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Nine Year Old Child Injured at CoCo Key Hotel and Water Resort in Orlando, Florida

By Farah & Farah on April 17, 2017

Recently, on Saturday, March 18, a nine year old boy was injured at the CoCo Key Hotel and Water Resort. In fact, he was unconscious when the emergency response team arrived and rushed him to the hospital. The managers of the resort declined to comment on what exactly happened, though it was revealed that the incident occurred while the child was playing in one the pools that are located at the Coco Key Hotel and Water Resort.

Hotels and resorts are a common location for accidents that cause a substantial amount of damage and serious injuries in Orlando, Florida, frequently resulting in premises liability claims against the business. Those who stay at these locations are considered to be invitees, as paying customers, and the hotels and resorts are responsible for maintaining the property and ensuring that their guests are safe when enjoying the many features and activities of a resort.

Of course, the staff and management will not be inclined to comment on the issue as they are preparing to face the challenges of a legal situation in which it behooves them to be particularly careful about what they might say concerning what exactly occurred. The management at the Coco Key Hotel and Water Resort have, no doubt, instructed their employees to keep quiet on the subject as they converse with their own legal representation.

This then calls into question the potential liability of the resort and how the family of the child might be able to recover compensation for the injuries and damages sustained by their child, who, we can only hope is able to fully recover from those injuries. Meanwhile, as the business consults their attorneys, the family would be wise to consult an attorney of their own.

What Exactly Does It Mean to be an Invitee at an Orlando, Florida Resort?

When any kind of personal injury occurs, it is important to know what your status is on the property. You could be a licensee, an invitee, or a trespasser, and this will determine whether or not a duty of care was owed to you and what kind of duty that was. For example, if someone has trespassed, there may be no duty of care owed, or a much lighter duty of care on the part of the property owner. As paying customers at this hotel and resort, the child and his family are considered to be invitees, just as they would be at a grocery store or any other business that welcomes the public or paying customers onto their premises.

What Determines Liability in a Personal Injury Claim Against the Hotel and Resort?

There are multiple factors that could indicate liability in a personal injury premises liability claim against the Orlando, Florida hotel and resort. Because the guests are invitees, they are owed a duty of reasonable care by the management and staff. Failing to take reasonable care to prevent injuries from occurring can be the fault of the management for not having safe policies and procedures in place to prevent such accidents, or it could fall on the staff who failed to follow through with the procedures and policies in place. Still, it is the hotel and resort management and owners who are responsible for the employees. Thus, if an employee’s negligence led to the personal injury that occurred, the family will likely have a valid claim against the resort.

Establishing Negligence on the Part of the Hotel and Resort Management or Staff

The guests who wish to pursue a premises liability claim against an Orlando, Florida hotel and resort will need to prove negligence. This means that they have to prove that they were a paying customer, an invitee, who was owed a duty of reasonable care. They must also prove that the hotel breached that duty of care in some way through the action or lack of action on the part of their management or staff. They must then prove that their injuries were caused by this breached duty of care, and that economic damages resulted.

What is Constitutes the Reasonable Duty of Care Owed by the Hotel and Resort?

There are many things that a hotel and resort needs to do to maintain a reasonable duty of care towards their guests. This includes regularly inspecting the property and addressing any hazards, discovering and repairing dangerous conditions, and/or warning guests of the given dangerous conditions. They should also ensure that there is adequate security. In the case of a resort with pools and water activities, there should be a lifeguard present and/or notification that there is not a lifeguard on duty. They also have to take care when hiring staff, by conducting background checks and ensuring that their staff are responsible and law abiding. If a staff member were to fail in his or her responsibilities, due to intoxication, for example, the hotel might be found negligent if they did not conduct a background check that might have revealed a history of alcohol or drug abuse, and/or if they did not conduct drug tests prior to hiring.

What Happens When Hotel and Resort Employees Make Mistakes?

Even though a hotel and resort cannot entirely control the actions of their employees, they are still legally responsible for the actions of those employees while they are working. Thus, if an employee is required to complete maintenance and fails to do so, resulting in injury, then the hotel and resort is still responsible for this. However, if the employee acted in a way that was egregiously negligent, willfully harmful, and directly against company policy, there may be situations where the employee is liable for the injury themselves.

