Thursday, August 14, 2014
Judge Jorge E. Cueto, Circuit Judge for the Eleventh Judicial Circuit in Florida, has issued an order declaring that Florida's workers' compensation statute is facially unconstitutional. Judge Cueto ruled that workers' compensation statutory benefits have been so eroded by Florida's legislature, "that it no longer provides a reasonable alternative" to civil suits. The story in the Miami Herald is here. Judge Cueto found that the Florida workers' compensation statute violates both the U.S. Constitution and the Florida Constitution.
Certain provisions of Florida's workers' compensation statute have been challenged as unconstitutional in other cases. The Florida Supreme Court is currently considering a case involving the constitutionality of a potential gap between the 104-week cutoff for temporary benefits and the ability to recover total permanent disability benefits. Although a panel of Florida's First District Court of Appeals found this gap to be a constitutional violation, the court sitting en banc avoided the constitutional question by interpreting the Workers' Compensation statute in a manner that avoids this benefits gap.
But Judge Cueto's opinion is much broader. It holds that the entire "grand bargain" of workers' compensation as an exclusive remedy for workplace injuries -- given the benefits limitations found in the current version of Florida's workers' compensation statute -- is an unconstitutional deprivation of due process. Judge Cueto found that the statute "became unconstitutional as an exclusive remedy in stages," referencing a number of benefits limitations and erosions over the years (enacted for the purpose of reducing premiums and competing for industry). In particular, Judge Cueto noted the repeal of an opt-out provision, the effective elimination of any permanent partial disability benefits, and the apportionment of some medical expenses to employees. Judge Cueto also noted the background change in Florida tort law from contributory negligence to comparative negligence, and concluded: "The Act may arguably have been a reasonable alternative to tort litigation up to 1968. The benefits in the Act have been so decimated since then that it no longer provides a reasonable alternative to tort litigation."
Judge Cueto rejected the notion of creating isolated exceptions to exclusivity on a case-by-case basis, allowing tort suits where statutory benefits are too restricted, finding that "the infirmities in the current act since 2003 strike at the heart of the exclusive remedy."
Update: The order is now available here. Judge Cueto relied on the National Commission on State Workmen's Compensation Laws' 1972 report and the expert testimony of Professor John Burton.