Florida’s Workers’ Compensation System Unconstitutional, So Says 11th Circuit Court Judge Jorge Cueto

moses.jpgIn 1935, Florida first enacted a workers’ compensation system for the state’s employers and employees. The idea was to provide a greater degree of fairness and certainty for each. The primary advantage for employers was the immunity from most personal injury lawsuits, making it easier to anticipate expenses, while employees would receive benefits without first having to prove negligence against the employer. It was a model patterned on similar systems adopted in other states. Both sides gained, both sides lost, but the overall outcome was positive.

That is, until greed began to creep into the system. It didn’t take long.

Through legislative might, business interests soon began to whittle away at workers’ rights and benefits. From time to time, the courts slowed and reversed the erosion, but workers could do little in the long run to resist the rising tide of selfishness and greed.

Not surprisingly, the high mark of this tide of selfishness and greed came during Jeb Bush’s reign as Florida’s governor. Taking a page from his big brother George’s system in Texas, Jeb spearheaded efforts to gut Florida’s workers’ compensation system. 2002’s legislative session broke the system. Benefits were slashed and injured workers were denied the right to effective legal counsel.

Jeb received champagne toasts in boardrooms from Key West to northwest Florida. Mission Accomplished!

The years since have been ugly for Florida’s injured workers and their families. Examples:

  • Employers and their workers’ compensation insurance carriers not only get to select each and every doctor, they are allowed to engage in ex-parte communications with the doctors. The doctors know what is expected of them to get repeat business, and the E/C’s use the same doctors again and again. F.S. 440.13.
  • The legal standards for proving accident to injury causation are onerous.
  • Benefits can be denied altogether in many instances involving preexisting conditions.
  • Establishing permanent total disability (PTD) is virtually impossible. F.S. 440.15. The qualifying standards are exceedingly difficult to meet and workers’ compensation doctors refuse to give the necessary medical opinions for seriously injured workers to have a fighting chance to meet the standards. Pre-2002, it used to be more difficult to qualify for Social Security Disability (SSD) than for workers’ compensation PTD. That is no longer the case. The PTD standard is also more demanding than some other standards, such as the one used for government workers under Florida’s Retirement System and those contained in various private disability insurance policies
  • Employer/Carriers can pay their defense attorneys however much they like, while injured workers are prohibited from contracting with a lawyer beyond a minimal schedule that sometimes limits the hourly fee to less than $2.00, hence the inability to obtain adequate legal services. That’s right, less than $2.00 per hour. See these case examples: Emma Murray v. Mariner Health; and Castellanos v. Next Door Company.

It is not just claimant’s lawyers who recognize the injustice of the system. I’ve had countless off-the-record conversations with adjusters, defense attorneys, and workers’ compensation judges who all agree that the system is grossly unjust.

It’s obvious. It’s obscene. It’s Jeb Bush.

At long last, relief may be in sight.

In the Castellanos case, the Florida Supreme Court has accepted jurisdiction to decide the constitutionality of the attorney fee provisions contained in Section 440.34 of the workers’ compensation law. (The constitutional questions were not addressed in the Emma Murray case because they didn’t have to be. It is jurisprudential policy to resolve cases when possible on grounds other than constitutional grounds. The Court does not appear to have that option in Castellanos.) The briefs are in and oral arguments will be held soon, with a decision within 6-12 months. Smart money is on 440.34 being declared unconstitutional. Already this year the S. Ct., in a scathing opinion, found a Jeb Bush manufactured law unconstitutional. Read this blog: Power to the People! Florida’s Arbitrary and Capricious Medical Malpractice Damage Caps Declared Unconstitutional.

On August 13, 2014, Miami-Dade County Circuit Court Judge Jorge E. Cueto declared Chapter 440 unconstitutional. In Judge Cueto’s view, supported by unrefuted evidence and case law, the quid pro quo predicate on which the entire system is founded, has become illusory. Injured workers no longer get the benefit of their bargain, while employers get more.

Judge Cueto’s ruling has been appealed by Florida’s Attorney General. This puts his decision on track to be addressed by the Third DCA and the Florida Supreme Court. While the present workers’ compensation system should be flushed down the toilet, Florida needs a workers’ compensation system. If Florida lawmakers had proper regard for injured workers, it would get to work now to create a fair and just system. With input from all sides, not just the business community (Jeb’s way), something fair and just could be devised before the present system is declared unconstitutional.

Change is long overdue. Sadly, the forces of evil control most of the levers of power in this state, making change a long and arduous process. The Florida Supreme Court is the last bastion of hope for the people.

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