If a construction worker is injured on the job in the course of his employment, workers' compensation is available to compensate the unfortunate person. Workers' compensation is said to be the exclusive remedy available to the employee. This means that the worker cannot sue his employer, even if the employer has committed gross negligence. In order to be provided with immunity from suit by their employees, the employer must properly secure workers' compensation coverage for their employees. Sometimes, the question of whether a worker is an "employee" will be in dispute. The worker then has the power to elect a remedy under the workers' compensation statute or to pursue a civil remedy, as in litigation. If a worker accepts a workers' compensation settlement, with a conscious intent to elect that remedy, he is said to waive any other rights. But there can be additional considerations as illustrated by a recent case.

In Hernandez v. United Contractors Corp., 2000 WL 873294, (Fla. 3d DCA 2000), a construction worker was arguably terminated from his employment. He returned to the jobsite the next day, and was told there was no work for him, but he was killed in an accident before leaving the site. There was a close question about whether he was still an "employee." The surviving common law wife (and two minor children) filed suit against the contractor and, simultaneously, applied for workers' compensation benefits. The wife reached a settlement for $10,000 with the workers' compensation carrier. The contractor then claimed that the wife had elected her remedy and the trial court agreed, granting the motion for summary judgment in favor of the contractor.

The appellate court reversed finding that the settlement of the workers' compensation claim was a matter of convenience for the parties and "did not constitute an election of remedies because she had no conscious intent to make an election of remedies and waive other rights." The court also made clear that the rights of the minor children were not waived by the settlement. The court was especially concerned with protecting the rights of the minor children stating, "There was no one in the workers' compensation proceeding to protect the interests of the minor children and to make sure that settling the case for ten thousand dollars was in their best interest." The court sent a clear message that a $10,000 workers' compensation settlement was not sufficient to provide for the future of two minor children when the father was killed in a construction accident.