The Attorneys at Farah & Farah Can Help You With Your Orlando Premises Liability Claim

If you or a loved one has found themselves in a similar situation in which an Orlando, Florida hotel and/or resort is potentially liable for your injuries, contact a experienced premises liability attorney in Orlando at Farah & Farah to schedule a free consultation and discuss the merits and value of your premises liability claim.

Posted in: Premises Liability

Should You Accept a Workers’ Compensation Settlement for Office Injuries in Orlando, FL?

By Farah & Farah on April 4, 2017

Work related accidents, injuries, and occupational illnesses can occur in any kind of work environment in Orlando, Florida, including office environments. When people think about work related injuries, they tend to imagine accidents involving machines in a factory, construction workers falling from heights, or overexertion injuries in occupations that require heavy lifting. When you think of occupational illnesses, you might imagine someone who has been exposed to asbestos or another illness related substance. People rarely consider the hazards that are present in an office, yet there are quite a few different accidents, injuries, and illnesses that can occur when you are employed in an office environment.

Orlando, Florida Office Workers Frequently Experience Fall Related Injuries 

Falling down is an extremely common source of injury in a variety of work environments, including offices. These kinds of incidents can occur because of poor lighting, damaged carpeting, spills, and various trip hazards. In some cases, office workers end up falling down stairs that are damaged or slick. The employer and management should make efforts to keep the work area safe by maintaining the floors and carpets, cleaning up spills, and ensuring that trip hazards like wires are placed in a safe and out of the way location.

Orlando, Florida Office Workers Can Experience Heavy Lifting Injuries

While you might not associate office work with heavy lifting, there are plenty of injuries that occur from this very activity in offices throughout Orlando, Florida. In fact, the very point that you might not expect such injuries to occur is part of why they do. Office workers may not be properly trained in heavy lifting, because they aren’t expected to be lifting heavy objects in the course of their usual day. Yet, there are plenty of activities that occur in an office, which can include lifting heavy furniture, heavy boxes of supplies, etc. To prevent such injuries, office workers should be trained to lift with their legs instead of their backs, and seek out assistance from co-workers with any objects that are too heavy for one person.

Orlando, Florida Office Workers Can Experience Injuries From Strain and Repetition

When you do imagine work related injuries occurring in an office, those that are caused from strain and repetitive motion are the ones you’re most likely to think about. This is because office workers spend a large amount of time sitting, often in uncomfortable or strained positions, and are subject to posture issues and repetitive motion injuries from using their keyboards and computer mouse to complete clerical work.

These issues often result in back injuries, neck injuries, shoulder injuries, and repetitive motion injuries like carpal tunnel. The best way to avoid such injuries is to ensure that the chairs are designed to provide optimal support, that the workers maintain posture, and have ergonomic tools at their disposal. Further, it is important for office workers who spend a lot of time sitting to take frequent breaks, walk around, exercise, and stretch.

Should You Accept a Workers’ Compensation Settlement for Your Office Work Injury?

Whether or not it is in your best interests to accept a settlement in your Orlando, Florida workers’ compensation case depends on your unique circumstances, and is something that you need to discuss with an experienced attorney to make the best decision for you. However, there are many good reasons to consider accepting such a settlement, which we can go over and which you can learn more about from Farah & Farah with a free consultation.

The number one reason that many people choose to accept a workers’ compensation settlement rather than to seek the standard wage and medical benefits is because it takes the stress of the claim off of their shoulders, settles it entirely in one action, and allows them to close that chapter of their lives with peace of mind. This is because you no longer have to deal with a claims adjuster once you settle, you no longer have to see the doctor that your workers’ compensation insurance provider approves, and you no longer have wait for workers’ compensation wage benefits checks to come to you before you can pay your bills.

The ability to seek treatment from any doctor you choose is an important benefit for many people who are pursuing a workers’ compensation claim settlement. You may wish to see certain specialists which are not approved for coverage by the standard workers’ compensation medical benefits. It is also important to note that when you can only see an approved physician, you may have to wait longer for appointments and wait to for the insurance company to approve certain treatments and medications. Once you accept a settlement, you can choose any doctor you prefer to see and you won’t have to wait for approval for treatment. You also don’t have to worry about seeking further compensation for your prescriptions, medical devices, and mileage, or approval for these expenses before you can get the things you need.

