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Unless you have been cryogenically frozen in carbonite for the past 3 months, you have probably heard about the recent opinion released by Miami-Dade Circuit Judge Jorge Cueto which declared the Florida Exclusivity Doctrine unconstitutional. His 22 page opinion (Padgett v. State of Florida No. 11-13661 CA 25) attacked the erosion of the Florida workers’ compensation system as a whole and asserted that the value of the benefits available to claimants did not justify thequid pro quo tort liability protections afforded employers. The purpose of this article is to provide a general outline of what lead to Judge Cueto’s opinion and to consider its effect on a national scale.
Accident and Injury
The employee, Elsa Padgett, was an account clerk who tripped over some boxes that were left on the floor by a co-worker. She reportedly fell on her hip and sustained significant injury to her shoulder. After undergoing replacement surgery for her shoulder, she claimed that the resulting pain forced her to retire.
Padgett opted to file a negligence lawsuit against her employer. In its Answer, the employer asserted the Exclusivity Doctrine (§440.11, Fla. Stat. 2003) as an affirmative defense. Padgett then amended her Complaint to add a Count for Declaratory Relief asking the Court to declare the Florida Exclusivity Doctrine in violation of the U.S. and the Florida Constitutions. Once Florida Worker’ Advocates (FWA) and Workers Injury Law & Advocacy Group (WILG) joined the party as interveners, the employer strategically withdrew its Exclusivity Doctrine defense and the negligence action was severed from the Declaratory Relief portion of the lawsuit. The Florida Attorney General opted not to intervene in order to defend the constitutionality or validity of the Exclusivity Doctrine. However, she did file a responsive pleading pointing out various procedural and substantive defects in the case. FWA and WILG next sought a summary judgment but Judge Cueto denied the motion on the grounds that there was no longer a present justiciable controversy. Padgett then intervened in the Declaratory Relief action which presented a controversy upon which Judge Cueto could rule (Florida empowers a judge to decide an issue if that issue is capable of repetition in the future and might evade review).
Erosion of Benefits
In his written opinion, Judge Cueto noted that the system of workers’ compensation is supposed to be the result of a compromise wherein employees receive immediate access to indemnity and medical benefits through a no-fault insurance system and employers are insulated, with limited exceptions, from tort liability. He then pointed out that the benefits afforded employees had been greatly reduced as the result of the 2003 amendments that eliminated permanent partial disability benefits, put a 5 year cap on permanent and total disability benefits, capped said benefits at age 75, and apportioned medical care by requiring contribution in the form of co-pays by the employee after reaching maximum medical improvement. Judge Cueto concluded that the Florida workers’ compensation system no longer provided adequate indemnity and medical benefits for injured workers and that preventing them from pursuing a tort remedy was a violation of due process.
Judge Cueto ruled that the Florida Exclusivity Doctrine was unconstitutional on August 13, 2014. One week later, he denied a motion for rehearing filed by the Attorney General’s office.
The Attorney General appealed Judge Cueto’s ruling to the Third District Court of Appeal on August 26, 2014. The case is now calledFlorida v. Florida Workers’ Advocates. Should the District Court of Appeal decide to rule, its decision could become the law for the Third District, and possibly followed by the other Florida districts. The Third District Court declined to certify the case directly to the Supreme Court and the District Court of Appeal also denied that request. The Attorney General’s initial Brief is due on or before December 4, 2014.
According to Casey Gilson attorney Rayford Taylor, who practices in Georgia and Florida, there is a legitimate chance that Judge Cueto’s ruling will be treated merely as an advisory opinion rather than a declaratory judgment. None of the Interveners established that they had been injured or prejudiced by the Exclusivity Doctrine, or by the provisions they cited as a basis for a challenge to the statute. The issue may need to be addressed again the next time an employee sues an employer in tort and the employer asserts the Exclusivity Doctrine as a defense.
