CENTRAL FLORIDA WORKERS’ COMPENSATION RETALIATION LAWYERS IN OCALA, FLORIDA

In order to provide protection from retaliation to vulnerable employees who suffer an injury at work and make or attempt to make a workers’ compensation claim, the Florida Legislature enacted section 440.205, Florida Statutes. Section 440.205 provides that “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 Florida Workers’ Compensation Law.” Under section 440.205 therefore, employees who suffer an injury at work and make or attempt to make a workers’ compensation claim are protected from retaliation. As explained by the Florida First District Court of Appeal in Bruner v. GC-GW, Inc., 880 So.2d 1244 (Fla. 1st DCA 2004), “section 440.205 is not only intended to punish employers who discharge an employee for having filed a workers’ compensation claim but is also intended to ensure that employees do not have to fear reprisal from their employers when they file a workers’ compensation claim.” Having represented employees victimized by retaliation for more than 15 years, our Ocala based workers’ compensation retaliation attorneys will use Florida law to hold your employer accountable for punishing you for getting hurt at work and making a workers’ compensation claim.

Retaliation For Making Valid Workers’ Compensation Claim

In order to be protected against retaliation under section 440.205, an employee must make a valid workers’ compensation claim or attempt to make a workers’ compensation claim. For many years, Florida trial courts agreed with employers in holding that a valid workers’ compensation means a claim which is compensable under the Workers’ Compensation Law. In Smalbein v. Volusia County School Board, 801 So.2d 169 (Fla. 5th DCA 2001), the Florida Fifth District Court of Appeal rejected this interpretation of section 440.205 and held that a valid workers’ compensation claim means a meritorious claim. In reaching its conclusion, the Smalbein court reasoned that “construing a valid claim as a meritorious one provides the proper protection to injured employees seeking benefits without over-extending the protection to employees who file frivolous claims.” Thus, as explained by the U.S. District Court for the Middle District of Florida in Musarra v. Vineyards Development Corp., 2004 WL 2713264 (M.D. Fla. Oct. 20, 2004), a valid workers’ compensation claim under section 440.205 means “a claim which is ‘meritorious,’ as distinguished from a claim which is ‘compensable’ on the one hand or ‘frivolous’ on the other hand.”

Retaliation For Attempting To Make Workers Compensation Claim

Importantly, section 440.205 does not limit protection from retaliation to employees who make a valid workers’ compensation claim. Rather, as observed by the U.S. District Court for the Southern District of Florida in Stubbia v. Nopi Enterprises, Inc., 2013 WL 12101114 (S.D. Fla. April 5, 2013), section 440.205 protects employees from retaliation so long as they attempted to make a workers’ compensation claim. In Noboa v. Sygma Network, Inc., 2012 WL 1438833 (M.D. Fla. April 25, 2012), the U.S. District Court for the Middle District of Florida found that the employee attempted to make a workers’ compensation claim when he reported his work-related injury, filled out an injury report, and was driven by his supervisors to the employer’s chosen clinic for medical treatment.

Retaliatory Intimidation Or Coercion

For years, Florida trial courts adopted the position advanced by employers that section 440.205 only authorizes a retaliation claim when the employee was discharged from employment. In Chase v. Walgreen Co., 750 So.2d 93 (Fla. 5th Cir. 1999), the Florida Fifth District Court of Appeal rejected this construction of section 440.205 and held that section 440.025 creates a cause of action for retaliatory intimidation or coercion absent a discharge. This means that employers are prohibited from intimidating or coercing employees in retaliation for making or attempting to make a workers’ compensation claim. In reaching its conclusion, the Chase court reasoned that in enacting section 440.205 the Florida Legislature intended “to protect the employee’s access to the workers’ compensation remedy and not allow an employer’s intimidation or coercion to discharge filing valid claims.”

