Will Jeb Bush/Right-Wing Extremism be the Straw that Breaks the Back of Florida’s Workers’ Compensation System?

scales of justice.jpgInjured workers have experienced a steady erosion of their rights under Florida’s workers’ compensation system since its inception in 1935. Some periods have seen greater losses than others. None, however, were as ugly as the Jeb Bush years, when he served as the 43rd Governor of Florida from 1999 to 2007, along with a Republican-controlled House and Senate. Together, they happily gutted the system.

After years of injustice and suffering, the chickens may be coming home to roost.

Before Florida had a workers’ compensation system, in order for an injured worker to receive lost wages and medical benefits, he or she was burdened with proving employer-fault caused the accident. This was a time-consuming and always difficult burden, made more tenuous by legal principles that barred any recovery if the worker – contributory fault – or a fellow servant were even slightly at fault, or the employee accepted the dangers of hazardous employment. This system, a form of common law negligence, saw most injured workers go without ever receiving benefits. The system also proved unwieldy to employers, who were regularly tied up in lawsuits and could not reasonably predict their exposure.

Workers compensation was the solution. It was conceived as a no-fault, self-executing system, one in which injured workers received well-defined benefits in a timely manner with the goal of returning to gainful employment. Employers benefited by being able to predict their expenses with greater certainty and avoid catastrophic losses from individual cases.

Both sides had to give up things to gain the advantages offered by the system, a classic example of Quid pro quo.

In its original manifestation, the gains and losses experienced by each side were fairly balanced. Unfortunately, business interests wasted little time trying to limit the rights and benefits available to injured workers under the original Act. Legislators beholden to moneyed interests annually supported employer/insurance carrier-friendly legislation. The success or failure of proposed workers’ compensation legislation varied based on the political climate and makeup of the executive and legislative branches of Florida government at the moment.

The years since original enactment saw a steady, yet uneven erosion of workers’ rights. The quid pro quo, while not as evenly balanced as when first conceived, remained intact enough to be left alone by the courts. That quid pro quo balance shifted dramatically after Jeb Bush became governor. From the start of his reign, Jeb and his right-wing compatriots went after the rights of injured workers with a vengeance. From compensability, to lost wages and medical benefits, each legislative session saw quid pro quo losses to Florida’s workforce. 2002 was the watershed year for system gutting. Medical and indemnity benefits were dramatically reduced, Claimant’s attorneys were neutered in their ability to provide full and adequate legal representation.

Excess was celebrated. Champagne corks were popping. Jeb Bush was toasted in every insurance company boardroom in Florida.

After twelve long and painful years for Florida’s injured workers, relief may be in sight. Of immediate interest is a case currently before the Florida Supreme Court, Castellanos v. Next Door Company, et al., which involves Claimant’s attorney’s fees. Constrained by the statutory formula set forth in section 440.34(1), Florida Statutes, the judge of compensation claims awarded claimant’s counsel an attorney’s fee of only $164.54 for 107.2 hours of legal work reasonably necessary to secure the claimant’s workers’ compensation benefits. Castellanos v. Next Door Company/Amerisure Insurance Company. The First District Court of Appeal affirmed the JCC, but certified the following question to the Supreme Court:

WHETHER THE AWARD OF ATTORNEY’S FEES IN THIS CASE IS ADEQUATE, AND CONSISTENT WITH THE ACCESS TO COURTS, DUE PROCESS, EQUAL PROTECTION, AND OTHER REQUIREMENTS OF THE FLORIDA AND FEDERAL CONSTITUTIONS.

Needless to say, no lawyer can afford to represent an injured worker at $1.53 per hour. It is why Jeb Bush & Co. enacted the law. Sneaky. Sneaky. The outcome will shape the future of Florida’s workers’ compensation system … unless a recent development eclipses it.

On August 13, 2014, Miami-Dade County Circuit Court Judge Jorge E. Cueto entered an order declaring Chapter 440, the body of laws forming Florida’s workers’ compensation system, unconstitutional, in derivation of the United States and Florida Constitutions. In Judge Cueto’s view, supported by unrefuted evidence and case law, the quid pro quo structure on which the entire system was founded has become illusory. No longer do Florida’s workers have a reasonable alternative remedy to the common law personal injury system.

The order will be reviewed by the Third DCA and Florida Supreme Court. If affirmed by the Supreme Court, Florida will be left without a workers’ compensation system. The Florida Legislature will have to devise a new one. In the meantime, havoc will reign.

So be it. Serves the greedy bastards right.

Good job, Jeb.

Read this link for another example of Bush extremism gone wrong: Power to the People! Florida’s Arbitrary and Capricious Medical Malpractice Damage Caps Declared Unconstitutional

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