Another common reason that office workers would prefer to accept a settlement, rather than continue with the typical wage benefits and medical benefits of workers’ compensation insurance is because they can have more financial freedom. This is because you get a settlement in a lump sum, and you can do what you need to with the money. Your bills don’t have to wait for the next check, and you can get the groceries you need when you need them.

Finally, many people who are dealing with a workers’ compensation insurance company are continuously concerned that their benefits may cease, that their checks won’t come, or that their treatment won’t be approved. Once you accept a settlement, all of these fears and concerns are eliminated, and you can finally relax.

Contact Farah & Farah for More Information About Workers’ Compensation Settlements

If you’re debating whether or not you ought to accept a workers’ compensation settlement in Orlando, Florida after your office injury, contact a dedicated Florida work injury lawyer at Farah & Farah to discuss your options.

Posted in: Workplace Accidents

Subway Chicken Class Action Lawsuit

By Farah & Farah on March 8, 2017

There is potentially a class action lawsuit facing restaurant chain, Subway, over chicken that may, in fact, not be chicken. On the 3rd of March, a lawsuit was entered in the U.S. District Court of Connecticut after news erupted concerning a DNA report that the “chicken” used in Subway’s chicken food products is actually only 53.6% chicken meat. The reported stated that some sandwiches came back with worse results than others, like the sweet onion teriyaki chicken sandwich, which was discovered to be 42.8% chicken DNA.

Per the report in the lawsuit, Subway is the only restaurant, among the ones tested, that had a quantity of plant-based DNA great enough to be recognized as a species of soy. The lawsuit, which is twenty-two pages, lays out the allegation that the Connecticut-based corporation pays a substantial sum of money to adequately deliver deceptive information to customers all over the U.S.

Craig Moskowitz, a Stamford resident, had the lawsuit filed on his behalf after claiming he is a regular consumer of Subway’s products.

As of Monday evening, no one has been available to comment from the fast-food chain, Subway, nor has a lawyer been appointed to the case. However, the chain did blast back on the claim using their own website and different social media outlets, stating that according to their own DNA analysis, the chicken is 99% chicken DNA and the soy DNA is not greater than a single percent. On the use of soy, Subway claims that the plant is added to keep food products full of flavor and moist.

Concerns have been raised by both scientists and the restaurant chain as to the procedure implemented in the original report. “[The report] used factually incorrect data to suggest the chicken Subway serves might not be all chicken,” stated on the restaurant chain’s webpage. “The claims made in the story are false and misleading. We use only chicken—with added marinade, spices and seasoning. Producing high-quality food for our customers is our highest priority.”

Attorney for the Plaintiff, Sergei Lemberg, gave a statement to the Connecticut Law Tribune that, as of Monday, he would be having his firm conduct their own study of the chicken, so as to determine the percentage of chicken DNA in Subway’s menu items. Lemberg, owner of Lemberg Law in Wilton, Connecticut, made the comment that it would be “a couple of months” before the study would yield any results. “We’ll wait for the results and for the discovery process to shed light on whether this chicken is or is not completely chicken,” Lemberg was quoted on the matter.

At this point, it is unclear how many individuals are eligible to join the lawsuit, according to the lawsuit, but it clear that the numbers could be in the millions. It has not been made clear what is necessary to be a party to the class action. On this Lemberg made the comment that it would have to be determined in the discovery, but that all that could be needed is a receipt from Subway indicating a purchase of a chicken product.

Compensatory, punitive and statutory damages are being sought in the lawsuit.

Is Your Explorer Poisoning You With Exhaust?

By Farah & Farah on March 2, 2017

A federal investigation is focusing on exhaust fumes filling the cabin of the popular SUV, Ford Explorer.

Many consumers have complained of a rotten egg smell coming from the back of Ford Explorers. That smell may be more than unpleasant, it may be toxic.   

A dash cam video shows Newport Beach, California officer Brian McDowell behind the wheel of his 2014 Explorer police cruiser.  CBS News reports he was responding to a call when he blacked out behind the wheel, crossed into ongoing traffic and crashed into a tree.

McDowell dislocated his shoulder, suffered traumatic brain injury and a broken eye socket. 

There was no medical reason for him to black out. McDowell had no drugs or alcohol in his system.

The smell may be carbon monoxide and the issue seems to occur while the vehicle is accelerating with the AC on.   

