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Who Pays for Damages When The Driver is On the Job?

by | May 22, 2014 | Car Accidents, Damages - Money Awards, Injury

Last Update: 1/23/22

Get key information about your worker’s compensation rights so you can maximize your benefits claim.

In Florida, Florida’s Workers’ Compensation Act protects employees who are injured in all sorts of on-the-job accidents — including those workers who are hurt while driving a vehicle as part of their duties.

The purpose of the law is to allow employees to quickly recover benefits without the need to prove their employer, or any third party, was negligent. This is true as long as the injury occurred in the course of the worker’s employment.

 

Workers in Driving Accidents While on the Job in Florida

Most of us think of a delivery truck driver, cab driver, or a big rig trucker, as the type of worker hurt in an on-the-job car accident. However, car accidents covered under Florida’s worker compensation laws are for all sorts of work-related reasons.  In fact, the worker/employee’s job doesn’t have to relate to driving in order for the worker compensation laws to apply.

The key here is that the driver must be able to show that he or she was “on the job” at the time of the crash.

Here are a few examples:

  • Running an errand for your boss
  • Driving to deliver something to a client
  • Driving clients on job-related travel (e.g., real estate agent showing properties, or taking a client to a business meeting)
  • Traveling for work
  • Driving for a job-related reason, like purchasing office supplies.

Read: Was the At-Fault Party Driving a Company Car or Commercial Vehicle?

Florida’s Worker Compensation vs. Your Florida Insurance Policy

When it is determined that the traffic accident happened while the driver was working, then Florida’s workers’ compensation law takes over; the Workers’ Compensation policy (the one provided by the driver’s employer) is where damages, for things like medical bills and lost wages, will be paid.

In industry terms, the Florida Workers Compensation coverage is “primary” over the driver’s insurance policy.

As mentioned above, there is no issue of fault here, unlike other car crash damage claims in Florida. If a driver is hurt in a traffic accident while on the job, these benefits are paid without anyone going into arguments about who is to blame for the crash.

What is covered by Florida’s Workers Compensation?

Since this is a law passed by the Florida Legislature, the benefits provided to the employee is defined in the Statute and the workers’ compensation system.  However, there are some important facts to know, including:

  • No pain and suffering damages are covered
  • Not all lost wages are paid
  • No PIP claim is paid
  • Medical expenses may or may not be paid – it depends upon whether they are allowed as covered damages

The key here is a determination of the worker’s pay. Under Florida Workers’ Compensation Law, the amount of benefits payable is calculated based on an employee’s average weekly wage. The law provides that, except as otherwise provided in the Law, the AWW of the employee on the date of the accident must be taken as the basis upon which to compute compensation, subject to limitations on the amount of compensation.

From the statute:

440.14 Determination of pay.—

(1) Except as otherwise provided in this chapter, the average weekly wages of the injured employee on the date of the accident shall be taken as the basis upon which to compute compensation and shall be determined, subject to the limitations of s. 440.12(2), as follows:

