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

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!

Advertisements

2 Responses to “South Florida Judge declares F.S. 440.11 unconstitutional – potential impact on First Responders”

  1. In today’s law enforcement environment, we are being injured, shot, and killed more so than ever before. Unless a person has been in our shoes they will never understand what this stress is doing to our heart health. A Deputy of the Palm Beach County Sheriff’s Office had to defend his life less than 24 hours ago. The suspect had a gun, pointed (have not seen video yet) The Deputy prevailed, the bad guy lost. I hope our good lawyers will fight to have our rightful benefits restored. Everyday we don’t know if we will see our Families at the conclusion of our shifts. Thank You!

    • Well said! There are a few lawyers who devote their entire practice to first responder cases. The difficulty with understanding these cases rests largely with the fact that the medical community still doesn’t know what causes heart disease. The statute gives the presumption of causation. But get in front of a cardiologist and you get into a pecking match over “risk factors” versus causation.

      You can have a 300 pound man who has smoked all his life never develop heart disease. It is equally true you can have a fit person, with no family history of heart disease, have a massive heart attack. So doctor’s can never truly say, with 100% certainty, what causes heart disease. You can say a person has risk factors, but those risk factors don’t predict with accuracy who will and won’t develop a disease.

      Some cardiologists recognize this fact, other don’t. Much depends on the view of the cardiologist treating you.

      The other thing to bear in mind is it is rare that heart disease is ever completely physically crippling. Modern medicine has come a long way and most treating physicians will release cardiac patients to some form of desk work. That may be an obstacle in a workers’ compensation case. Many first responders are reluctant to go back to the stress of their job after suffering a major cardiac event. Who can blame them? Stress is often the precipitating factor in heart attacks, yet somehow physicians think going back to work in a desk job doesn’t involve any stress.

      I don’t think they appreciate how stressful these jobs can be, even from a desk. Just my two cents.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: