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Florida comp reforms struggle to balance worker and employer needs

Florida law under attack, studies criticize system

Florida comp reforms struggle to balance worker and employer needs

How the workers comp system balances the rights of injured workers and employers will be a central theme during oral arguments in The State of Florida vs. Florida Workers' Advocates et al.

The state is appealing Miami-Dade Circuit Judge Jorge Cueto's decision last August in which he declared the state's workers comp system unconstitutional because changes to it mean it does not provide “an adequate exclusive replacement remedy” in place of common-law torts.

The judge cited changes lawmakers made over the years that he said “decimated” benefits for injured workers, including 2003 revisions that eliminated compensation for permanent injuries that are not total and cutting off benefits for permanent total injuries after five years or age 75.

In addition, Florida's required co-payment by injured workers means those who cannot pay it cannot get treatment, the judge ruled.

Oral arguments are set for March 30 before the Florida Court of Appeals for the 3rd District in Miami.

In an amicus brief filed in late February, attorneys for several police unions supported Judge Cueto's assertion.

“The undisputed evidence in the present case shows that workers compensation is no longer simple, expeditious, inexpensive or self-executing, and the benchmark of full medical care and wage-loss payments no longer exists,” according to the police unions' brief.

In an amicus brief filed on behalf of the Florida Chamber of Commerce, attorneys opposing the judge's ruling argued that any weakening of exclusive remedy would have disastrous consequences.

“Yearly, tens of thousands of employees in Florida are compensated for their work-related injuries solely through workers compensation,” the chamber said in its brief. “Given the tremendous number of claims made, allowing even a fraction of these claims to be litigated would incredibly burden employers by embroiling them in unwarranted and unnecessary tort litigation.”

Trey Gillespie, Austin, Texas-based senior workers comp director with the Property Casualty Insurers Association of America, said he expects the appellate court to find that the judge overstepped his authority, which several amicus briefs also argued.

“Essentially what the judge did in this case is that he substituted his own opinion for public policy and how best to balance the interests of injured workers and employers,” Mr. Gillespie said. “Public policy is the province of the legislature.”

Robert J. Grace Jr., Tampa, Florida-based partner at The Bleakley Bavol Law Firm, said it's “difficult to believe” that the appellate court will agree with the lower court judge.

“Ultimately, I think it will end up before the Florida Supreme Court,” Mr. Grace said.

Irrespective of the decision in Florida, Bruce Wood, Washington-based vice president and associate general counsel at the American Insurance Association, said disputes about the system's equity will continue nationwide as states look to “provide a fair level of benefits to workers, while keeping it affordable to employers.”

Also in recent weeks, the U.S. Occupational Safety and Health Administration and National Public Radio and online investigative journalism site Pro Publica Inc. called into question the fairness of the nation's workers comp system.

The OSHA report, citing dozens of other studies, said accumulated changes to state workers comp laws have “made it increasingly difficult for injured workers to receive the full benefits ... to which they are entitled.”

The OSHA report said employers now pay about 20% of workers comp costs, with the rest borne largely by workers and taxpayers.

The NPR and ProPublica report concluded that employer and insurer interests have been put above those of injured workers. Nationwide, the average workers comp premium per $100 of wages has fallen from $3.42 in 1988 to $1.85 in 2014, according to the report.

Chad Niec, Chicago-based vice president of risk management at Paramount Staffing Inc., said the system still serves a majority of injured workers well.

“There is no doubt that individuals are being hurt in many industries;” Mr. Niec said. “However, for a majority of injured workers the system still works.”