Florida Workers’ Compensation: The Great Wait

All eyes are on Florida and the key challenges to its workers’ comp laws, including whether the “Grand Bargain” exists

One year ago when the Foreword to the 2014 Edition of Dubreuil’s Florida Workers’ Compensation Handbook (LexisNexis) was prepared we noted two significant cases being watched by the workers’ compensation community. Somewhat surprisingly both cases are still pending and are awaiting a decision by the Florida Supreme Court. The Court takes its annual recess in August and it is looking like decisions in both cases may not be forthcoming until later in 2015. Additionally another workers’ compensation case known as “Padgett” has received national attention and a decision was issued June 24, 2015 by the Third District Court of Appeal. This case could still end up in front of the Florida Supreme Court as well. These three cases collectively represent the most closely watched and eagerly anticipated workers’ compensation cases since Florida’s statute went into effect in 1935.

(Publisher’s Note: Citations link to lexis.com; bracketed cites link to Lexis Advance.)

1. Castellanos

In March 2014 the Florida Supreme Court accepted jurisdiction of this case as one of great public importance. The First District Court of Appeal certified to the Florida Supreme Court the following question:

Whether the award of attorney’s fees in this case is adequate, and consistent with the access to courts, due process, equal protection, and other requirements of the Florida and Federal Constitutions.

The appeal resulted from a Judge of Compensation Claims awarding claimant counsel an attorney fee of $164.54 for 107.2 hours of legal work reasonably necessary to secure the claimant’s workers’ compensation benefits. The First District rejected the facial and as applied constitutional challenges to § 440.34, Fla. Stat. [§ 440.34] made by the claimant holding that based on precedent Florida’s workers’ compensation attorney fee schedule is constitutional.

Oral argument before the Supreme Court on the Castellanos case took place on November 5, 2014. Argument was spirited and provoked numerous questions from the panel. If the Supreme Court strikes down the current attorney fee schedule in workers’ compensation we will likely once again be governed by Lee Engineering & Const. Co. v. Fellows, 209 So.2d 454 [209 So.2d 454] (Fla. 1968) which outlines the basis for calculating an award of a reasonable fee to counsel. However, many observers predict that if Castellanos strikes down the current attorney fee statute, even in part, that the Florida Legislature will immediately respond with legislation; perhaps in a special session. It will be interesting to see whether the stakeholders in the system are able to come up with some sort of agreed or compromise legislation for the legislature to consider.

The Castellanos case has received significant media attention and was designated by the Supreme Court a high profile case. All filings with the Court, including briefs, are available for public review. See Marvin Castellanos v. Next Door Company, et. al, Florida Supreme Court Case No. SC13-2082.

2. Westphal

Last year we reported that the First District Court of Appeal sitting en banc certified to the Florida Supreme Court the following question of great public importance:

Is a worker who is totally disabled as a result of a workplace accident, but still improving from a medical standpoint at the time temporary total disability benefits expire, deemed to be at maximum medical improvement by operation of law and therefore eligible to assert a claim for permanent and total disability benefits?

The First DCA ruled as a matter of law that a claimant who remains totally disabled at the end of the 104 weeks and is at maximum medical improvement can bring a permanent total disability claim. Westphal v. City of St. Petersburg, 122 So.3d 440 [122 So.3d 440] (Fla. 1st DCA 2013).

The Florida Supreme Court held oral argument over a year ago on June 4, 2014. A decision was expected by the end of 2014 but to date no opinion has been issued. It is unclear why a decision is taking so long. This case has also been designated by the Supreme Court as a high profile case and all filings are available online. Bradley Westphal v. City of St. Petersburg, et. al, Florida Supreme Court Case No. SC13-1930 & 1976.

3. Padgett

In a case receiving national attention a Circuit Civil Judge in Miami-Dade County held that Florida’s workers’ compensation law is facially unconstitutional so long as the exclusive remedy provision of § 440.11, Fla. Stat. [§ 440.11] remains a part of the law. Specifically Judge Jorge Cuoto declared:

As a matter of law, Chapter 440, effective October 1, 2003 is facially unconstitutional as long as it contains §440.11 as an exclusive replacement remedy. I find that the Florida Workers’ Compensation Act, as amended effective October 1, 2003, does not provide a reasonable alternative remedy to the tort remedy it supplanted. It therefore cannot be the exclusive remedy. §440.11 is constitutionally infirm and invalid. IT IS ORDERED AND ADJUDGED, that Declaratory Relief is GRANTED. Judgment is entered for Petitioners/Intervenors. §440.11 Fla. Stat. is unlawful, invalid and unconstitutional.

Because the case originated in Circuit Court, appeal was taken to the Third District Court of Appeal as opposed to the First District. Oral argument was held on March 30, 2015. See: The State of Florida v. Florida Workers’ Advocates, et al., Florida First District Court of Appeal Case No.: 3D14-2062. Numerous organizations and groups filed Amicus briefs on behalf of both sides. Padgett seems to have received so much attention because it is part of a larger discussion around the country whether the “Grand Bargain” exists. That is whether the giving up of the common law right to sue your employer is truly replaced by an adequate benefit system that serves as a remedy for injured workers. Recently ProPublica issued a controversial report titled “The Demolition of Workers’ Comp” which focused on what the authors believe was a reduction of workers’ compensation benefits around the country with the result being a shifting of the costs of workplace accidents on taxpayers. Interestingly on the same day the ProPublica report was issued in March 2015 the Occupational Safety and Health Administration (OSHA) issued a report concluding among other things that employers currently provide only about 20% of the overall financial cost of workplace injuries and illness.

On June 24, 2015, the Florida Third District Court of Appeal reversed and completely repudiated the decision of Judge Jorge E. Cueto. See State of Florida v. Florida Workers’ Advocates, 2015 Fla. App. LEXIS 9531 [2015 Fla. App. LEXIS 9531] (June 24, 2015)]. It remains to be seen if the case will end up before the Florida Supreme Court.

Whether Padgett becomes a canary in the coal mine or simply an interesting footnote in Florida workers’ compensation jurisprudence is still unknown. However, it is certain we will likely be again discussing the case in next year’s Foreword to Dubreuil’s Florida Workers’ Compensation Handbook (LexisNexis).

© Copyright 2015 LexisNexis. All rights reserved. This article was excerpted in part from the upcoming 2015 Edition of Dubreuil’s Florida Workers’ Compensation Handbook (LexisNexis).