Injured employees cheated by workers’ comp law, Miami-Dade judge says

Injured employees cheated by workers’ comp law, Miami-Dade judge says 

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A Miami judge declared Florida’s long-controversial workers’ compensation law unconstitutional Wednesday, saying successive state legislatures had so diminished medical care and wage-loss benefits for injured workers that the statute now violates employees’ “fundamental” rights.

In a case involving a Miami-Dade County government office worker, Circuit Judge Jorge E. Cueto said the nearly 80-year-old law forces injured workers into a legal system that is so flawed it does not provide adequate medical care or dollars to replace lost wages. Under Florida law, workers have no choice but to seek benefits under the workers’ comp system. Except under rare circumstances, they cannot sue their employers.

“The benefits in the act have been so decimated,” Cueto wrote, “that it no longer provides a reasonable alternative” to filing suit in civil court.

Cueto’s ruling comes at a pivotal time for mostly blue-collar and agricultural workers in Florida: Lawmakers and business leaders say high workers’ compensation insurance premiums have threatened to derail the state’s economic growth, while worker advocates say the state has allowed widespread insurance fraud to fester while counteracting the high premiums by punishing workers.

The controversy, which has simmered for years, is becoming increasingly prominent as worker rights lawyers ask judges, including those on the state’s highest court, to strike down the law once and for all.

Wednesday’s ruling involves an account clerk who tripped in a walkway on Jan. 27, 2012, when a co-worker left boxes on the floor. Elsa Padgett, already at retirement age, fell on her hip, but sustained the most serious damage to her shoulder, records say. Following shoulder replacement surgery, Padgett remained in significant pain and was eventually forced to retire.

“The free ride for injuring workers on the job is over,” said one of Padgett’s attorneys, Mark Zientz of Miami. “The workers’ comp law has been eviscerated and now we have a judge who essentially admitted that.”

If it is appealed, Cueto’s order will join at least two other cases that challenge the constitutionality of at least a part of Florida’s workers’ compensation statute.

The state Supreme Court already is considering an appeal from a St. Petersburg firefighter, Bradley Westphal, who suffered severe and disabling back injuries in 2009 and was left with no income after his temporary wage-loss benefits expired. He could not seek work upon the advice of doctors picked by his insurance carrier, and the carrier would not provide any benefits to support his family until doctors declared he was no longer capable of improving medically.

“This system of redress does not comport with any notion of natural justice, and its result is repugnant to fundamental fairness because it relegates a severely injured worker to a legal twilight zone of economic and familial ruin,” a three-judge Tallahassee appeals court panel wrote in a February 2013 opinion that struck down the statute. The full court later restored the law, and the case is now before the state’s highest court.

In 1968, lawmakers amended state law to make the workers’ comp system the “exclusive” legal remedy when an employee is injured on the job. At the time, the comp law was far more generous, and required employers to pay all medical bills and significantly better benefits to workers who had lost all or part of their ability to earn a living. But in 1990, 1993 and 2003 — among other years — the Legislature chipped away large chunks of injured workers’ benefits.

Lawmakers said the reductions were necessary to make Florida competitive with other states in order to retain or lure businesses. Both in 1993 and a decade later, lawmakers slashed benefits after industry complained that workers’ compensation insurance carriers were charging among the highest premiums in the country. In 2001, for example, only California insurers were charging higher premiums to insure worker safety.

In a court pleading dated Aug. 4, the Florida Attorney General’s Office said lawmakers had a “compelling need [to] reform” the state’s workers’ comp system as “Florida suffered from some of the highest insurance costs in the country, and premiums only continued to increase.”

Since the 2003 revisions to the law, premiums have declined by 56 percent, state records show.

Workers’ compensation laws always have limited what employees may receive in medical care or reimbursement for lost wages, the Attorney General’s Office wrote. In exchange, workers don’t have to prove in court that they were injured due to the fault of their bosses.

Though Attorney General Pam Bondi opted not to intervene directly in the case before Cueto, her office defended the statute, saying that “while some individual workers might be worse off with workers’ compensation in a particular instance, others benefit greatly.”

George Kagan, a West Palm Beach attorney who represents dozens of insurers or self-insured businesses, said lawyers for workers have challenged the statute many times in recent years to circumvent the authority of state lawmakers, who have been generally unreceptive to the complaints of workers. “This is a kind of finger on the scale,” Kagan said. “This is really not the way to do things.”

As a practical matter, Kagan said, Cueto’s ruling won’t immediately reverberate outside of Miami-Dade’s judicial circuit, where injured workers might — and probably will — appeal if they receive an adverse ruling from a judge in a workers’ compensation claims case.

The current statute, Kagan added, is a flawed system of justice — but one that protects the majority of injured workers most of the time. “We do not seek perfect justice in each case, he said. “We know that some workers are very under-compensated, but the vast majority are adequately compensated, and it won’t be years waiting for a jury to decide if there is a perfect remedy.”

In his order though, Cueto said lawmakers had broken their end of the “trade” with workers — workers give up their right to sue in civil court when they are injured, but get a fast, efficient and no-fault justice system in its place — when they carved up the safety net of benefits that existed in 1968, when the bargain was reached.

“The purpose of a workers’ compensation act is not for it to be used as a weapon in an economic civil war,” Cueto wrote. “Its purpose is to provide adequate compensation for on-the-job injuries in place” of a worker’s ability to sue in civil court.

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If you, a friend or a family member find themselves in a situation such as this, please call the Law Office of Scott A. Ferris, P.A. at 305 670-3330 right away. Scott A. Ferris, Esq. is a licensed civil law attorney who has been practicing law since 1987. He is available whenever you need him to pursue your rights. Please learn about our firm at