NHTSA finally launched investigation in July after 154 customer complaints about the 2011 to 2015 model Ford Explorers. Now, CBS reports there are 450 complaints and they include the 2016 and 2017 Explorer models. 

NHTSA reports there have been no serious injuries, though office McDowell’s accident could hardly be discounted as “not serious,” since he nearly died.   

Officer McDowell is suing.

In Florida, Angela Sanchez-Knutson sued Ford in 2014 over the odor in her car. After eight service visits to a Sunrise dealership, the dealership said it had no idea how to fix the problem. 

Her lawsuit claims consumer protections laws have been violated.

Last October, in response to the Sanchez-Knutson lawsuit, Ford agreed to a national settlement to benefit up to one million consumers.

Consumers who purchased or leased a 2011 to 2015 Ford Explorer are part of the class which offers several components of relief – first, repairs including additional sealing efforts and parts replacement including HVAC recalibration. 

If necessary, the exhaust tips and muffler assembly will be replaced. 

Consumers will be offered cash if they are out of a warranty period. 

If the problem is not fixed, Ford will buy back the car. 

One million Ford Explorer owners and lessees must be directly informed about the exhaust issue as part of the settlement. 

The settlement was reached after the trial began. 

For its part, Ford has issued three repair bulletins since 2012 so car dealers can fix the problem. The bulletins do not mention the “dangerous quantities” of carbon monoxide leaking into the passenger cabin, according to a lawsuit filed against Ford. 

Ford also says consumers should contact their local Ford dealer and the odor “poses no safety risk.”

To remedy the situation for now, police cars in Newport Beach carry monoxide detectors in the cabin. CBS News reports some have gone off.

Takata Pleads Guilty to Criminal Wrongdoing Over Its Airbags

By Farah & Farah on March 2, 2017

Sixteen Americans have lost their lives due to defective air bags and now we know what those lives were worth.

Japanese auto parts maker, Takata agreed to a $1 billion fine to settle criminal felony charges that the company concealed the defects in millions of air bag inflators over a 15-year period. 

The decision occurred in a Detroit federal courtroom on the last day of February after Takata struck a deal with the Department of Justice.

The problem is in the ammonium nitrate-based airbag inflator. It causes the airbag to inflate with too much force, sending metal shards into the passenger cabin and its inhabitants. 

In pleading guilty to criminal wrongdoing, Takata admitted it provided misleading test reports to automakers.

Included in the settlement is a $25 million criminal penalty and $125 million for victims.  Also Takata must pay $850 million to the car companies as restitution.

Takata’s chief finance officer blamed the actions of certain employees as “deeply inappropriate.”

So far 42 million vehicles are being recalled in the U.S. Approximately 180 injuries have occurred along with the 16 deaths.  All but one of the deaths occurred in Honda vehicles, reports Reuters.

Other automakers involved include Toyota, Ford, Nissan and BMW, which have conducted 31 million vehicle recalls over the issue since 2008.

All automakers purchased Takata airbags for their vehicles, despite their awareness that they posed a danger.

“These automakers acted recklessly by putting price ahead of consumer safety, says Eddie Farah of Farah & Farah. 

Those six automakers are the subject of lawsuits by consumers who allege they kept using airbags they knew were defective.

Consumers should check NHTSA to find out if their vehicle is affected by the Takata air bag recalls.

Is There a Driver in that Car? Florida Leads Nation in Lax Driverless Car Laws

By Farah & Farah on March 1, 2017

You’ve seen stories about driverless cars around the country.

The Department of Transportation issued guidelines for safety of passengers in driverless cars after a Florida driver, who relied on autopilot, crashed his Tesla into a tractor-trailer with fatal results. 

Despite that setback, Florida lawmakers are eliminating roadblocks to the new technology with the state ridding itself of a requirement that self-driving cars be on our roads for testing purposes only. 

Florida’s love with driverless cars began five years ago when Florida state senator, Jeff Brandes, invited two Google self-driving cars to Tallahassee. He announced it was an “education campaign to get people to understand that this is the future.” 

Since then, the Florida legislature has passed HB 7027 that allows fully automatic vehicles on our state roads without a driver. Florida now allows anyone with a driver’s license to be behind the wheel of a self-driving car for any purpose, even if they are operating the car on autopilot, as long as they are capable of bringing it to a full stop.

