Injuries on the Job Outside of Workers’ Compensation

Injuries on the Job Outside of Workers’ Compensation Injuries on the job in Florida usually involve workers’ compensation. That is, the injured worker usually will be covered by his employer who will carry workers’ comp insurance. If the worker is covered, generally here is what happens. The employer will be in charge of getting the worker all of the medical care the worker needs and to pay the worker some wages. The employer is supposed to provide the medical care right away. In exchange for providing this automatic and quick medical care and wages, the employer has immunity from any lawsuit by the employee, the worker. That is, the worker cannot sue the employer in court and cannot recover pain and suffering damages. If the worker (and his or her workers’ compensation attorney) cannot agree with the attorney for the employer’s insurance company, a court of administrative claims, without a jury, decides the issues.

There are exceptions to the rule, third parties to hold responsible, and seaman who are not subject to state workers’ compensation.

Exceptions to the rule

If an exception to the immunity of the employer applies, the worker can sue the employer in Circuit Court and get a jury. And the remedies can include pain and suffering damages.

One exception is where the employer does not carry insurance for the workers’ compensation. But the issue here is whether the employer has the money to pay a judgment.

Another exception is where the employer fires the employee after the employee is injured and notifies the employer of the injury. That can be evidence of retaliatory discharge, that is, where the employer fires the employee in retaliation for getting into an accident and having or making a workers’ compensation claim. When an employer does that, the employer can be sued by the employee directly under Fla. Stat. Sec. 440.205: Coercion of employees. That section provides “No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.”

Examples of successful injury claims against third parties

Also, there are third parties which the injured worker may be able to sue for on-the-job injuries. On-the-job injuries can be covered by workers’ compensation insurance and protect the employer from suit. But where that injury was caused by a third party, the injured worker can sue the third party. Examples of these third party suits are:

  1. Office worker is in his office and works late. He walks out of his carpeted office and onto a tile floor in a hallway. Unbeknownst to the worker, the cleaning people had come in and mopped the tile floor. The worker slips and falls. In the fall, the worker injures his elbow and shoulder. He gets several surgeries on the elbow and on the shoulder. The worker is left with permanent nerve damage in both places even after surgeries and all of the physical therapy and occupational therapy. The worker had a claim against his employer for the injures which was settled by a lawyer specializing in workers’ compensation. We bring in a lawyer to handle that part of the case. Workers’ compensation is for the most part administrative and straightforward and depends on schedules or preset limits of compensation for injuries. We represent the worker not against the employer (the worker cannot sue the employer but does have a workers’ compensation claim against the employer) but against the cleaning company. Most often, companies will contract with a cleaning company to mop and clean floors in offices.  When those cleaning companies cause accidents and injuries, we bring a claim against them. We did in just this case and recovered over $450,000.
  2. UPS driver is on the job delivering packages. She crosses a street to deliver a package to a building. A car rounds the corner gong way too fast and hits the UPS driver who was walking in a cross walk. The UPS driver is knocked over by the car and the UPS driver hits his head on the pavement. She is knocked unconscious. The UPS driver has a permanent traumatic brain injury. The UPS driver has a workers’ compensation claim against his employer which is obligated to get the employer medical care right away. But the UPS driver also has a claim against the driver of the car. We handled a case like this and recovered over $1.5 Million.
  3. Office worker is at a convention. He is a 56 year old lawyer. He goes to a hotel for the convention and leaves his car with a valet in front of the hotel. When the worker picks up the car, he walks to the trunk of the car to get something out of the trunk. While standing there behind his car in the hotel front driveway, the valet in back of the car is not paying attention and puts his foot on the accelerator of the car and rams into the car in front and the office worker who was standing there. The result was a fracture of the tibial plateau (on top of the lower leg bone at the knee) and a fracture of a piece of the condyle of the upper leg bone where it meets the knee (the distal end). The worker got surgery only to insert one pin into the condyle (head) of the upper leg bone. The treating physician testified that the worker would need a knee replacement in about 12 years. The result was a jury verdict at trial for $2.6 Million.
  4. Factory worker is injured on the job by a defective machine or car. The factory worker has a workers’ compensation claim against his employer for the medical care past and future and for lost compensation past and future. The office worker also may have a claim against the manufacturer and distributor of the defective machine or car. The manufacturers and distributors don’t employ the factory worker. But they caused his injuries. The factory worker can sue the manufacturers and distributors of the defective machine or car.

Seamen, under maritime law, are entitled to maritime remedies, not workers’ compensation

Finally, if the worker is a Jones Act seaman, state workers’ compensation does not apply. That is a good thing for the seaman. Under the maritime law, unlike under state workers’ compensation, the seaman can recover pain and suffering damages. That is governed by maritime law.

There is a multipart test for whether a worker is a Jones Act seaman. In a 2021 case out of the Federal 5th Circuit Court of Appeals, the National Law Journal wrote: “in a unanimous en banc decision in Sanchez v. Smart Fabricators of Texas, L.L.C., No. 19-20506 (5th Cir. May 11, 2021) (en banc), authored by Judge W. Eugene Davis, the US Court of Appeals for the Fifth Circuit affirmed the district court decision holding that a welder assigned to a jack-up rig was not a seaman within the meaning of the Jones Act. In refashioning the seaman status test, the Fifth Circuit held that additional inquiries must be made to determine whether an offshore worker is a Jones Act seaman.[1] Since the US Supreme Court decided Chandris, Inc. v. Latsis in 1995, courts have used a two-part test to determine whether a particular worker is a Jones Act seaman: (1) whether the employee’s duties “contribute to the function of the vessel or to the accomplishment of its mission” and (2) whether the employee has “a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and nature.” 515 U.S. 347 (1995)”.  The article went on to quote from the decision and added:

“The Fifth Circuit devised the following additional inquiries to determine whether a land-based worker who serves a vessel should be considered a Jones Act seaman:

  1. Does the worker owe his allegiance to the vessel, rather than simply to a shoreside employer?
  2. Is the work sea-based or does it involve seagoing activity?
    • Is the worker’s assignment to a vessel limited to performance of a discrete task after which the worker’s connection to the vessel ends, or (b) Does the worker’s assignment include sailing with the vessel from port to port or location to location?”

