Employees Terminated for Reporting Workplace Injuries

Retaliation In The Workplace

By Scott C. Adams | Employment Law Attorney
Published: April 6, 2016

Over the last few years, the Employment Lawyers at LaBar & Adams, P.A. have received numerous calls from individuals that have been terminated for reporting a workplace injury. Typically, the employer’s basis for termination is the employee’s violation of a company policy that requires workplace injuries to be “immediately reported.” The Orlando Employment Lawyers at LaBar & Adams, P.A. believe that such practices may run afoul of anti-retaliation law under Florida Workers’ Compensation Law.

Florida’s Workers’ Compensation Act creates a self-executing, non-adversarial system. It is designed to function without the intervention of legal representatives in the vast majority of cases by placing on the employer and insurance carrier the burden to assure the quick and efficient delivery of disability and medical benefits to an injured worker at a reasonable coast to the employer. This self-executing, efficient and non-adversarial system commences with an Employee reporting to an Employer an injury arising out of his or her employment. The Florida Legislature has provided that the pursuit of a workers’ compensation claim in Florida commences with “[a]n employee who suffers an injury arising out of … employment … advis[ing] his or her employer of the injury within 30 days….” Fla. Stat. § 440.185(1). Once such a claim is received, the Employer must report the injury to its insurer/claim administrator within seven (7) days. The Employer is to use Form DFS-F2-DWC-1 to report the claim. See Fla. Admin. Code 69L-3.004(2)(a). When the employer submits to its claim administrator Form DFS-F2-DWC-1, the employer must provide a copy of the form to the employee or the employee’s estate. Fla. Admin. Code 69L-3.004(2)(c).

Once the claim administrator receives Form DFS-F2-DWC-1, it must legibly date stamp the form in the “Received by Claims-Handling Entity” box. Fla. Admin. Code 69L-3.0045(1)(a). The claim administrator must also confirm that the information it has been provided on Form DFS-F2-DWC-1 is correct. Fla. Admin. Code 69L-3.0045(1)(c)1-8. The claim administrator must then complete the “Claims-Handling Entity Information section of Form DFS-F2-DWC-1.” Fla. Admin. Code 69L-3.0045(1)(d).

Once the claim administrator receives the claim, it obtains a fraud statement from the “injured employee … making the claim.” Fla. Admin. Code 69L-3.0047(1). It also typically provides information in reference to resolving worker’s compensation issues by way of the EAO. Fla. Admin. Code 69L-26.004(1). This is often contained in the brochure published by the Division of Worker’s Compensation that claim administrators often provide.

To protect employees that engage in the forgoing described self-executing, efficient and non-adversarial Workers’ Compensation system, the Florida Legislature created section 440.205, Florida Statues. This statute reflects Florida public policy that an employee shall not be discharged for filing or threatening to file a workers’ compensation claim. Section 440.205, Florida Statues is intended to insure that employees do not have to fear reprisal from their employers when they invoke this self-executing, efficient and non-adversarial system.

So what about the employer that says, “we fired the employee for violating our company policy regarding immediately reporting the workplace injury, not because the employee made a claim for worker’s compensation benefits.” Such a legitimate business reasons should be met with extreme skepticism and here is why.

First, there can be no violation of the company policy without the employee reporting the workplace injury. Florida Workers’ Compensation law mandates that an employee “shall” report the injury to his or her employer. As such, the employee is being terminated for what he or she must do under Florida Law in order to obtain workers’ compensation benefits.  Stated another way, the employees’ reporting of the workplace injury is the “but for” cause of the ultimate termination. Simply stated- no reporting of workplace injury as required by Florida Law; no violation of the company policy.

Second, workplace rules that require immediate reporting of workplace injuries hinder Florida’s workforce.  If an employee does not feel free to report injuries or illnesses, an employer's entire workforce is put at risk. Employers do not learn of and correct dangerous conditions that have resulted in injuries, and injured employees may not receive the proper medical attention, or the workers' compensation benefits to which they are entitled. This is obviously contrary to section 440.205, Florida Statues which is intended to insure that employees do not have fear of reprisal for invoking the workers’ compensation system. Ensuring that employees can report injuries or illnesses without fear of retaliation is crucial to protecting worker safety and health.

Finally, employer’s motives behind such workplace rules are not the safety of employees or consumers, but rather lining their pockets. There are many reports from leading insurance journals that conclude that delays in reporting workplace injuries increases the costs of the claim. For example, one study provided that a two week delay in reporting a workplace injury increased the workers’ compensation claim by eighteen percent (18%). A three to four week delay in reporting a workplace injury increased these workers’ compensation claim by thirty percent (30%). Delays greater than four weeks in reporting the workplace injury increased the employee’s workers’ compensation claim by forty five percent (45%). Simply stated, the longer the reporting delay the more that will be paid.

Employees in Florida should report workplace injuries free from fear of retaliation. The law of Florida provides the necessary protection. Employer policies that deter such reporting should be found unconscionable as a matter of law.

If you have been a victim of retaliation for reporting a workplace injury, please contact an employment attorneys at LaBar Adams in Orlando, FL at www.labaradams.com, 1-866-680-4LAW, or 407-835-8968.

 

 

Scott Adams - Employment Lawyer

 

 

 

 

 

Scott C. Adams
Employment Law Attorney

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