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Miami­ Dade Circuit Court Judge Declares Florida Workers’ Compensation Law Unconstitutional




On August 13, 2014 Circuit Court Judge Jorge E. Cueto ruled §440.11 of the Florida Statutes (2003) unconstitutional. §440.11 governs Florida Workers’ Compensation eligibility and benefits.

Since 2003 §440.11 has been the exclusive remedy available to injured workers, their spouses, and their estates for injuries or death on the job.

Throughout our states history injured workers have had a couple options when it came to dealing with their work place accidents. At times, they have had the option to “opt out” of coverage completely and leave open the possibility of a tort action such as negligence. In 1970 the Florida Legislature took away the “opt out” option starting the trek of Workers’ Compensation becoming the exclusive remedy for injured workers. This is not in and of itself a bad thing, in its early stages it was an adequate replacement for tort actions. At that time Florida was a contributory negligence state which meant that if your own negligence contributed in any way to your injuries, you may have been barred from recovery. Also, injured workers also were able to recover for partial loss of wage earning capacity or permanent partial disability.

Things in Florida have changed considerably over the years. First, Florida is now a comparative negligence state. That means that an injured party may no longer be completely barred from recovery based upon their own negligence but only subject to an off set. So, if 99% of the negligence that caused your injury can be attributed to you and 1% to the other party, you are still able to recover based on that 1%. Now that injured employees do not have the risk of being completely barred from recovery based upon their own negligence, the exclusive remedy provision of §440.11 loses some of its muster. In addition to the above, under the law as currently applied, injured workers can no longer recover for permanent partial disability. Once employees lost the right to recover based upon a permanent partial disability, no reasonable alternative was given. As of October 1, 2003 the legislature eliminated all compensation for loss of wage earning capacity that is not total in character.

The crux of all of this lies in every Floridian’s right of access to the courts for redress for a particular injury. The legislature is without power to abolish such right without providing a reasonable alternative to protect the rights of the people of the State. Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973). As discussed above, in the latter part of the twentieth century it could be argued that the Workers’ Compensation statute was an adequate and reasonable alternative to the court system.

Again, this is a different story in today’s world. Kluger provides us with a three step test to determine whether or not the alternative to the court system is a reasonable alternative: (1) the amendment to the compensation act must abolish a preexisting right of access, which would be the right to be compensated for future lost earnings, (2) whether or not a reasonable alternative exists to protect the preexisting right of access, and (3) if no such reasonable alternative exists, whether there is an overpowering public necessity for the amendment.

The Honorable Judge Cueto agreed with the Florida Supreme Court and opined that a reasonable alternative would be an act that compensates for partial disability and provides full medical care, two areas where the current act fails miserably.

Through Judge Cueto’s ruling and a couple other cases currently before the Florida Supreme Court, the current landscape of Florida’s Workers’ Compensation law is on the brink of change.

Change for the better. We would love to discuss your case and explain what these possible changes mean for you. If you or someone you know is in this situation, please give us a call at (877) 817­4127.


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