Archive for August, 2014

South Florida Judge declares F.S. 440.11 unconstitutional – potential impact on First Responders

Posted in Heart/Lung Bill on August 14, 2014 by leslie@lawyertampa

A Miami-Dade circuit court judge declared the exclusivity provision of Florida’s workers’ compensation law unconstitutional today.  This could result in the legislature having to  re-write a major provision of the law.

This has nothing to do with the heart-lung provisions of F.S. 112.18, but it would have a big impact on first responder cases.

In a nutshell, workers’ injured on the job have workers’ compensation as their exclusive remedy.  You can’t opt out of workers’ compensation and sue your employer for damages.  To give up your constitutional right to sue for damages and have redress by jury, the courts have said you have to have an adequate substitute.  The problem is, the insurance industry has influenced the Florida legislature to chip away at workers’ compensation law.  Every rewrite of the law has reduced benefits for workers. The last major re-write in 2003, took away several important safeguards for workers.

Right now, if you have only a partial loss of earning capacity, you get paid nothing under the comp law.  You receive temporary lost wage benefits up to MMI, but once your doctor releases you, you only get paid additional lost wage benefits if you are permanently and totally disabled.

The problem with 90% of the first responder cases is you are a highly paid, fit group of employees.  Many injuries may disable you from police or firefighting work, but don’t permanently disable you from other work.  For instance, if you have a dominant hand injury, or a heart condition that makes you unfit for police work, you may sill be fit to perform desk work.  If you have to perform desk work, your earning capacity is reduced, your salary takes a big hit, but under the current law, you get no compensation for the reduction in salary.  You receive nothing under the Florida’s workers’ compensation statute when your work related injury results in a reduction in earning capacity.

Florida is the only state that pays nothing for a partial loss of earning capacity.  Today, a Florida Circuit court judge said the legislature has gone too far and it was unconstitutional to strip away a workers right to sue their employer in exchange for a system that pays little to nothing.  If this decision holds water, the legislature may have to rewrite the law to provide payment to injured workers who have lost part of their earning capacity.   There is hope yet!

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