Florida’s Workers’ Compensation System is Worse Than Ever … If You’re an Injured Worker

worker2.jpgFlorida once treated its injured workers with dignity and respect. This is no longer the case. Current workers’ compensation laws treat injured workers as expendable commodities. Little regard is given to their health and well-being.

Rather than being a non-adversarial system for the provision of needed and deserved benefits, as it was originally designed to be when adopted in Florida nearly 80 years ago, Florida’s workers’ compensation system has become a gauntlet of detours and obstructions with little reward at the end for those few who somehow manage to find their way through.

Complicating matters greatly for injured workers is that their lawyers are prohibited from being compensated fairly for their services. This was a clever scheme formulated by former Governor Jeb Bush and his Republican colleagues in 2002 to keep injured workers from being represented adequately. Here’s proof in the pudding: In Jennifer Kaufman v. Community Inclusions, Inc./Guarantee Insurance Company, the claimant’s attorney successfully prosecuted claims against the employer/insurance carrier. For his services, which consumed 100.3 hours, he received a whopping court awarded a fee of $648.41, or $6.48 per hour. (The fee was awarded by Judge E. Douglas Spangler, Jr. To Judge Spangler’s credit, he wrote in his Final Compensation Order that the attorney deserved a fee in excess of $25,000, but that his hands were tied by the workers’ compensation attorney’s fee statute, 440.34. Judge Spangler also expressed dismay that the employer/carrier were allowed to pay their own defense attorney $14,720.) The First District Court of Appeal upheld the small award.

Here’s a sampling of other ways in which Florida’s workers’ compensation system has moved away from being for the people:

In 1990, amendments to Chapter 440, Florida’s body of 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 — (440.02(10). (In 1993, the legislature further reduced temporary benefits to a maximum of 104 weeks. However, in a recent 1st DCA decision, Westphal v. City of St. Petersburg/Risk Management & State of Florida, the 104 week limit was struck down and replaced by the 260 week limit.)

The 1990 amendments also cut dramatically the benefits available under the wage loss system. Consider the case of a person left with a 6% permanent impairment — this is the current rating for a single level spinal disc herniation. Pre-1990, the injured worker was eligible for 520 weeks of benefits. This person would have to perform weekly good faith job searches and prove a connection between his injury and wage loss to receive benefits. The 1990 changes reduced eligibility for a 6% impairment to 78 weeks. If this reduction were not drastic enough, in 2003 the wage loss system was eliminated altogether, replaced by one in which an injured worker left with a 6% permanent impairment would receive 12 weeks of impairment benefits. Period. So, in little more than 21 years, wage loss benefits have been reduced by 98%.

Before 1993, Chapter 440 contained explicit language calling for workers’ compensation laws to be liberally construed in favor of injured workers. When in doubt, rule in favor of the worker. This worker friendly mentality was adopted in 1935, when the Florida Legislature first enacted the “Workman’s Compensation Act.” The 1993 Legislature had no use for this attitude and cut it out of the statute.

Also in 1993, the Legislature changed the standard of proof injured workers must meet in order to be compensated for their injuries. The legislature changed the standard from having to show it was more likely than not the accident caused the injuries, to the far more restrictive standard that the industrial accident is the major contributing cause of the injury. The new standard not only demands 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 can be denied all medical and indemnity benefits even though it is the industrial accident which has caused the need for active medical treatment and the inability or reduced ability to work.

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). This may seem reasonable, but it is not. Very frequently, those with preexisting conditions do not require medical care or have difficulty working. Why should these individuals be limited to partial benefits, or none at all, when the preexisting conditions were not creating problems before the accident?

The Florida Legislature also:

  • Requires employees to pay for their own IMEs. See 440.13(5), Fla. Stat. (2006).
  • Prevents injured workers from selecting their own doctors. Insurance companies not only get to select the doctors, but they have the right to meet with the doctors privately. This process is fraught with peril for injured workers. Fearing the loss of future referrals, doctors are unwilling to give pro-patient opinions. Also, some doctors are not qualified to treat the conditions they were selected to treat, and many do not carry malpractice insurance.

All but the most biased and cynical individuals recognize that Florida’s workers’ compensation no longer provides a reasonable remedy to those injured at work. It is time for the system to be overhauled or abolished.
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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.