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I reported last year on the cases summarized below and all three in one way or another have involved an attack on the constitutionality of all or portions of Florida’s workers’ compensation laws. Since the last report these cases have made their way through the appellate process and we now await the decisions of the Florida Supreme Court for all three. The current status is summarized below.
Florida State Circuit Court Judge Determines the Exclusive
Remedy Provision of the Workers Compensation Act Is Unconstitutional
On August 13, 2014, a circuit civil court judge in Miami-Dade County entered an Order on Amended Motion for Summary Final Judgment in the case ofFlorida Workers’ Advocates & Elsa Padgett v. State of Florida. Procedural issues resulted in what was essentially an unopposed lawsuit filed by the injured worker’s attorney. The order declared Florida’s workers’ compensation law in its entirety (Chapter 440, Florida Statutes) to be unconstitutional so long as §440.11 remains a constituent part of the law as a whole.
Plaintiffs’ argument in Padgett is neatly distilled by their own words: “Your movant's main complaint is that if an injured worker, after reaching maximum medical improvement has a loss of wage earning capacity that is not total in character it will go uncompensated under the 2003 Florida Act. The injured worker would have had to wait until he reached maximum medical improvement and tested the labor market before he knew that he not only had the right to be compensated for his disability but that he would not get any benefit for his loss in the workers' compensation scheme. Padgett, FWA and WILG pray for a judgment holding the exclusive remedy provision ins. 440.11 Fla. Stat. 2003 invalid and unconstitutional so that all injured workers in Florida may have the option of either a tort or a workers' compensation recovery at the outset.”
Unimpeded by the absence of a defense, the Padgett trial court concluded that the legislative changes to Chapter 440 that began a shortly after Florida’s 1968 Constitution was enacted and continued sporadically through the 2009 legislative session have removed rights without offering equivalent alternatives thereby violating the mandate of Florida’s 1968 state Constitution. This resulted in the court’s declaration that:
“As a matter of law, Chapter 440, effective October 1, 2003 is facially unconstitutional as long as it contains §440.11 as an exclusive replacement remedy. I find that the Florida Workers’ Compensation Act, as amended effective October 1, 2003, does not provide a reasonable alternative remedy to the tort remedy it supplanted. It therefore cannot be the exclusive remedy. §440.11 is constitutionally infirm and invalid. IT IS ORDERED AND ADJUDGED, that Declaratory Relief is GRANTED. Judgment is entered for Petitioners/Intervenors. §440.11 Fla. Stat. 2003 is unlawful, invalid and unconstitutional.”
With no defense to better inform the trial court judge, the outcome was probably inevitable.
Normally an appeal of a case involving workers’ compensation benefits would go to Florida’s First District Court of Appeal as it is the intermediate appellate court to which all appeals from decisions of a judge of compensation claims must go for review. However, because this case was not specifically about particular workers’ compensation benefits but rather an effort to wage an attack on the constitutionality of legislative changes to Chapter 440 (including attorney’s fees payable to claimant lawyers in workers’ compensation claims), the appeal from the trial court was to Florida’s Third District Court of Appeal instead. The case number is 3D14-2062. The appeal has been fully briefed as of March 13, 2015 and oral argument was held on March 30, 2015. Participation in the appeal was, as would be expected, considerably more populated than in the trial court with numerous amicus appearing on behalf of one side or the other. We anticipate a decision within the next six months.
Rob Grace, however, has twice prevailed in trial court on similar claims, including one brought by the same plaintiff attorney in the same jurisdiction asPadgett was brought. Rob secured a dismissal of the claims both times and his victory inDigrius v. Anchorage Resort & Yacht Club (16th Judicial Circuit Case No. CAP13998 / 442013CA000998A001PK) is now on appeal with the very same Third District Court of Appeal that has thePadgett case. The appeal was filed March 31, 2015 and thus remains in infancy stages. We expect that various amici will appear for both sides and that resolution will be later this year or early next year.
