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CLAIMS FOR RETALIATORY DISCHARGE PURSUANT TO �440.205, FLORIDA STATUTES
by Thomas P. Vecchio
Based on changes in the workers' compensation law, the attorneys who represent injured workers are filing different types of lawsuits based on the employer/employee relationship and the injured worker's industrial accident. The most common type of ancillary claim is a civil lawsuit based on � 440.205, Florida Statutes. This statute states:
Coercion of employees - 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.
This is the entire statute. This very plain and unambiguous statute indicates that no retaliatory employment action may be taken in response to an employee filing a workers' compensation claim.
Although this statute seems to be very clear, questions arise when the employer cannot successfully bring the claimant back to work, for whatever reason. Even if the employer is unable to find suitable work for the claimant based on permanent restrictions, limitations, and the employee's job skills, an attorney representing such an employee may file a lawsuit pursuant to � 440.205. The attorney representing the injured worker may realize that such a claim may be difficult to prove, but file the claim nonetheless in an effort to generate more revenue from what was initially a garden-variety workers' compensation claim.
Claims pursuant to � 440.205 are not heard by the Judges of Compensation Claims. Although they could be filed in county court, the more likely venue is circuit court. The claimant/plaintiff need only allege damages in excess of $15,000.00 in order to invoke circuit court jurisdiction.
An important question regarding coverage arises with filing of a � 440.205 claim. Coverage for such a lawsuit would not fall under ordinary workers' compensation coverage. Workers' Compensation Coverage B would probably not provide the employer with any protection, either. A large employer may have coverage for such a claim under a non-workers' compensation employer's liability policy, but a great number of employers will simply have no coverage for this type of lawsuit. Thus, the employer must defend the claim and pay any settlement or judgment without the assistance of an insurance carrier providing defense or coverage. These are all very important considerations when advising an employer regarding a real or potential � 440.205 claim.
The law firm of Vecchio, Carrier & Feldman has successfully defended � 440.205 claims through jury verdict. We are available to assist and represent our clients in any such actions.
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