Civilized societies provide for those in need. Following work related accidents, many injured employees find themselves in need of financial and medical assistance. Considering the harsh treatment of injured workers through its workers' compensation system, it can be fairly said that the state of Florida is not civilized.
It wasn't always this way. There was a time in Florida when injured workers were treated with dignity and respect, furnished without fuss with sufficient medical and indemnity (lost wages) benefits to survive comfortably while working towards recovery and returning to work.
No more. Today's workers' compensation system is a gauntlet of detours and obstructions with little reward at the end for those few who somehow manage their way through. Making matters worse is that the lawyers who represent injured workers are severely restricted, by law, in the amount of compensation they may receive for fighting successfully against insurance companies that wrongly deny benefits, while no such limits apply to the lawyers who defend employers and their insurance companies.
This sorry state of affairs has been 20+ years in the making, although, not surprisingly, some of the more egregious aspects were promulgated during the reign of Jeb Bush as Florida's governor, from 1999 to 2007. (Governor Bush took a page from his brother George's book, who, as the Governor of Texas, presided over the dismantling of his state's WC system.)
Here's a sampling of how Florida reached this low point.
In 1990, amendments to Chapter 440, the body of law that contains Florida's workers' compensation laws, reduced the duration of temporary monetary benefits from 350 weeks to 260 weeks. Temporary benefits are payable to injured workers during the recovery process prior to maximum medical improvement. The 1990 amendments also reduced the 10 year wage loss program to a maximum of seven years with entitlement dependent upon the extent of permanent impairment. Under the 10 year wage loss system, injured workers left with a permanent impairment were eligible for lost wages so long as they conducted a good faith job search and were able to establish a connection between their injury and wage loss. In the case of a 6% permanent impairment, for example, which is the current guideline rating for a herniated intervertebral disc, a serious injury, the 1990 amendments reduced eligibility from 520 weeks to 78 weeks of wage loss. (Eligibility does not mean entitlement. As noted above, under the eligibility system, a job search must be performed and a connection between the wage loss and injury must be shown. Under an entitlement system, nothing has to be done or proved to receive the benefit.) In 2003, during the Bush years, the wage loss system was eliminated altogether, replaced by one in which an injured worker left with a 6% permanent impairment, for example, would be entitled to 12 weeks of impairment benefits and nothing more.
In essence, then, in little more than 21 years, lost wage benefits have gone from a maximum of 520 weeks, to a maximum of 364 weeks, to, in most instances, 12 weeks or less, a 98% reduction! (Not many injuries command a permanent impairment rating in excess of 6%.)
Prior to 1993, it was written into law that the workers' compensation laws were to be liberally construed in favor of of the injured worker. In other words, a tie goes to the injured worker. This was the friendly mentality under which the system had operated for nearly 60 years, since the Florida Legislature first enacted the "Workman's Compensation Act" in 1935. The Florida Legislature eliminated this precedent in 1993.
Also in 1993, the Florida Legislature reduced temporary benefits from 260 weeks to 104 weeks. The healing process for many serious injuries can extend far beyond 104 weeks. Notwithstanding this reality, the Florida Legislature chose an arbitrary cutoff that leaves many injured workers without temporary benefits while still healing and out of work. The Legislature also changed the standard injured workers must meet in order to be compensated, from a showing that it was more likely than not that the accident caused the injuries, to the more restrictive proof that the industrial accident is the major contributing cause of the initial injury. This means not only that the accident caused the injury but also that the accident "must be greater in significance than any other single cause." see Closet Maid v. Sykes, 763 So.2d 377 (Fla. 1st DCA 2000). The upshot of this is that a person with a preexisting condition could be denied medical and indemnity benefits even though an industrial accident results in the need of active medical treatment and an inability to work.
The 2003 legislation, spearheaded by Governor Bush, piled on even further. Where the claimant has a preexisting condition that combines with an industrial injury to require medical attention and results in lost wages, only the medical care and lost wages related to the accident are covered by the workers' compensation system. 440.15(5)(b). On its face, this may seem reasonable, but it is not reasonable when the claimant did not require medical care for the preexisting condition and was not suffering a wage loss, or the industrial accident increased the need for care and disability. It is not uncommon, for example, for a worker to be getting along perfectly fine with some degeneration of the spine due to the aging process, being pain free or at a manageable level, only to require active medical care and becoming disabled by the superimposition of the industrial injuries on the preexisting condition.
The legislature also:
- Imposed a more stringent burden of proof requirement to obtain benefits. In most cases, the claimant must now show that the industrial accident is the major contributing cause of the initial injury, i.e., at least 51 percent responsible instead of greater in significance than any other single cause.
- Required employees to pay for their own IMEs. See 440.13(5), Fla. Stat. (2006).
- Eliminated the right of injured workers to select their own doctors and allows the insurance company to communicate with those doctors without the worker's/patient's approval. This process is fraught with peril for injured workers. Fearing the loss of future referrals, doctors can be unwilling to anger the E/C with pro-patient opinions, and the selected doctors may not be qualified to treat the injuries or carry malpractice insurance.
All but the most biased and cynical individuals now believe that the workers' compensation no longer provides a reasonable alternative remedy to the personal injury system for those injured at work. It is time for a comprehensive overhaul of the workers' compensation system or to abolish it altogether.
****************************************************
Contact our office toll free at 866-785-GALE or by email to learn your rights,
Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals - the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
Leave a comment