Workers throughout Florida should pay attention to a case that could result in workers being allowed to sue their employers for injuries and illnesses suffered on the job instead of being limited to seeking workers’ compensation benefits.

Last August, the Honorable Jorge E. Cueto ruled in Miami-Dade County Circuit Court that the Florida Workers’ Compensation Act’s “exclusive remedy” provision is unconstitutional because it takes away workers’ right to sue their employers without providing an adequate remedy in place of that right.

The Florida Attorney General’s Office appealed the decision. It is now under review by the Third District Court of Appeals. You can actually go to the court’s website to listen to the oral arguments heard by the Court on March 30.

What Is the ‘Exclusive Remedy’ Provision?

The “exclusive remedy” provision can be found at § 440.11 of the Florida Statutes. It has been in effect since 1935.

The provision bars employees or their survivors from bringing a personal injury or wrongful death lawsuit against an employer – except under rare circumstances (when an employer intentionally harms an employee or knowingly engages in conduct that is “virtually certain” to harm the employee).

In exchange for giving up the right to sue, which would require proof of the employer’s fault, the employee may file for workers’ compensation medical and lost-wage benefits, which can be obtained without proving fault.

Court Finds ‘Exclusive Remedy’ Provision Can’t Survive Changes in the Law

However, due to many changes in Florida law since 1935, including changes to the Workers’ Compensation Act, the “exclusive remedy” provision no longer  passes constitutional muster, the Circuit Court ruled in its August 13, 2014 decision.

Three changes in particular are important here:

  • Opt-out provision – When the provision came into law in 1935, it allowed workers to “opt out” of workers’ compensation coverage and pursue a personal injury claim against an employer. However, in 1970, the Florida legislature removed this opt-out clause. Workers’ compensation benefits truly became a worker’s “exclusive remedy.”According to the Circuit Court, the Florida legislature gave no “reasonable alternative” or additional benefit to workers in exchange for eliminating their “opt out” right.
  • Contributory negligence – Florida formerly was a contributory negligence state. So, in order to prevail in a personal injury clam against an employer, a worker had to show that he or she was in no way at fault. The no-fault workers’ compensation system, in this sense, was the best way to protect workers.However, in 1973, Florida adopted comparative fault. This doctrine allows an injured party to recover damages even if they are at fault. Due to the change, injured workers would have faced a better chance of recovering damages in lawsuits against employers. However, despite this change, no amendments were made to the Workers’ Compensation Act to reflect that employees were giving up a more valuable right, the Circuit Court states.
  • Permanent partial disability – The Worker’s Compensation Act formerly gave workers the right to recover lost-wage benefits if they suffered a partial loss of wage-earning capacity.However, in 2003, the legislature eliminated permanent partial disability benefits. As a result, an employee could not receive benefits unless permanently and totally disabled. This is crucial. As the Circuit Court states, permanent partial disability benefits may be the “most significant” benefits available through workers’ compensation.

It is important to note that, in 1935, there were no Social Security Disability (SSD) benefits, Supplemental Security Income (SSI) benefits, Medicare/Medicaid, food stamps or other “safety nets” available for employees.

“The Act may have been a reasonable alternative to tort litigation up to 1968 [when the Florida Constitution was adopted and ratified],” the Circuit Court states in the decision. “The benefits in the Act have been so decimated since then that it no longer provides a reasonable alternative to tort litigation.”

The law firm of Frank M. Eidson, P.A., will be watching this case closely. We will provide an update after the Third District Court of Appeals issues its decision.

In the meantime, we will continue fighting for the workers’ compensation benefits that injured and ill workers in Orlando, Winter Park and throughout Florida deserve. We will also help them to explore all other options for compensation, including personal injury or wrongful death claims against negligent non-employer “third parties.” To learn more, call or contact us online.


Frank M. Eidson P.A. has been tirelessly representing the rights of Central Florida victims since 1989.

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