, these policies also often contain exclusions for injuries to employees even when the harm was caused by the employer or a fellow employee.

Some employers have the personal financial wherewithal to meet the obligations associated with significant civil damages. Most individuals do not. Interestingly, the legal principle respondeat superior, which is Latin for “that the master must answer,” does not apply in the realm of workers’ compensation immunity so as to make the employer financially responsible for civil damages caused by a co-employee. See Taylor v. Sch. Bd. of Brevard Cnty., 888 So. 2d 1, 7 (Fla. 2004) (Lewis, J., concurring in result) (noting that the “unrelated works exception to the rule of general immunity applies only in the co-employees context, and application of the provision does not result in the loss of general immunity by an employer”) and Vallejos v Lan Cargo, SA, 116 So.3d 545 (Fla. 3rd DCA 2013). (The statute does not mention any imputation of liability onto the employer and specifically states that immunity includes vicarious liability).

Injured workers have the right to receive workers’ compensation benefits from the employer and maintain an action at law at the same time against fellow employees. Because the remedies are against different entities, pursuing both will not be considered an election of remedy to bar one or the other.

Nevertheless, thoughtful consideration should be given to pursuing a civil remedy against a fellow employee when the financial resources may not be available to pay the damages. The practice of law is a business. Good decisions must be made with regard to the investment of time and resources.

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Contact us at 305-758-4900 or by email to learn your legal rights.