Greetings,

A common phrase when discussing claims that appear to be caused by the claimant’s own less than well thought out action is “stupidity is not a defense.”   However, on occasion, “stupidity” can cost the claimant money.  Under the Florida WC statute, if the injury is caused by the claimant refusing to use a “safety appliance”, potentially we could reduce indemnity by 25%.   (We do have to continue to pay for full medical benefits.)

440.09(5) If injury is caused by the knowing refusal of the employee to use a safety appliance or observe a safety rule required by statute or lawfully adopted by the department, and brought prior to the accident to the employee’s knowledge, or if injury is caused by the knowing refusal of the employee to use a safety appliance provided by the employer, the compensation as provided in this chapter shall be reduced 25 percent.

Each case will be very fact specific, and we would be glad to discuss with you. 

A few key points:

• The safety device must be provided by the employer.
• The employer must enforce the use of the safety appliance.
• The claimant has to be made aware of the requirement to use the safety appliance.
• The failure to use the safety device has to be the cause of the injury.

The case below is one where the claimant clearly violated a safety rule by not wearing his seatbelt.   However, the E/C did not prove that had he had the seatbelt on, he would not have been injured because the bulldozer rolled down the hill regardless.

Escambia Bd. Of County Com’rs v. Reeder, 648 So.2d 222 (Fla. 1^st DCA 1994).

Claimant, a heavy equipment operator, was injured when the bulldozer he was operating slipped over the edge of a tall garbage mound at the county landfill and rolled over side-to-side several times. Claimant was thrown clear of the bulldozer before it came to rest at the base of the mountain of refuse. He sustained injuries mainly to his ribs, right shoulder, and right arm. Although clearly advised that safety devices must be worn during operation of Employer’s equipment, Claimant was not wearing a seat belt at the time of the accident.

Employer, by raising the statutory partial affirmative defense, had the burden to prove the existence of a causal relationship between the injuries sustained in the bulldozer accident and Claimant’s failure to wear a safety device.

The DCA concluded that although Claimant had been aware of and had knowingly disregarded Employer’s valid safety rule, the proof was insufficient to establish the requisite causal connection (between the injury and the failure to wear a safety device).

As always, let know if you have any questions.

Check our website for upcoming FL, GA and TN webinars and events:  https://eraclides.com/events/

Sincerely,

Morgan Indek | Managing Partner