Employers Be Careful About Denials Based on
Course and Scope, Employment Relationship or Inconsistent Positions
The attacks on Florida’s workers’ compensation exclusive remedy provision are not limited to cases likePadgett where the objective is a wholesale destruction of Chapter 440. As with most if not all workers’ compensation systems, Florida law requires that the accident and resulting injury(ies) arise out of the course and scope of employment for Chapter 440 to apply. When the employer/carrier responds to a claim with the assertion that the accident and/or injury is not connected to the course and scope or they assert denials that are inherently at odds (i.e. no course and scope coupled with defenses based on employment), they can be relatively certain that a civil suit will follow and that an estoppel analysis will be undertaken by the trial, and most likely later the appellate, court.
Picon v. Gallagher Bassett Services, Inc., 548 Fed.Apps. 561 (11th Cir. 2013) does an excellent job of reviewing eight Florida appellate court cases in which the exclusive remedy was involved. Of the eight cases, six were decided favorably to the injured employee and two favorably to the employer/carrier. The six cases that favored the injured employees involved assertions by the employer/carriers that no accident happened in the “course and scope of employment” either standing alone or combined with other defenses inconsistent with the course and scope of employment denial. See, e.g.,Elliott v. Dugger, 542 So.2d 392 (Fla. 1st DCA 1989); Byerly v. Citrus Publishing, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999);Schroeder v. Peoplease Corp., 18 So.3d 1165 (Fla. 1st DCA 2009); Coastal Masonry v. Gutierrez, 30 So.3d 545 (Fla. 3d DCA 2010);Mena v. J.I.L. Construction Group Corp., 79 So.3d 219 (Fla. 4th DCA 2012);Ocean Reef Club, Inc. v. Wilczewski, 99 So.3d 1 (Fla. 3d DCA 2012)(for case distinguishingOcean Reef see VMS, Inc. v. Alfonso, 147 So.3d 1071 (Fla. 3d DCA 2014)).
The two cases that favored the employer/carriers did not have such an assertion. SeeTractor Supply Co. v. Kent, 966 So.2d 978 (Fla. 5th DCA 2007); Coca-Cola Enterprises, Inc. v. Montiel, 985 So.2d 19 (Fla. 2d DCA 2008).
Thus, it is fair to say that if/when an employer/carrier chooses to assert that the alleged accident was not connected to the “course and scope” of the employee’s employment there will likely be a tort suit following and the employer/carrier is equally likely to find themselves losing any motion for summary judgment based on the workers’ compensation exclusive remedy principle. Instead, a judge or jury will make the decision after completion of a full blown trial because, as thePicon court noted, “[w]hen the record reveals multiple possible explanations for the denial, or the language in the denial document is ambiguous and gives rise to more than one interpretation, issues of material fact exist over whether the employer’s position is inconsistent so as to indicate possible estoppel.”
Landmark Attorney Fee Case Makes its way to Florida Supreme Court
Marvin Castellanos vs. Next Door Company, Et Al.
Florida Supreme Court Case No. SC13-2082
Lower Tribunal Case Citation 124 So. 3d 392 (Fla. 1st DCA 2013)
This is the case which the Florida Supreme Court has for review on discretionary jurisdiction in which the 2009 attorney’s fee statute (Florida Statute §440.34) was declared constitutional by Florida’s First District Court of Appeal but certified to involve a question of great public importance. The appeal was filed in October, 2013, briefed by the parties and various amicus, and oral argument conducted on November 5, 2014. Since that time, notices of supplemental authority have been filed with the Florida Supreme Court, mostly providing additional one paragraph decisions from Florida’s First District Court of Appeal passing along similar cases with essentially identical opinions. The approach in this case, as in others like it, is a broad deployment of various theories such as violations of constitutional rights of separation of powers, right to be rewarded for industry, free speech, free association, due process, and equal protection. It also makes the argument akin to what was deployed in theFlorida Workers’ Advocates case summarized above, i.e. the cumulative effect of changes has stripped Chapter 440 of benefits in a way that no longer provides a reasonable alternative to common law negligence remedies. Our firm handled the appeal on behalf of the Employer/Carrier in a similar case which has been stayed by the Florida Supreme Court, pending resolution ofCastellanos, after being affirmed per curiam by the First District Court of Appeal.