The theory is that a vehicle’s occupant can relax and tend to business, like talk on the cellphone, rather than attend to the dreary drudgery of driving. Never mind that mass transit, trains and buses also allow a passenger to relax while putting fewer vehicles on our already crowded roads.

But that makes too much sense. 

The first state to pass legislation generally becomes a model for the remainder of the country, so all eyes are on Florida, especially in the area of liability.    

For example, who is responsible when a driverless car goes haywire – the driver or the technology? 

Manufacturers such as Ford, Google, BMW, Volvo, among others, argue that the autonomous technology advances will reduce human-error that causes nearly 40,000 traffic deaths every year.    

That remains to be seen, but there are indications consumers, injured by the driverless technology, may have to seek compensation from a common insurance pool rather than lay fault with a manufacturer. 

Already, manufacturers want the government to preempt or prevent product liability claims from being filed after an accident with one of these vehicles. The theory is if there was federal premarket approval of the technology, tort claims against the automakers should not be allowed.

Not only does that shut the courthouse door to you and me but it relies on taxpayers to pick up the tab for injuries and deaths allowing manufacturers to escape any responsibility. 

That’s a sweet deal for them, but very bad for the rest of us.

Proton Pump Inhibitors- Be Careful of Larry the Cable Guy

By Farah & Farah on February 27, 2017

You might want to think twice before taking medical advice from Larry the Cable Guy.

Larry tells you to take “One pill every morning” of Prilosec OTC (over-the-counter) medication to treat your frequent heartburn by decreasing the amount of acid in the stomach. Go ahead and eat that greasy plate of ribs.   

We are looking at new cases of kidney injury among Americans who take Prilosec and its next generation of Proton Pump Inhibitors (PPIs), Nexium, the little purple pill, both blockbuster drugs for global drug company AstraZeneca.

The kidneys are a pair of organs located in the back of the abdomen. Their job is to filter the blood.  PPIs may damage the kidneys by causing magnesium levels to drop. The use of PPIs may also cause acute kidney inflammation.

Prilosec still doesn’t have a warning about AIN (Acute Interstitial Nephritis), a drug-related kidney disease that can lead to organ failure. Nexium’s label does not have any specific warnings about these side effects even though the first report of Prilosec-induced AIN was published in 1992.

A published study in JAMA (Journal of the American Medical Association) Internal Medicine in February 2016 found using PPIs is associated with a 20-50% higher risk of developing chronic kidney disease, than among nonusers.

The drugs are actually intended for limited use up to 14 days, three times a year, so Larry has it all wrong with his “Pill a Day” prescription.  Still the ads continue.

To make matters worse, AIN can be asymptomatic and permanent leading to acute kidney failure or kidney injury. Stage 5 is the complete loss of kidney function leading to kidney dialysis and/or a kidney transplant.

Anyone taking these drugs long-term who suspects kidney damage might want to consider a series of blood tests which include BUN testing to measure blood nitrogen, used to diagnose kidney function. 

Doctors can measure the amount of blood creatinine, a waste product, to test the kidney function. Calcium tests screen for kidney disease as does a blood phosphorous test. 

Patients with kidney failure may have severe anemia from a lack of red blood cells.

AIN should be diagnosed early to avoid permanent kidney damage.

Besides kidney damage, plaintiffs have named AstraZeneca’s PPIs in defective product lawsuits accusing the company of failing to warn about an increased risk of bone fracture, heart attack, stroke and dementia.

The Judicial Panel on Multidistrict Litigation held a hearing late January 2017 to consider whether the growing number of PPI cases should be consolidated into one federal court for pretrial proceedings.

Questions Arise About Brain Supplements

By Farah & Farah on February 22, 2017

It’s a good idea to ask questions about supplements. After all, the U.S. Food and Drug Administration does not regulate the industry other than to clamp down on outrageous claims of muscle strength, sexual enhancement or heart health.

Brain boosters are the latest type of supplement that promise to keep your brain agile into your later years when Alzheimer’s disease threatens to wipe out memory and cognitive function. But are the benefits believable?

What is believable is that the supplement industry has enjoyed a ten-fold increase in the number of brain-boosting supplements marketed in the U.S. in the last twenty years.

According to Fair Warning, health product retailer GNC lists 354 products on its website with the word “brain.”

