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Circuit judge tosses workers' comp law.

With two related cases already pending at the Florida Supreme Court, an 11th Circuit judge has held Florida workers' compensation law unconstitutional for inadequately compensating injured workers.

Judge Jorge E. Cueto issued his summary judgment opinion August 13, writing that "The Legislature has repealed numerous classes of benefits since 1968, including permanent partial disability without replacing any of them with equivalent benefits....

"I find that the Florida Workers' Compensation Act, as amended effective October 1, 2003, does not provide a reasonable alternative remedy to the tort remedy it supplanted. It therefore cannot be the exclusive remedy. [F.S.] [section]440.11 [which makes workers compensation the exclusive remedy for virtually all injured workers] is constitutionally infirm and invalid."

The opinion came as two other workers' comp appeals are pending at the Supreme Court, both of which challenge the constitutionality of the system. Those, however, are more conventional in that they started as cases filed in the workers' comp system, and were appealed through the First District Court of Appeal, which handles all workers' comp appeals.

Attorney Mark Zientz, who brought the case before Judge Cueto, also noted the Supreme Court appeals involve challenges to limited sections of the workers' compensation law (although they ask that the statute be found unconstitutional), while the 11th Circuit case challenges the entire law.

The Miami-Dade case started with a worker filing a negligence action in circuit court. When the employer raised the workers' compensation law as an absolute defense, the plaintiff sought declaratory relief that the workers' compensation law is unconstitutional.

Both Florida Workers' Advocates (FWA) and Workers' Injury Law & Advocacy Group (WILG) intervened on the plaintiff side, but the employer dropped the affirmative defense and got the underlying negligence case severed from the declaratory relief portion. The Florida Attorney General's Office (which became the respondent in the declaratory relief action) was notified of the case.

The AG's office declined to defend the case, but submitted a memo saying the case was not properly before Judge Cueto and that the state's workers' compensation law is constitutional.

The judge initially declined the interveners' motion for a summary judgment, saying there was no longer any "present controversy" to justify declaratory relief. FWA and WILG then got a worker to join the declaratory relief action, and the judge issued his summary judgment ruling, saying it was proper to decide the case since it was likely that similar cases would come to the court, and that employers should not be able to avoid a constitutional review simply by dropping the workers' compensation law as an affirmative defense.

Judge Cueto listed a litany of ways that rights and benefits for injured employees have been eroded since voters approved the 1968 Florida Constitution. That included that the workers' compensation system ended the opt-out provision for workers and employers; a 1973 Supreme Court ruling that changed the state tort system from a contributory to comparative fault system; the closing of the state's office that enforced workplace safety; and that benefits have continually been reduced. Judge Cueto particularly referred to 2003 changes that included limits on permanent partial disability.

With the latter, treatments were limited to 104 weeks and if injured workers needed additional medical care, they have to pay part of the costs or forego that care. And if their partial disability means they have to accept a lower paying job, there is no compensation for the lost wages, Judge Cueto said. That violates minimum benefits requirements set in cases decided by the First District Court of Appeal and the Supreme Court, the judge said.

He pointed to evidence from an expert for the plaintiffs who said that Florida has the most restrictive benefits for permanent partial disability in the country and that permanent partial and temporary benefits are the majority of benefits in the workers' comp program.

Judge Cueto said the Florida Supreme Court has ruled that the workers' compensation system cannot eliminate any benefits that were available in 1968 when the constitution was adopted, but that changes since then, especially for permanent partial disability, have eliminated benefits. He found that violated both the Florida Constitution and the equal protection clause of the 14th Amendment.

The Attorney General's Office filed a response to Judge Cueto's show cause order when the office was notified of the challenge to the constitutionality of a state law. The AG's office cautioned that "neither the State of Florida nor the Attorney General is a party in this action, and submission of this memorandum should not be construed as a request to intervene or as a concession that the state or the Attorney General is a party."

The AG argued that Judge Cueto had no issue before him, since the original employer and employee had been removed from the case. Adding another employee did not cure the problem, and there was no defendant to defend the summary judgment, since the judge was without power to compel the Attorney General to enter the case.

"There were no adversaries, and being none, there was no actual controversy," the AG's response said.

Even overlooking those infirmities, the AG argued that the state's workers' compensation law is constitutional and a legitimate exercise of the Legislature's powers that meets the requirements of existing case law.

"The 1993 legislation, which reduced temporary disability benefits to 104 weeks, followed extensive study, and was passed during a special session to address a crisis facing the workers' compensation system," the AG's said. "The Legislature found a compelling need for reform to address skyrocketing insurance and health care costs."

Asked if the office would appeal, Whitney Ray, press secretary for Attorney General Pam Bondi, said, "We have defended the statute, and we are reviewing the ruling."

Ray gave no timetable for when a decision might be made.

Zientz, the attorney who brought the case, said he thinks the constitution and state law requires Bondi's office to defend the constitutionality of state statutes.

Bill Ragnor, chair of the Bar's Workers' Compensation Section, said the ultimate impact of Judge Cueto's ruling might depend on it being appealed.

"Unless it's appealed, I think it's very limited," he said. "It's a circuit judge's decision which doesn't have any precedential effect on other circuit courts."

Nonetheless, he said the ruling was the talk of the annual Workers' Compensation Institute's Education Conference, held in Orlando a few days after Judge Cueto ruled.

Zientz said the scope of the 11th Circuit case is broader than either of the appeals pending at the Supreme Court (see story in the July 1 News). One of those cases, Wesphal v. City of St. Petersburg, case no. 13-1930, challenges the 104-week limit on temporary disability benefits, which were exceeded by a St. Petersburg firefighter. The court heard oral arguments on that case June 5. The second case, Marvin Castellanos v. Next Door Company, case no. 13-2082, challenges the attorneys' fees provision of the law in a case where a law firm was awarded, using the formula set out in the law, $164.54 for 107.2 hours of work in a case where the judge of compensation claims found that amount of time was reasonably justified. That case has not had oral arguments.

Both of those cases, Zientz said, attack small parts of the overall law, while his case addresses the entire workers' compensation statute. Zientz argued that benefits and safety considerations have been so whittled away that the grand bargain underlying workers' compensation--giving up the right to sue under tort law in exchange for guaranteed health care and income replacement for injured workers--is no longer valid.

"This is the one that looks at whether the workers' compensation benefits are a fair and adequate replacement for the tort benefits that were given up," Zientz said.

And it isn'tjust benefits. He said until 2003, Florida had an office that inspected workplaces for safety and which was funded by workers' comp fees. But that year, the Legislature did away with the office.

"The workers comp pact, the grand bargain, was the employers have to provide benefits without fault, but they also have to provide safe workspaces," Zientz said. "Instead of reducing workers' comp costs by reducing accidents, they just reduced benefits."

By Gary Blankenship

Senior Editor
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Author:Blankenship, Gary
Publication:Florida Bar News
Geographic Code:1U5FL
Date:Sep 1, 2014
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