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Injured Intern: Compensable?

By: Ben Chase, Associate, Orlando

School is back in session, and I’m sure you know what that means: Intern Season (or, “SZN”), depending on your preference. Bringing on interns at your company is always an exciting time. The fresh faces at work and the interns’ excitement about their new opportunity, typically brings an invigorating and electric energy to the workplace environment. But what happens if your intern suffers an injury while on the job?  

Section 3.05[11] of the Florida’s Workers’ Compensation Handbook states, “postsecondary education level students participating in internships throughout the state are not “employees” or “volunteers” and are not eligible for workers’ compensation benefits.  

In Orange County Sch. Bd. v. Powers, 959 So. 2d 370 (Fla. 1st DCA 2007), a student from the University of Central Florida (UCF) was interning at an elementary school in Orange County when a student shoved her from behind, resulting in her hitting a wall. The student was advised by the school to contact UCF regarding medical treatment, but UCF advised the Claimant that the University was not responsible for her injuries.  The Claimant then filed a Petition for Benefits seeking benefits from the Orange County School Board (OCSB). The OCSB filed a notice of denial, asserting the Claimant was not an employee of OCSB at the time of her accident. Florida Statute,  §440.02(15)(a) defines an employee as “any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors.” Even though the Claimant did not receive monetary remuneration, the Judge of Compensation Claims initially found that the Claimant was an employee because she received remuneration, or valuable consideration, from OSCB, since the internship was required in order for the Claimant to obtain her degree in education.  

The First DCA rejected the JCC’s interpretation of the definition of “employee,” and found that although the Claimant obviously received a benefit from the internship because it was required to obtain her degree, the Claimant was merely a full-time student of UCF who was participating in a course entitled “Internship II.” Education received in exchange for payment of tuition is not a benefit for purposes of F.S. 440.02(15)(a).  

The JCC also found that the student was entitled to workers’ compensation benefits pursuant to F.S. 1012.39(3) (2003) which states, “A student . . . under the direction of a regularly employed and certified educator shall . . . be accorded the same protection of law as that accorded to the certified educator . . . “ 

F.S. 1012.69, however, states that nothing in Chapter 1012 shall supersede any provisions of the Workers’ Compensation Law. Thus, F.S. 1012.39 does not automatically provide workers’ compensation coverage, and the Claimant must still meet the definition of an employee in F.S. 440.02(15)(a).

Additionally, the JCC correctly rejected the Claimant’s argument that she was not an employee, but a “volunteer”, eligible for worker’s compensation benefits under section 440.02(15)(d)(6). This subsection states an “employee” does not include a volunteer except a volunteer worker for the state, county, municipality or other governmental entity. The JCC found that the Claimant was not at the elementary school for the purpose of aiding, but was there to further her own goal of completing her required Internship.  

The Court ultimately found that the Claimant did not meet the definition of an “employee” and the Order on appeal was reversed. As “Intern Season” begins, you and your team should embrace the excitement and energy the fresh faces bring, and know that they will not be considered employees or volunteers in the unlikely event they suffer an injury.