Florida Workers Compensation

Florida’s Workers’ Compensation Scheme Unconstitutional


For a few decades now Florida law has slowly eroded away the rights of the injured worker. Clearly, the legislative changes that caused such denial of rights were a result of market forces – the lobbying efforts of big business and the insurance industrial complex.

Florida Worker’s Compensation system was designed to be no-fault self-executing system whereby injured workers would receive medical care and wage-loss payments when injured.  The grand bargain of this no-fault system, was that the injured worker would relinquish their right to seek redress for injuries within the Court system, (as employers were immune from civil lawsuits), in exchange for what was designed to be a relatively painless system.  Injured workers are only entitled to medical care and indemnity (wage loss), but are not entitled to change in lifestyle or pain and suffering as with other tort cases, irrespective of any fault of the employer.

Prior to 1968, when the access to courts provision was adopted, the Legislature had already abolished the common-law tort remedy for injured workers and enacted a workers’ compensation law “as administrative legislation to be simple, expeditious, and inexpensive so that the injured employee, his family, or society generally, would be relieved of the economic stress resulting from work- connected injuries, and place the burden on the industry which caused the injury.” Lee Eng’g & Constr. Co. v. Fellows, 209 So. 2d 454, 456 (Fla. 1968). The workers’ compensation law “abolishes the right to sue one’s employer and substitutes the right to receive benefits under the compensation scheme.” Sasso v. Ram Prop. Mgmt., 452 So. 2d 932, 933 (Fla. 1984).

In Westphal v. City of St. Petersburg, Sc13-1930, (June 9, 2016), the Supreme Court of Florida addressed the narrow issue of whether the current Workers Compensation statute section 440.15(2)(a), Florida Statutes (2009)—part of the state’s workers’ compensation law—which cuts off disability benefits after 104 weeks to a worker who is totally disabled and incapable of working but who has not yet reached maximum medical improvement was constitutional. Simply put, the Court considered whether the 104 weeks of benefits permitted by the statute for those injured workers that are temporarily totally disabled but not permanently disabled (because their condition is expected to improve), are afforded sufficient redress by the workers’ compensation system. Or even more simply put, does 104 weeks of benefits sufficiently compensate the injured worker and provide the worker with a reasonable alternative to balance such workers’ relinquishment of their right to seek damages outside of the workers’ compensation system.

The Westphal Court concluded that 104 weeks was insufficient and provided that the appropriate remedy is revival of a prior version of the Worker’s Compensation Statute namely the 1994 version which allowed 260 weeks of temporary total disability benefits as a reasonable alternative that did afford the injured worker enough temporary total disability benefits to not be deemed a denial of such workers’ Florida Constitutional right of access to Courts.

The Westphal Court went even further by admonishing a system that has clearly gone too far, stating,

Although Westphal has not argued at length that this Court should declare the entire workers’ compensation law unconstitutional, the statutory gap cannot be viewed in isolation from the remainder of the statutory scheme.

The Court continued and detailed how the injured workers benefits have been eroded stating –

Over the years, there has been continuous diminution of benefits and other changes in the law. For example, during the same period of time in which the Legislature reduced the provision of disability benefits, the Legislature also gave employers and insurance carriers the virtually unfettered right to select treating physicians in workers’ compensation cases. See § 440.13(2)(f), Fla. Stat. (2009); see also Butler v. Bay Ctr./Chubb Ins. Co., 947 So. 2d 570, 572-73 (Fla. 1st DCA 2006). Further, the right of the employee and the employer to “opt out” of the workers’ compensation law, and preserve their tort remedies, was repealed. See §§ 440.015, 440.03, Fla. Stat. (2009). Other changes have included a heightened standard that the compensable injury be the “major contributing cause” of a worker’s disability and need for treatment, and a requirement that the injured worker pay a medical copayment after reaching maximum medical improvement. See §§ 440.09(1), 440.13(14)(c), Fla. Stat. (2009).

The current law also allows for apportionment of all medical costs based on a preexisting condition. See § 440.15(5), Fla. Stat. (2009). As Judge Webster has observed, allowing for the apportionment of medical costs means that “injured workers will be less likely to seek medical treatment, making it more likely that they will be unable to return to the workplace.” Staffmark v. Merrell, 43 So. 3d 792, 798 (Fla. 1st DCA 2010) (Webster, J., concurring). This change, Judge Webster commented, significantly reduces the benefits to which many injured workers are entitled, thereby leading to a reasonable conclusion that “the right to benefits has become largely illusory.” Id.

While the Court’s Opinion in Westphal did not explicitly hold the whole workers compensation statute unconstitutional, the dicta that  “[Although Westphal has not argued at length that this Court should declare the entire workers’ compensation law unconstitutional, the statutory gap cannot be viewed in isolation from the remainder of the statutory scheme”, makes such conclusion unavoidable.