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Can an employee collect workers’ comp and then sue us for more?

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in Employee Benefits Program,Human Resources

Q. One of our employees suffered a job-related injury. Now she’s trying to sue us in court for damages following mediation in which she settled her workers’ compensation petition by accepting permanent total disability (PTD) benefits. Can she do that?

A. Florida appellate courts continue to apply the “exclusive-remedy” doctrine contained within the Florida Workers’ Compensation Law. An injured worker isn’t allowed to elect the remedy to sue the employer for damages unless one of the statutory exceptions to the exclusive-remedy doctrine can be specifically established.

When a workers’ compensation claim is pursued to a conclusion, then it is determined that there has been an “election of remedies.” Thus the employee will not be able to pursue a lawsuit against the employer.

It is not “an election of remedies” for the injured worker to simply accept compensation benefits. Even the filing of a petition is not sufficient to find an election of remedies if the petition is not pursued to a conclusion.

Nevertheless, the courts have ruled that when an employee files a petition for PTD benefits, reaches an agreement at mediation for the employer or carrier to pay PTD benefits and the benefits are actually paid, an injured worker is deemed to have elected the workers’ compensation remedy. That’s because the employee “actively pursued the receipt of workers’ compensation benefits to a conclusion on the merits, which established that she was permanently and totally disabled and that she was entitled to receive benefits that flowed therefrom.”

In your case, the mediation settlement agreement concluded your employee’s case, so the lawsuit cannot proceed. 

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