Disability Law

E/C Not Entitled to Lien on Claimant's Legal Malpractice Claim

By David A. McCranie, Esq.

An employee in Florida retains his common law right to sue a third party tortfeasor for injuries sustained in an accident even though the employee receives workers' compensation benefits from his employer for those same injuries.  Section 440.39, Fla. Stat., however, entitles the employer to a lien on the proceeds of any such claim. The proper construction of that section was at issue in Anderson Columbia v. Brewer, decided by the First DCA on 10/22/2008.

Brewer was injured by a machine during the course of his employment with Anderson Columbia, Inc., and received workers' compensation benefits from them as a result of his injuries.  He subsequently hired an attorney to pursue a liability claim against the manufacturer of the machine, but the attorney allowed the statute of limitations to expire before he filed suit.  Brewer thereafter filed a legal malpractice claim against his attorney, and that suit was ultimately settled.  In the meantime, however, Anderson Columbia and FCCI, its workers' compensation carrier had filed a notice of lien in the malpractice case, contending that it was entitled to a lien on the proceeds of the malpractice settlement by virtue of §440.39.

The First DCA affirmed the trial court's order denying their claim of lien.  The claimant's attorney was not a "third party tortfeasor" within the meaning of the statute, said the court.

Full post as published by Florida Workers’ Compensation Law Blog on October 23, 2008 (boomark / email).