Will workers’ compensation cover me if I have a construction related injury even though I am an independent contractor?

January 20, 2022 in

The purpose of the workers’ compensation system is to provide an expeditious remedy for employees regardless of fault and liability. Employers in Florida must maintain workers’ compensation insurance coverage, with some exceptions. By providing coverage, employers are generally immune from civil liability for workplace injuries. If an employer fails to maintain coverage, an injured worker may pursue a workers compensation claim or file a civil lawsuit on account of the workplace injury or death. So, an employer enjoys immunity from civil suits when there is a compensable workplace accident. However, if the employer does not maintain workers compensation coverage, the door is open for the injured worker to then file a civil lawsuit, and the employer loses the ability to raise some defenses such as negligence by a fellow employee, or that the employee assumed the risk of the employment, or that the injury was due to the comparative negligence of the employee.

Generally, only employees are covered under the workers’ compensation law. Independent contractors are not considered employees. However, in Florida, the law is geared to protect construction workers by specifically including them within the definition of “employee”, even if they are technically independent contractors. Specifically, the law spells out that independent contractors working or performing services within the construction industry are considered employees. The workers’ compensation law includes all construction workers, even subcontractors unless a subcontractor takes out his/her own insurance.  Fl. St. 440.02(15).  If a subcontractor does not have coverage for itself or its employees, then liability lies with the general contractor.  General contractors are required to secure coverage for their employees and the employees of any of their subcontractors unless the subcontractor secures its own coverage for its employees.

The law states that for a contractor who sublets any part or parts of his or her contract work to a subcontractor, all of the employees of such contractor and subcontractor engaged on such contract work shall be deemed to be employed in the same business or establishment, and the contractor shall be liable for and shall secure the payment of compensation to all such employees except to employees of a subcontractor who has secured such payment.  Fl. St. 440.10(1).

Also, to protect workers engaged in construction, the legislature requires workers’ compensation coverage for construction industry employers who employ one or more employees as opposed to other private employers, outside of construction, who only need to obtain coverage if they have four or more employees.

Further, it should be noted that even employees within the construction industry that are sole proprietors or partners are considered employees unless they elect to be excluded from workers’ compensation coverage.  Fl. St. 440.02(13).

By securing workers’ compensation coverage, a subcontractor and or contractor is immune from a civil lawsuit for injuries arising from work. The subcontractor is protected by the exclusiveness of liability provisions from any action at law on account of injury to an employee of another subcontractor or of the contractor as long as he has secured Workers Compensation Insurance for its employees, or the contractor has secured such insurance on behalf of the subcontractor and its employees.  Fl. St. 440.10(e).

In a very recent case, Cabrera v. Kablelink, the issue involved whether the injured worker, who was installing a cable line, was considered a “construction worker” which would bring him within the Florida Workers’ Compensation Law as a statutory “employee”.  He was technically an independent contractor and not an employee.

The injured worker in the Cabrera case fell from a ladder while installing a cable line at a residential house, and then pursued workers’ compensation benefits from the cable company that hired him which we will refer to as his employer.  However, his employer denied benefits on the basis that he was an independent contractor and not an employee.  Under the Florida workers compensation law, an employer must pay compensation or furnish benefits after an accidental compensable injury arising out of or in the course and scope of employment. Fl. St. 440.09.

The dispute in this case centered around the definition of employee and whether the injured worker was engaged in work within the construction industry. Remember, that an independent contractor within the construction industry is statutorily considered an employee. Here, the employer argued that he was not considered an employee because he was not working within the construction industry, such that he was not deemed an independent contractor.

The Court in Cabrera had to analyze the definition of what was meant by working “within the construction industry”. It looked at the definition of work performed within the construction industry focusing on the activities performed and whether such substantially improved the use of a structure.

The definition of “Construction industry” under the Workers’ Compensation Law means “for-profit activities involving any building, clearing, filling, excavation, or a substantial improvement in the size or use of any structure or the appearance of any land.”  Fl. St. 440.02(8).  This is a broadly worded statute to protect workers involved in construction and does not just involve improvement to a structure.

The Court turned to the Rules and Regulations which adopt the business operations as described in the industry classification codes, NCCI, to examine the job factors defining each job description. The Court then evaluated the descriptions within the NCCI to determine if the work met the definition of construction. So, the question became whether the Job functions as described in the NCCI and as performed by the injured worker involved substantial Improvement to the use of a structure.

In a different case involving the repair of a roof, the court found that roof repair work fell within the construction industry as roof repair involved the improvement of a structure.  However, in another instance, the court denied that work was within the construction industry where a worker was injured after falling off of a trailer while hauling construction and demolition debris away from a job site; because there was no improvement of a structure. Similarly, in this Cabrera case, involving the installation of a cable line, the court did not find that there was a substantial improvement in the use of the home where the cable line was being installed.  Thus, the injured worker was not entitled to Florida’s workers’ compensation benefits, as he did not meet the definition of a construction worker; and therefore, was not considered an employee under the workers’ compensation law.

As demonstrated in this article, if you become injured while working in construction, there is a good chance that you will be considered an employee under the workers’ compensation law and will be entitled to workers’ compensation benefits. However, there may be some hurdles to jump through before your employer accepts liability, such as coverage. An experienced workers’ compensation attorney can help you navigate the system and ensure that you not only obtain the benefits that you are entitled to but help maximize your benefits.  If you have suffered a work-related injury, contact us at the LaBovick Law Group to see what benefits you may be entitled to.  We provide free consultations where we will review the facts of your case to determine the right course for you.  Call us today at (561) 625-8400 for your free evaluation.