Florida Workers Compensation Unconstitutional???

Florida Workers Compensation

A Miami circuit court judge has ruled that the Florida Workers Compensation law is unconstitutional!  In an August 13 opinion, Judge Jorge E. Cuelo, who sits on the bench for the 11th judicial circuit, has declared that the law violates several constitutional provisions, both in the U.S. Constitution and the Florida Constitution, one section of which the right to be Rewarded for Industry.

The ruling states that the system as it now exists does not provide an adequate remedy for injured Florida workers.   He focuses on the provision of Florida statute Section 440.11 that makes workers compensation the exclusive remedy for injured workers.

Quid Pro Quo

Workers compensation was established in the early 1900’s as a method for quickly compensating workers for injuries sustained on the job.  The first states to adopt it were in the industrialized north, where there was much manufacturing.  Florida was among the last of the states to implement a system, adopting its first workers compensation laws in 1935, when businesses and residents were moving to the state.  Prior to this, the industries were primarily agricultural and the population was much smaller – there didn’t seem to be the need for a workers compensation system.

Until the implementation of workers compensation, the only recourse an injured worker had was to sue the employer.  Not only was this costly and time consuming, the worker had an almost insurmountable task in proving the employer’s liability.   The worker had to prove that even if the employer was negligent, they in no way contributed to their own injury.  They also had to prove that a “fellow servant” had not caused the injury, and that they had not “assumed the risk” of injury by working in a dangerous occupation.  This was a very difficult standard to meet, and many workers went uncompensated, or settled with the insurance companies for much smaller sums than they might have obtained in a trial.

The implementation of workers compensation programs was meant to expedite compensation for the worker injured on the job.  It was no longer required to prove negligence on the part of the employer, nor did the “fellow servant” or “assumption of the risk” rules apply.  The trade-off was that now benefits provided under workers compensation would be the exclusive remedy of the injured worker.  They were prohibited from suing their employers for negligence.  The employer paid the premium and enjoyed immunity from litigation, and the worker got some benefits.  Then states began chipping away at those benefits.

The Opinion

In his 21 page decision Judge Cuelo wrote that, “The benefits in the Act have been so decimated that it no longer provides a reasonable alternative to filing suit.”  This decimation did not happen all at once, but rather, in stages.

He bases this on the various amendments to the Act since its inception.  When the Act was first implemented, both employers and employees could “opt out” of the system.  This meant the injured worker could sue in court, but subject to the tough burden of proof discussed above.  It may have been a difficult task to prove liability, but at least there was an alternative remedy.  This changed in 1970 when the “opt out” election was repealed.

The worst decimation of injured workers’ rights occurred, in his opinion, with the 2000 and 2003 amendments.  These amendments eliminated payment for permanent partial disability.  It also terminated total permanent disability payments at age 75, or after 5 years.  It does not provide full medical coverage for the injured worker; instead, after the worker has reached Maximum Medical Improvement (MMI) it provides for a co-payment.  If the worker cannot provide the co-payment, then they do not receive medical care.

The opinion cites to several Florida Supreme Court cases as well as a United States Supreme Court case which seem to indicate that in order to be constitutional, the workers compensation system must be an adequate, reasonable remedy as a replacement for a tort action.  In his opinion, the current state of the Florida does not meet this standard, and violates basic constitutional rights, such as the right to a trial by jury to resolve differences.

Insurance Companies Response

As you might guess, this ruling has the insurance companies scrambling to figure out what their next move might be in this skirmish.   A few insurance industry newsletters have suggested that the industry will chime in on the subject by way of litigation and lobbying for legislative support.

Many of the provisions of the amendments in 2000 and 2003 were included because the workers compensation premium rates were the second highest in the country.  Businesses were pleading tough economic times and warned of impending economic crisis unless something was done.  Insurance companies were threatening to not write the policies, not renew policies, change underwriting practices and restrict benefits if the laws did not change.  They cited rampant fraud within the system and higher than normal medical care costs.  Since the implementation, premiums for employers have decreased substantially, but seemingly at the cost of the injured worker’s health and well-being.

What Do I Do Now?

If you have been injured while on the job, you should go about filing the Workers’ Compensation claim as you would have in the past.  Be aware there are specific rules about the time within which you must file, and the procedures you must follow.  An attorney experienced in Florida workers compensation law will be able to help you.

It’s not over yet, so let’s not prematurely celebrate a victory for Florida workers.  The ruling will most certainly be appealed, and it remains to be seen what the outcome will be of those appeals.   Just yet, this ruling is only applicable to Miami-Dade county, so there will likely be many appeals on adverse workers compensation claim rulings, and an attempt to sue the employer in civil court.

Obviously, this ruling generates lots of questions regarding current and former claims, what legislative action must be taken, what will be the outcome of the appeal of this ruling.   This issue could take years to get through the courts, and we know that the insurance and business lobbies are going to spend lots of money for the coming litigation.  If you have questions , consult with an experienced workers compensation attorney for answers