With the appellate process having ended six months ago, other than the supplemental authority filings, we expect something to happen relatively soon. There has been some discussion of convening a special legislative session aimed at trying to get the various parties to agree to a solution that would avoid the possibility of a constitutional ruling on §440.34. As of this update, this possible effort remains ill-defined and uncertain. If there is no legislative intervention, then the Court will ultimately issue its decision. What that decision will be and what, if anything, the Court might do to cure any perceived constitutional infirmity is anyone’s guess. It is most unlikely that the entire statute would be scrapped, and more likely that the Court might roll back to the latest version of the statute that the Court finds to not be problematic, to simply engraft Florida’s seminal case on reasonable attorney’s fees on to the current statute (Lee Engineering & Const. Co. v. Fellows, 209 So. 2d 454 (Fla. 1968)), or to fashion another remedy which does not visit chaos upon the system. I represented the E/C/SA one of the many companion cases toCastellanos.
First District First Strikes, Then On Reconsideration Upholds, Florida’s
104 Week Limit On Temporary Benefits – Now Before Florida Supreme Court
Bradley Westphal v. City of St. Petersburg, Etc., Et Al.
Florida Supreme Court Case No. SC13-1930 & 1976
Lower Tribunal Case Citation 122 So. 3d 440 (Fla. 1st DCA 2013)
Florida’s workers’ compensation law provides for wage loss benefits comprised of (1) temporary partial disability benefits (TPD) payable when the employee cannot work regular duty but can work modified duty; (2) temporary total disability benefits (TTD) when the employee cannot work at all but is expected to be able to return to work; (3) permanent impairment benefits which were intended to provide monetary compensation for a permanent impairment of working skills; and (4) permanent total disability benefits (PTD) payable when an employee is unable to work at least sedentary duty within a 50 mile radius of his or her home. See Florida Statute §440.15. Benefits #1 and #2 are available onlybefore a claimant is at overall MMI and the claimant cannot get more than 104 weeks of these benefits combined. Benefits #3 and #4 are available onlyafter a claimant is at overall MMI.
The same judge of compensation claims assigned to Mr. Westphal’s claim had previously been assigned a very similar claim and in the previous claim had concluded that “that the Legislature did not intend to leave a claimant such as Mr. Hadley out in the cold with no basis for indemnity benefits when that worker is totally disabled for more than 104 weeks.” He therefore declared that claimant to be entitled to permanent total disability benefits even though the claimant was not at MMI. This resulted in an appeal and ultimately an opinion from the First District Court of Appeal en banc reversing the judge of compensation claims and ruling that the benefits gap was not an infirmity. SeeMatrix Employee Leasing, Inc. v. Hadley, 78 So. 3d 621 (Fla. 1st DCA 2011).
Faced with the same issue in Mr. Westphal’s case the judge of compensation claims followed the mandate ofMatrix Leasing and denied PTD benefits to Mr. Westphal. From this decision Mr. Westphal’s case moved to the First District Court of Appeal. The First District initially issued an opinion that was consistent withMatrix Leasing. The Court then reconvened en banc, withdrew the previous opinion, receded fromMatrix Leasing, and ruled that “a worker who is totally disabled as a result of a workplace accident and remains totally disabled by the end of his or her eligibility for temporary total disability benefits is deemed to be at maximum medical improvement by operation of law and is therefore eligible to assert a claim for permanent and total disability benefits.” In so doing, theWestphal court said it was “unnecessary to consider the claimant’s argument that the statute, as we previously construed it inHadley, is unconstitutional as a denial of the right of access to the courts.”
The case is now with the Florida Supreme Court. It was fully briefed as of March 26, 2014 and oral argument was held June 5, 2014. Given the time the case has been pending before the Court post-oral argument, it would seem reasonable to expect a decision sooner rather than later.
David A. Lamont, Esquire
Workers’ Compensation Partner, The Bleakley Bavol Law Firm