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Exclusive remedy litigation heads to Florida Supreme Court

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Workers comp professionals expect the Florida Supreme Court to dismiss an appeal of a ruling that overturned a judge's invalidation of the state law that makes workers compensation the exclusive remedy for injured workers.

Before deciding whether to review The State of Florida v. Florida Workers' Advocates et al., the Florida Supreme Court on Monday directed petitioners to file amended paperwork.

Miami attorney Mark Zientz, who filed the appeal earlier this month on behalf of Florida Workers' Advocates challenging the constitutionality of the state's workers comp system, said Wednesday that he complied with the order.

In June, a three-judge panel of Florida's 3rd District Court of Appeal in Miami unanimously reversed Miami-Dade Circuit Court Judge Jorge Cueto's August 2014 ruling, in which Judge Cueto ruled that reforms in Florida's system “decimated” workers comp benefits to the point that they no longer provide “an adequate exclusive replacement remedy” instead of common-law torts.

Sources said the appellate court ruling was a win for workers comp payers everywhere, as exclusive remedy is the basis of the nation's workers comp system. In most states, injured workers can receive benefits only through the comp system, and liability lawsuits typically are allowed only in cases of gross employer negligence.

The appeals court judges said they wouldn't rule on the constitutionality of exclusive remedy, as the plaintiffs in the case — including Florida Workers' Advocates, the Workers' Injury Law and Advocacy Group, and injured Miami-Dade County worker Elsa Padgett — lacked standing.

Mr. Zientz argues that “the parties did have standing … and the issue wasn't moot because it was raised prior to the separation of the original plaintiff.”

The case originally involved injured farm worker Julio Cortes and his employer, Velda Farms L.L.C.

The appellate court's decision “on the procedural issue was very well reasoned and, consequently, there will be no surprise if the (Florida) Supreme Court refuses to hear the appeal,” Trey Gillespie, Austin, Texas-based senior workers comp director at the Property Casualty Insurers Association of America, said in an email. Should the Supreme Court hear the case, “I suspect that the decision of the 3rd District Court of Appeal will be affirmed and the (state) Supreme Court will not address the constitutional issues.”

While Mr. Gillespie said plaintiff attorneys in other states probably will try to “effectuate workers compensation reform indirectly through the court system rather than directly through the legislative process,” workers comp payers should not panic.

“The appellate courts will recognize that there are fundamental public policy issues at stake that are, and should be, left to the legislative process,” Mr. Gillespie said.

Mr. Zientz said he doesn't expect to hear anything further regarding the appeal in The State of Florida v. Florida Workers' Advocates et al. until September.