The Perfect Storm — Drastic Changes Likely in Florida’s Workers’ Compensation System

Since at least 2002, when Jeb Bush and a super-majority of Republicans passed legislation eliminating important workers’ rights, Florida’s workers’ compensation system has been unfair and unbalanced. One circuit court judge has declared it unconstitutional — Florida’s Workers’ Compensation System Unconstitutional, So Says 11th Circuit Court Judge Jorge Cueto.

The time is approaching when the Florida Supreme Court may agree with Judge Cueto.

Not surprisingly, the good Judge Cueto’s ruling has been appealed by Florida Attorney General Pam BiondiThere She Goes Again — Pam Bondi, Florida’s Attorney General, Appeals Workers’ Compensation Ruling. It will likely be years before this case works it way to resolution through the appellate process. If the Republican-dominated Florida Legislature were smart, instead of so cravenly selfish and greedy, it would replace the current system with a fair and balanced workers’ compensation system to avoid the Armageddon surely to follow if the system is declared unconstitutional. Good luck with that.

In the meantime, two other cases that will dramatically change the workers’ compensation landscape for years to come are presently before the Florida Supreme Court. In my view, the most significant is Marvin Castellanos v. Next Door Company, et al. In a nutshell, Castellanos involves a challenge to Jeb Bush’s formula for preventing injured workers from being able to hire a lawyer. The question before the Florida Supreme Court in Castellanos is whether the formula devised by Bush, that limited a claimant’s counsel to 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, is constitutional. Here’s the certified question before the 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.

If recent happenings are any indication, the Supreme Court is likely to answer with a resounding NO!

The current majority of Florida’s Supreme Court justices are fair and reasonable human beings. While Florida Supreme Court justices are appointed, every six years they face a retention vote. No justice has ever failed to be retained and, until 2012, no political party has ever actively sought the ouster of a justice through the retention process. In 2012, the Republican Party came off the sideline to seek the ouster of the three justices (Parienti, Lewis, and Quince), each a moderate, up for retention vote. Why? The right-wing disdains moderation. Thankfully, each jurist survived the right-wing onslaught by a large majority.

While these justices and the rest of the reasonable moderate majority are above petty politics, the misguided retention vote fiasco together with years of right-wing overreach and abuse have gotten the court to focus its attention on righting wrongs.

In my opinion, the most telling indication of the likely outcome in Castellanos, comes from the Supreme Court’s March 13, 2014 ruling in McCall v. United States of America. The court declared unconstitutional Florida’s arbitrary caps on non-economic damages resulting from medical malpractice related wrongful death. It determined that the information provided to the Florida Legislature by then-Governor Bush’s Select Task Force on Healthcare Professional Liability Insurance (Task Force Report) (Jan. 29, 2003) to warrant the caps was bogus. In other words, Bush’s people cooked the books. (See this blog: Power to the People! Florida’s Arbitrary and Capricious Medical Malpractice Damage Caps Declared Unconstitutional). Think Weapons of Mass Destruction.

In Florida, the pendulum has swung far too far to the right. Real everyday hardworking people have been hurt, sometimes decimated, by Republican excess. Now is the time to correct those excesses.

The Perfect Storm is upon us.
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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.

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