Other Constitutional Attacks in Florida
The Padgett case is not the first time this particular claimant’s attorney has taken the offensive against the Florida Workers’ Compensation Act on constitutional grounds. According to attorney Rob Grace, who practices with the Bleakley Bavol firm in Florida, this same attorney has filed a number of these suits around the state during the last five years. Padgett just happened to be one where a judge accepted his argument. The attorney filed a similar suit in Broward County which was dismissed approximately five years ago. At the same time, the attorney had another comparable suit (Stahl v. Tenet Health Systems, Inc.) in Dade County which he lost at the Third District Court of Appeals level.
The Florida Supreme Court is currently considering a couple of other cases involving constitutional attacks on the state’s workers’ compensation system. In the case ofWestphal v. City of St. Petersburg, The Court has before it an appeal from a firefighter who was injured and left with no income after his temporary indemnity benefits expired. His authorized doctors took him out of work and he was not eligible for additional benefits until the doctors placed him at maximum medical improvement. The firefighter is challenging the constitutionality of the statutory limit on the payment of temporary total disability benefits.
In the case of Castellanos v. Next Door Company, the Florida Supreme Court is considering an appeal challenging the constitutionality of the statute that provides for the calculation of attorneys’ fees in workers’ compensation matters, based solely on a statutory percentage of benefits achieved by the attorney.
Although it has not yet risen to the level of a national trend, several other states have seen constitutional attacks on certain aspects of their respective workers’ compensation systems.
In California, the constitutionality of the workers’ compensation lien system was recently raised in the case ofAngelotti Chiropractic v. Baker.
Approximately 20 years ago, the entire Texas Workers’ Compensation Act withstood a constitutional challenge and, more recently, the Texas Office of Injured Employees Counsel released a few reports last year that pointed out the inequities of the alternative dispute resolution program.
In Tennessee, there have been some unsuccessful constitutional attacks on other parts of the workers’ compensation statute (i.e. multipliers and the Medical Impairment Registry program) but not the Exclusivity Doctrine.
Approximately 6 years ago In Alabama, an employee filed a motion seeking to have the $220 cap for permanent partial benefits deemed unconstitutional. The judge denied the motion but stated in his Order that the cap set 23 years prior basically guarantees poverty for claimants and their families. The judge further stated that "the trial courts see these workers leave our courtrooms week after week, without the ability to support themselves or their families." The judge deemed the cap unfair but not unconstitutional and called upon the Alabama Legislature to make the change. Several legislative attempts at increasing the cap have been made since that time but all have been unsuccessful.
Moral of the Story
According to Rob Grace, “my prediction is that, in the end, nothing will come ofPadgett. Maybe I will be proven wrong but I find it difficult to believe that our supreme court is going to basically throw out the entire workers’ compensation statute.” Rayford Taylor agrees with Grace. According to Taylor, “I do not see how mere allegations that certain provisions are different from what they once were invalidates the tort immunity of an employer whose only offense was complying with the statute.” Even if Grace and Taylor are correct, there remain lessons that can be learned from the Padgett opinion and other such cases. The more you reduce benefits to employees, the more susceptible to constitutional attacks your workers’ compensation system becomes. In his now already infamous opinion, Judge Cueto referred to a First District Court of Appeal comment on the “minimum” requirements necessary for a workers’ compensation system to pass constitutional muster. InBradley v. Hurricane Restaurant (an 18 year old case that interestingly involved both attorneys Taylor and Grace), the Court stated that workers’ compensation law continues to be a “reasonable alternative to tort litigation” when it “provides injured workers with full medical care and benefits for disability (loss of wage earning capacity) and permanent impairment regardless of fault, without the delay and uncertainty of tort litigation.” In Judge Cueto’s opinion, the Florida system does not meet this minimum. Does yours?
About the Author
This article was written by Michael I. Fish, Esq. of Fish Nelson & Holden LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson & Holden is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author email@example.com or any firm member at 205-332-1448.