Sparked by the claims made by Quincy Bioscience of Madison, Wis. the makers of Prevagen, the Federal Trade Commission and New York State authorities sued the maker alleging the company makes false and unsubstantiated claims. 

New York Attorney General Eric Schneiderman believes the aggressive marketing is fraud that targets a vulnerable group – older Americans. A bottle of Prevagen can run as high as $69.

Prevagen’s ads say its key ingredient, the protein apoaequorin, was originally discovered in a rare jelly fish. In truth, the company makes the ingredient in a lab to save the cost of harvesting from jellyfish.

The Food and Drug Administration (FDA) says a supplement must be a food or all-natural, not made in a lab. Otherwise it is an unapproved drug. 

The Federal Trade Commission, in its complaint, believes there is no scientific truth that Prevagen will improve memory. It points to the company’s own clinical study that “failed to show a statistically significant improvement” in the treatment group when compared to a placebo group.

Quincy says the allegations are unfounded and points to its double-blind placebo-controlled study on brain performance.

The General Accounting Office is exploring whether brain supplement marketing claims are true.

Where does all this leave the consumer?

It may come down to who do you trust? Many consumers see supplements as a low-cost alternatives to drugs with fewer side effects and believe the FDA may be doing the bidding of the pharmaceutical industry which would love to market its own version of Prevagen for profit.

If vulnerable Americans were really being served, our regulators might require further proof of the claims made by the $37 billion a year dietary supplement business, rather than file actions to shut them down. 

Consumers should be suspicious of exaggerated or unrealistic claims whether made by the supplement industry or the pharmaceutical giants.

We’ve seen far too many examples of the FDA as a toothless tiger that has not done its due diligence to make sure that products on the shelf, whether a drug or supplement, are safe and effective.

When Robo Call Says Hello – You Say Goodbye

By Farah & Farah on February 13, 2017

Have you ever received a call where the first question from the caller is “Can you hear me?”  Most of us have, but when a caller asks for you to say “Yes” it’s better to say “Goodbye.”

It’s part of a new scam by the telemarketing industry.

You may not even know that the caller is an automated system or robocall. It sounds casual enough and most of us have asked or been asked whether the call is clear, so you may not even be suspicious. 

But according to police departments across the country, Consumerist reports the scammers may be recording your voice saying, “yes.”

That voice recording may later be used to sign you up for a service, a home alarm system or a cruise- something you never wanted. You voice recording may confirm you agreed to charges on a stolen credit card, when you didn’t.

In one lawsuit filed by the Federal Trade Commission, telemarketers told consumers they would provide them with identity theft protection services if they signed up for a new Medicare card, all they would need to do is provide their bank account numbers. In those cases the fraudulent recording was used to confirm the agreement.

Another scammer promised the victims would receive a prescription drug discount card. Those victims were allegedly coached on how to give a purportedly recorded authorization to withdraw from their bank accounts. The victims not only didn’t receive any discounts but they suffered additional harm from no-sufficient fund withdrawal fees.

The Federal Trade Commission oversees telemarketers and has examples of how telemarketers work to scam consumers.

You may want to screen your calls, but some scammers will obtain a local number so it looks like a local business is calling.  Check out a robo calling services that blacklists phone numbers who have been reported as Do Not Call violators.

You may reply with “I can hear you” if you have any doubts.  Best to just say “No” to any telemarketer whether live or recorded.

Posted in: Fraud

Can I Be Fired for Filing Workers’ Compensation in Florida?

By Farah & Farah on January 30, 2017

Employees who are injured while on the job in Florida are generally entitled to receive workers’ compensation benefits via their employer. However, injured employees are sometimes reluctant to file for workers’ compensation because they fear that if they seek benefits their employer will fire them in retaliation. Generally speaking, employer-employee relationships in Florida are governed by the traditional “at-will” employment doctrine. This doctrine holds that either the employer or the employee may lawfully terminate the employment relationship at any time. While the at-will employment doctrine holds true in almost every employment situation, there are a few notable exceptions in Florida that the legislature has carved out in the name of public policy. One of these exceptions is contained within the Florida Workers’ Compensation Act and prohibits employers from firing, or threatening to fire, employees for claiming workers’ compensation benefits. This exception is referred to as Florida’s workers’ compensation retaliation statute.

