As a workers compensation lawyer, it is very difficult to explain to an an injured worker and his family why the benefits provided by the law are so inadequate, and why the system is broken.
The article published by Mark Zientz does an excellent job of describing the inadequacy of the law. Please see that article as written below:
I am the attorney who represented Daniel Stahl in his actions to eliminate Florida Statute Section 440.11. That is the section of the compensation law that makes workers’ compensation the “exclusive remedy” for all on-the-job injuries.
No attempt was made to have the entire act scrapped. Workers’ compensation does work but for fewer and fewer injured workers with each set of “reforms.” Since October 1974, every compensation enactment save one was intended to reduce benefits to injured workers. The one benefit that was increased was the death benefit. It was $100,000, and now it is $150,000. Someone please explain to me how the family of an injured worker, maybe a police officer or firefighter with a wife and two young children, can make it on what is about four years of compensation?
The benefits found inadequate by the National Commission on State Workmen’s Compensation laws were found inadequate by a unanimous vote. The commission was required to be formed by the Occupational Safety and Health Act, a bill signed by President Richard Nixon in 1970. The national commission had members from all areas affected; labor, management, judicial, academic and insurance.
The commission’s work was in vain. As soon as the federal threat went away, the states continued to reduce benefits and other protections afforded workers. For example, as part of the OSHA, employers are required to provide safe workplaces. OSHA oversees only private employment.
All government employees, police, firefighters, judges, municipal employees, etc. were protected from unsafe working conditions as part of the bargain struck to trade a worker’s right to sue for workers’ compensation benefits. Industrial safety in Florida existed in the workers’ compensation law from 1936 to 2000. The state had safety rules and a Division of Safety to inspect and prosecute unsafe employers.
All safety rules were repealed in 2000 leaving 50 percent of the Florida workforce with no safety oversight. OSHA said in 2011 that if it were to inspect each covered Florida workplace one time, it would take them 240 years to do so. And the cost of safety was borne all those years by the employers out of a fund to which they contributed. Their costs were reduced when safety went away.
The section of the law that Stahl challenged in addition to providing immunity from suits against employers, even for gross negligence, also provides immunity from suit to all workers’ compensation insurers. Unlike any other form of insurance in Florida, workers’ compensation insurers are allowed to handle claims in a bad faith manner with no recourse against them.
Anyone who seriously believes the system is fair and balanced or, as suggested by Justin Parafinczuk in a Nov. 15 commentary, more favorable to employees, should see me. I have a bridge in Brooklyn for sale. What Stahl hoped to accomplish was fairness. Return the right to sue to employees as an option, a ‘choice of remedy.’ Employees had that right up to 1972. To that end, employers would be encouraged to provide safer workplaces. Suits are only successful if there is employer negligence.
Let’s look at one of the 2003 amendments to the workers’ compensation law that passed in Florida. The definition of accident now reads in part, “An injury or disease caused by exposure to a toxic substance, including but not limited to fungus or mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence that exposure to the specific substance involved at the levels to which the employee was exposed can cause the injury or disease sustained by the employee.”
The Florida appellate courts have ruled this is virtually an impossible burden to overcome. A worker would literally have to go to work each day accompanied by an air quality inspector to be able to produce clear and convincing evidence of the level of any exposure.
Employers and insurance carriers armed with this definition deny all exposure claims. The police in Miami Beach are denied coverage for Zika, the firefighters in Indian River County (over 70 of them) are denied benefits for lung damage due to exposure to black mold in their firehouses, and teachers in Miami-Dade and Broward counties are denied compensation for exposure to mold in public schools.
First responders, like those who worked the Pulse nightclub mass murder are denied compensation for post traumatic stress disorder because our fair workers’ compensation law says to be eligible for psychiatric treatment, the worker must have his own physical injury, which must be the cause of the need for psychiatric treatment. Veterans without physical injury get benefits for PTSD without the need for their own physical injury.
Stahl suffered a career-ending back injury. When he got as well as he could, he could no longer perform the duties of an intensive care unit nurse. He was highly paid before his injury — an injury occasioned by his employer’s reduction in staff causing him to have to lift heavy patients without sufficient help. The fair and balanced scheme in Florida paid him a little over $5,000 in workers’ compensation benefits to cover his loss of wage-earning capacity for the rest of his life.
The Florida Constitution since the 1800s has contained the rights of the people. The right to trial by jury to address injuries caused by another is described as an “inviolate” right. It is the only inviolate right. Yet workers’ compensation laws violate the right to trial by jury. When the benefits provided in exchange for that right are adequate and significant and do not require clear and convincing proof to get them, one might be able to overlook the violation of the right to trial by jury.
That is not the current workers’ compensation scheme in Florida. Supreme Court Justice Fred Lewis wrote in his concurring opinion in the case that held that the 104-week limit on compensation for temporary disability was unconstitutional and a violation to the access to courts right in the Constitution: “I have a full appreciation for the judicial attempts to save the workers’ compensation statute from total disaster. Florida needs a valid workers’ compensation program, but the charade is over. Enough is enough, and Florida workers deserve better.”
Personally, I believe Lewis would not concur with Parafinczuk. I certainly don’t.