Workers’ Compensation Claim Against Prior Employer

Trial courts in Florida initially held that section 440.205 does not provide for a cause of action for an employee who is discharged by his or her present employer for having made a workers’ compensation claim against a prior employer. In Bruner v. GC-GW, Inc., 880 So.2d 1244 (Fla. 1st DCA 2004), the Florida First District Court of Appeal overruled this line of decisions. In Bruner, the plaintiff was discharged because he was deemed to be a workers’ compensation risk for having made a workers’ compensation claim against a prior employer. In reinstating the plaintiff’s lawsuit after dismissal by the trial court, the Bruner court held that section 440.205 does provide for a cause of action when an employer discharges an employee for having made a workers’ compensation claim against a prior employer. In reaching its conclusion, the Bruner court reasoned that to hold that the workers’ compensation claim must be made against the discharging employer “would have a chilling effect on an employee’s decision to file a meritorious workers’ compensation claim for fear of being discharged from a subsequent position merely because that employee filed a claim against a previous employer.”

Retaliatory Motive Need Not Be Only Reason For Discharge

Florida courts initially struggled with the issue of whether a retaliatory discharge claim under section 440.205 requires proof that an employee’s workers’ compensation claim or attempt to make a workers’ compensation claim was the only reason for the employee’s discharge. In other words, can an employee prevail on a retaliatory discharge claim under section 440.205 when the employer discharged the employee for a retaliatory reason and another reason? In Allan v. SWF Gulf Coast, Inc., 535 So.2d 638 (Fla. 1st DCA 1988), the Florida First District Court of Appeal held that “section 440.205 does not require that an employee’s pursuit of workers’ compensation benefits be the only reason for the discharge.” Rather, the Allan court determined, section 440.205 is violated when an employer’s desire or intent to retaliate was a “substantial factor” for the discharge even though “there may be other reasons for the discharge.” This means that a plaintiff can establish a retaliatory discharge claim under section 440.205 even when a retaliatory motive was not the only cause of the discharge and even when there was another objectively valid reason for the discharge. Moreover, under Allan, an employee is not required to establish a specific retaliatory intent in order to prevail on a retaliatory discharge claim under section 440.205.

Blatant Retaliatory Remarks Not Required To Prove Retaliation

Employees who have been retaliated against for getting hurt at work and making or attempting to make a workers’ compensation claim often believe they do not have legal grounds for filing a lawsuit because the employer did not tell them that the employment decision at issue was taken because they got hurt at work and made or attempted to make a workers’ compensation claim. However, it is not necessary that the employer tell the employee that the employment decision was taken because he or she got hurt at work and made or attempted to make a workers’ compensation claim in order to have a legal basis for filing a workers’ compensation retaliation lawsuit. It is extremely rare that an employer will expressly admit that the employment decision was taken because the employee got hurt at work and made or attempted to make a workers’ compensation claim. In other words, the employer will almost never say to an employee: we are firing you because you got hurt at work, because you made a workers’ compensation claim, or because you attempted to make a workers’ compensation claim. Such “smoking gun” evidence almost never exists in workers’ compensation retaliation cases and is not required in order to prove a retaliatory discharge case. Instead, workers’ compensation retaliation cases are almost always proven by circumstantial evidence.

Evidence Of Workers’ Compensation Retaliation

As observed by the Florida First District Court of Appeal in Hornfischer v. Manatee County Sheriff’s Office, 136 So.3d 703 (Fla. 1st DCA 2014), an employer generally “does not announce or state in writing that it is discharging an employee because he or she has filed a workers’ compensation claim.” Thus, because an employer will almost never admit to a retaliatory motive when subjecting an employee to an adverse employment action, workers’ compensation retaliation cases almost always must be proven by circumstantial evidence. In our section pertaining to retaliation, we identify some of the types of circumstantial evidence that can be used to prove that an employer’s desire or intent to retaliate may have played a role in the challenged employment decision.
The circumstantial evidence identified in our section pertaining to retaliation applies with equal force in the context of workers’ compensation retaliation claims. However, some forms of circumstantial evidence arise more frequently or are uniquely applicable in the context of workers’ compensation retaliation. In the workers’ compensation retaliation context, the types of circumstantial evidence that also can be used to prove that an individual’s workers’ compensation claim may have played an impermissible role in the challenged employment decision include:

• * Supervisors or managers make suggestions or exert pressure against the employee not to obtain medical treatment for the work-related injury. Likewise, supervisors or managers make negative remarks or exert pressure against the employee not to miss time from work in order to receive on on-going medical treatment for the work-related injury. For example, a supervisor or manager tells the employee that going to the doctor interferes with his or her work performance, creates problems for other employees, or needs to stop.
• * A short passage of time from when the employee made or attempted to make a workers’ compensation claim and the adverse employment action. For example, the employee is fired five weeks after initially receiving medical treatment for the work-related injury.
• * A short passage of time from when the employee returned to work following a leave of absence due to the work-related injury and the adverse employment action. For example, the employee is required to miss one week of work because of the work-related injury and is fired six weeks after returning to work following the leave of absence.
• * A short passage of time from when the employee is released by a doctor to return to work without restrictions and the adverse employment action. For example, the employee is terminated seven weeks after being released by a doctor to return to work without restrictions.
• * Making the employee perform work duties beyond the employee’s physician ordered work-restrictions.
• * Sudden negative treatment or hostility towards an employee who suffers an injury at work and makes or attempts to make a workers’ compensation claim. For example, making the employee perform unpleasant or demeaning duties, giving the employee a greater work load, depriving the employee of work-related assistance, making the employee do work duties other employees do not want to do, scrutinizing the employee’s work performance or attendance, reducing the employee’s hours, giving the employee a poor performance evaluation, or subjecting the employee to disciplinary action.
• * Remarks by supervisors or managers accusing the employee of not being hurt, embellishing the work-related injury, missing too much work due to the work-related injury, or milking the workers’ compensation claim
• * Remarks by supervisors or managers about how much money the employee’s workers’ compensation claim is costing the company.
• * Remarks by supervisors or managers showing a desire or intent to retaliate against the employee for getting hurt at work or for making or attempting to make a workers’ compensation claim.
• * Evidence that the employer retaliated against other employees who made or attempted to make a workers’ compensation claim. For example, the employer discharged other employees shortly after they got hurt at work and made or attempted to make a workers’ compensation claim. Likewise, the employer targeted other employees who made or attempted to make a workers’ compensation claim to abusive and harassing behavior.

This list is not exclusive and there are no hard and fast rules as to what type of evidence is needed in order to prove a workers’ compensation retaliation claim. As these examples are intended to show the different types of circumstantial evidence that can used to prove workers’ compensation retaliation, whether legal grounds exist for filing a workers’ compensation retaliation case would depend on other facts and circumstances in each particular case. However, if any of these things have happened to you, you may have been retaliated against for getting hurt at work and making or attempting to make a workers’ compensation claim.

Employment Law Blog

We offer more information about protection from retaliation for making or attempting to make a workers’ compensation claim in our employment law blog.

Contact Us Today For A Free Initial Consultation

As an employee who has suffered an injury at work and made or attempted to make a workers’ compensation claim, you are protected from retaliation by Florida law. If you have been the victim of workers’ compensation retaliation, please contact us for a free initial consultation with our Central Florida workers’ compensation retaliation attorneys. We have extensive litigation experience in protecting and fighting for the rights of employees who are punished for getting hurt at work and pursuing workers’ compensation benefits. Our employee rights law firm takes workers’ compensation retaliation cases on a contingency fee basis and if we fail to recover on your behalf, we do not get paid. Based in Ocala, Florida and representing employees throughout Central Florida, we are ready to take your workers’ compensation retaliation case and fight for your employee rights.