The Federal 9th Circuit Court of Appeals has adopted a standard jury instruction defining seaman status as follows:

7.1 Seaman Status 

The plaintiff seeks recovery against the defendant under the Jones Act for negligence.  [[He] [She] also seeks recovery under [general maritime law for unseaworthiness] [and] [maintenance and cure].]  Only a “seaman” can bring these claims.  The parties dispute whether or not the plaintiff was employed as a seaman.

The plaintiff must prove that [he] [she] was a “seaman” in order to recover.  To prove seaman status, the plaintiff must prove the following elements by a preponderance of the evidence:

1.     the plaintiff contributed to the mission or operation of [a vessel] [an identifiable group of vessels] in navigation, whether underway or at anchor; and

2.     the plaintiff had an employment-related connection to [the vessel] [an identifiable group of vessels] that was substantial in terms of both duration and nature.

3.     The phrase “vessel in navigation” is not limited to traditional ships or boats but includes every type of watercraft or artificial contrivance used, or practically capable of being used, as a means of transportation on water.

The phrase “substantial in duration” means that the plaintiff’s connection to [the vessel] [an identifiable group of vessels] must be more than merely sporadic, temporary, or incidental.

The phrase “substantial in nature” means that it must regularly expose [him] [her] to the special hazards and disadvantages that are characteristic of a seaman’s work.

Comment

In order to recover for negligence under the Jones Act, under the doctrine of unseaworthiness, or under a claim for maintenance and cure, the plaintiff must be a “seaman” and must satisfy a two-element test.  See Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 554 (1997); Chandris, Inc. v. Latsis, 515 U.S. 347, 355 (1995); Gizoni v. Sw. Marine Inc., 56 F.3d 1138, 1141 (9th Cir. 1995).  The seaman inquiry is a mixed question of law and fact, and when necessary, should be submitted to the jury.  Delange v. Dutra Constr. Co., 183 F.3d 916, 919 (9th Cir. 1999).  The Jones Act does not define the term “seaman,” and the issue of who is or is not covered by the statute has been repeatedly considered by the Supreme Court since 1991.  See Sw. Marine Inc. v. Gizoni, 502 U.S. 81 (1991); McDermott Int’l v. Wilander, 498 U.S. 337 (1991).  See also Stewart v. Dutra Constr. Co., 543 U.S. 481 (2005); Papai, 520 U.S. 548; Chandris, 515 U.S. 347.  In defining the prerequisites for Jones Act coverage, the Supreme Court has found it preferable to focus upon the essence of what it means to be a seaman and to reject detailed tests that tend to become ends in and of themselves.  “The Jones Act remedy is reserved for sea-based maritime employees whose work regularly exposes them to the special hazards and disadvantages to which they who go down to sea in ships are subjected.”  Chandris, 515 U.S. at 369-70.  In Chandris, the Court said the essential test for seaman status “comprises two basic elements: The worker’s duties must contribute to the function of the vessel or to the accomplishment of its mission, and the worker must have a connection to a vessel in navigation (or an identifiable group of vessels) that is substantial in terms of both its duration and its nature.”  Id. at 376.

The Supreme Court has cautioned against using a “snapshot” test and admonishes that a plaintiff’s seaman status must be determined in the context of his or her “overall employment” with the defendant employer.  Id. at 366-67.  In the Court’s view, the total circumstances of an individual’s employment must be weighed to determine whether he or she had a sufficient relation to the navigation of vessels and the perils attendant thereon.  The duration of a worker’s connection to a vessel and the nature of the worker’s activities, taken together, determine whether a maritime employee is a seaman because the ultimate inquiry is whether the worker in question is a member of the vessel’s crew or simply a land-based employee who happens to be working on the vessel at a given time.  Id. at 369-70.  The Court has also identified an appropriate rule of thumb for applying the temporal or durational requirement in the ordinary case: “A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.”  Id. at 371.

A plaintiff may be entitled to an instruction on the fleet seaman doctrine if it has some foundation in the evidence. Gizoni, 56 F.3d at 1141 (“Under the fleet doctrine, one can acquire ‘seaman status’ through permanent assignment to a group of vessels under common ownership or control.”).

The Longshore and Harbor Workers’ Compensation Act (LHWCA) excludes from its coverage “a master or member of a crew of any vessel.”  33 U.S.C. § 902(3)(G).  Masters and crew members are entitled to sue under the Jones Act and the doctrine of unseaworthiness.  A person who is not a seaman is limited to the remedies of the LHWCA.

In conclusion, if you are injured on the job make a claim with your employer right away. But document what caused the injury. That includes taking photos and writing down the names and contact information of all witnesses. And call Hickey Law Firm if you believe one of the exceptions apply, a third party might be at fault, or you are a seaman working on a vessel. Call or contact us today. The consultation is free. We’re based in Miami and serve clients throughout Florida.