Florida’s Workers’ Compensation Retaliation Statute

Florida’s workers’ compensation retaliation statute is contained in section 440.205 of the Florida Statutes and states 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 Workers’ Compensation Law.”

If an employer in Florida violates this statute the injured employee can file a lawsuit claiming that the employer unlawfully engaged in workers’ compensation retaliation. However, injured employees should note that while Florida’s retaliation statute makes it illegal for employers to fire employees for seeking workers’ compensation benefits, the statute does not require employers to reserve an injured employee’s job while he or she takes time off from work to recuperate. In other words, in order to win their retaliation case the injured employee must have been fired, or threatened with termination, because they filed for workers’ compensation benefits. However, plaintiffs who are ultimately able to prove their workers’ compensation retaliation case can recover a variety of different damages, dependent on the circumstances of the case, including lost earning capacity, medical benefits, and lost wages.

Proving that Retaliation Occurred In Florida: Three Elements

Proving that an employer engaged in workers’ compensation retaliation can be extremely difficult, but is by no means impossible. In order to win a retaliation case in Florida the injured employee must be able to prove all three of the elements listed below, which the court explained in the landmark case Russell v. KSL Hotel Corp.:

Element 1 – He or She Engaged in a Statutorily Protected Activity: Filing for workers’ compensation benefits is a statutorily protected activity under Florida’s Workers’ Compensation Act. Therefore, if an injured employee can simply show that he or she filed for workers’ compensation benefits then this first element will be satisfied.

Element 2 – He or She Suffered an Adverse Employment Action: As the retaliation statute outlined above notes, there are a number of different ways in which an employer can engage in illegal retaliation against an employee. In order to satisfy this element the injured employer simply needs to show that they suffered an adverse employment action. For example, the injured employee can satisfy this element by providing evidence showing that they were fired.

Element 3 – There is a Causal Connection Between the Adverse Action and the Protected Activity: In order to show that there is a causal connection between the injured employee filing a workers’ compensation claim and the resulting adverse employment action, the employee must show that the employer knew that that the employee was seeking workers’ compensation benefits and terminated, or threatened to terminate, the employee because of this knowledge.

How Can Employers Defend Against Claims of Retaliation?

After an injured employee argues in court that their employer unlawfully retaliated against them for filing for workers’ compensation benefits, the employer is then given an opportunity to explain why the employee was fired, or suffered some other adverse employment action. In order to defeat the employee’s retaliation claim, the employer must provide a legitimate and non-retaliatory justification for their actions. For example, an employer may be able to show that an injured employee’s job was eliminated due to budget cuts, rather than to punish the employee for seeking workers’ compensation. Essentially the employer has to show that they would have taken the same adverse employment action against the employee regardless of whether or not the employee filed for workers’ compensation benefits. The book Understanding and Preventing Workplace Retaliation provides the following list of evidence that employers often find helpful when attempting to show that they had a legitimate reason for firing an injured employee. Helpful evidence includes:

Examples of other employees who were also fired, but who did not file for workers’ compensation benefits,
Evidence of disciplinary procedures or performance concerns involving the injured worker that occurred before he or she filed for workers’ compensation, and
Evidence showing that the employer holds all employees to the same workplace rules or standards, regardless of who has filed for workers’ compensation.

If the employer succeeds in providing a legal justification for their actions, then the employee is given the opportunity to show that the employer’s justification is in fact a pretext. If the court agrees that the employer’s alleged justification is nothing more than a pretext, then the injured employee will win the retaliation case. If not, then the employer will be off the hook.

Need Legal Advice?

If you believe that you were fired in retaliation for filing a workers’ compensation claim consider filing a retaliation lawsuit without delay. Even if you aren’t completely sure whether or not your employer’s actions legally constitute retaliation in Florida, contact the experienced Florida workers’ compensation lawyers at Farah & Farah to discuss whether or not you have a case during a free initial consultation. Our firm is committed to working tirelessly to protect our clients’ rights and to holding employers in Florida accountable for their legal obligations to their employees. Call our office today.

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The attorneys of Farah & Farah in Jacksonville, Florida have experience with personal injury, medical malpractice, product liability, workers’ compensation, social security, injury and negligence lawsuits, family law and criminal defense. Eddie Farah and our team of Jacksonville attorneys are proud to represent working people and families throughout the country.

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