(a) If the injured employee has worked in the employment in which she or he was working on the date of the accident, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the accident, her or his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks. As used in this paragraph, the term “substantially the whole of 13 weeks” means the calendar period of 13 weeks as a whole, which shall be defined as the 13 calendar weeks before the date of the accident, excluding the week during which the accident occurred. The term “during substantially the whole of 13 weeks” shall be deemed to mean during not less than 75 percent of the total customary hours of employment within such period considered as a whole.
(b) If the injured employee has not worked in such employment during substantially the whole of 13 weeks immediately preceding the accident, the wages of a similar employee in the same employment who has worked substantially the whole of such 13 weeks shall be used in making the determination under the preceding paragraph.
(c) If an employee is a seasonal worker and the foregoing method cannot be fairly applied in determining the average weekly wage, then the employee may use, instead of the 13 weeks immediately preceding the accident, the calendar year or the 52 weeks immediately preceding the accident. The employee will have the burden of proving that this method will be more reasonable and fairer than the method set forth in paragraphs (a) and (b) and, further, must document prior earnings with W-2 forms, written wage statements, or income tax returns. The employer shall have 30 days following the receipt of this written proof to adjust the compensation rate, including the making of any additional payment due for prior weekly payments, based on the lower rate compensation.
(d) If any of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wages of the injured employee shall be used, except as otherwise provided in paragraph (e) or paragraph (f).
(e) If it is established that the injured employee was under 22 years of age when the accident occurred and that under normal conditions her or his wages should be expected to increase during the period of disability, the fact may be considered in arriving at her or his average weekly wages.
(f) If it is established that the injured employee was a part-time worker on the date of the accident, that she or he had adopted part-time employment as a customary practice, and that under normal working conditions she or he probably would have remained a part-time worker during the period of disability, these factors shall be considered in arriving at her or his average weekly wages. For the purpose of this paragraph, the term “part-time worker” means an individual who customarily works less than the full-time hours or full-time workweek of a similar employee in the same employment.
(g) If compensation is due for a fractional part of the week, the compensation for such fractional part shall be determined by dividing the weekly compensation rate by the number of days employed per week to compute the amount due for each day.
(2) If, during the period of disability, the employer continues to provide consideration, including board, rent, housing, or lodging, the value of such consideration shall be deducted when calculating the average weekly wage of the employee so long as these benefits continue to be provided.
(3) The department shall establish by rule a form which shall contain a simplified checklist of those items which may be included as “wage” for determining the average weekly wage.
(4) Upon termination of the employee or upon termination of the payment of fringe benefits of any employee who is collecting indemnity benefits pursuant to s. 440.15(2) or (3), the employer shall within 7 days of such termination file a corrected 13-week wage statement reflecting the wages paid and the fringe benefits that had been paid to the injured employee, as provided in s. 440.02(28).
(5)(a) If the lost wages from concurrent employment are used in calculating the average weekly wage, the employee is responsible for providing information concerning the loss of earnings from the concurrent employment.
(b) The employee waives any entitlement to interest, penalties, and attorney’s fees during the period in which the employee has not provided information concerning the loss of earnings from concurrent employment. Carriers are not subject to penalties under s. 440.20(8)(b) for unpaid compensation related to concurrent employment during the period in which the employee has not provided information concerning the loss of earnings from concurrent employment.

Can You Still Seek Compensation From The At-Fault Driver For Your Damages? Can You Still File a Lawsuit?

Having coverage under Florida’s workers’ compensation system does not bar an injury victim from seeking damages from those who are to blame for the accident.

If a driver is seriously injured in a car crash while on the job, it is perfectly acceptable for them to file a Workers Compensation claim and to file a lawsuit for personal injury damages against those responsible for the crash. Often, this is a wise decision because the ultimate money award will include more damages (like pain and suffering, for example) than the workers’ compensation claim will provide in benefits.

Two things here:

1.  When you win your damage award against the negligent party who caused the accident and your injuries, then you will have to refund those workers’ compensation benefits out of that total money damage sum.

2.  If you don’t sue the person who caused the crash, then your workers’ compensation insurance company may do it on your behalf anyway, in order to get reimbursed for what has been paid in benefits. This is called their right to “subrogation” or reimbursement and it’s allowed under Florida law.

What Should You Do?

A good piece of advice if you have been harmed in a Florida car accident while you are on the job, is to speak with an experienced personal injury lawyer before you file a claim to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in-person) to answer your questions.

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.

 

 

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1 Comment

  1. kathy mahon
    kathy mahon on March 26, 2017 at 3:57 pm

    Helllo,
    Just a question: Grandson cut his hand at the restaurant where he worked. Drove himself to the ER had it stitched up on the way back to work an unknown driver ran a stop sign causing him to veer off the road hitting a tree. He’s been in a coma 22 days. Is that covered under Fl workmans comp?