Tag Archives: Exclusive Remedy

Advocacy Group Petitions Florida Supreme Court to Review Work Comp Constitutionality

As I reported three weeks ago in “Breaking News on ACA and Exclusive Remedy”, the issue of constitutionality of Florida’s workers’ comp system was settled by the 3rd District Court of Appeal.

However, Stephanie Goldberg reported today in Business Insurance that an advocacy group has petitioned the Florida Supreme Court to review the case that challenges the constitutionality of the state’s workers’ comp system.

The Florida Workers’ Advocates filed an appeal with the Court to review The State of Florida v. Florida Workers’ Advocates et al.

The case questions whether workers’ comp is an adequate exclusive remedy for injured workers. This issue was discussed in my previous articles, “Constitutionality of Workers’ Comp Challenged: What that could mean for Medical Travel” and “Update on Constitutionality of Work Comp in Florida“.

As far as Florida Workers’ Advocates are concerned, the issue of the constitutionality of workers’ comp has not been settled, so expect more on this in the future.

What does it mean for you?

Probably nothing, because the Supreme Court will probably uphold the District Court of Appeal ruling that the plaintiffs had no legal standing to challenge the constitutionality, and that will settle the matter.

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I am willing to work with any broker, carrier, or employer interested in saving money on expensive surgeries, and to provide the best care for their injured workers or their client’s employees.

Call me for more information, next steps, or connection strategies at (561) 738-0458 or (561) 603-1685, cell. Email me at: richard_krasner@hotmail.com.

Ask me any questions you may have on how to save money on expensive surgeries under workers’ comp.

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Exclusive Remedy in Workers’ Comp under Assault

Exclusive-Remedy-Rule

As I reported last July in my article, Constitutionality of Workers’ Comp Challenged: What that could mean for Medical Travel, and three weeks later in my article, Update on Constitutionality of Work Comp in Florida, the concept of workers’ comp being the “exclusive remedy” for injured workers in Florida was ruled unconstitutional by a Miami-Dade county circuit judge.

Last week, Business Insurance’s Stephanie Goldberg and others, reported that a district court judge in Pottawatomie County, Oklahoma ruled that its state’s workers’ comp law does not provide exclusive remedy for “foreseeable” injuries. The article, No exclusive remedy for ‘foreseeable’ injures in Oklahoma: Court, discusses a case involving an employee of a tire company who was injured while loosening a bolt on a wheel in February 2014.

The judge ruled that the employee could sue his employer, because his injury was “foreseeable” and therefore, he did not suffer a compensable injury under Oklahoma’s Administrative Workers’ Compensation Act.

The Act states, according to Goldberg, that an accident is an event that “was unintended, unanticipated, unforeseen, unplanned and unexpected.” His attorney is quoted as saying that Oklahoma’s exclusive remedy provision “contains unconstitutional provisions which deny an injured worker’s right to an adequate remedy.”

In an interview with a local newspaper in Oklahoma, the attorney said that the Administrative Workers’ Compensation Act “abrogates the employer/defendant’s immunity from a negligence action in district court. Exclusive remedy is dead.”

It occurred to me that there was a pattern here with the cases in Florida and in Oklahoma, and that an organization called “ALEC”, the American Legislative Exchange Council, might behind these moves, but I did not find any connection to them.

What it does signify is a return to the kind of world that existed in the years before workers’ compensation was enacted in all fifty states. Workers who were injured on the job would sue their employers, if they were able to go to court, and try to get their injuries paid for. What the exclusive remedy did was to create a “grand bargain” whereby the employee gives up the right to sue, and the employer, or his insurance carrier, pays for his lost wages and medical care.

In Oklahoma, this comes after the state authorized some employers to opt-out of the state’s statutory system, as I mentioned in my article, Opt-out as a way in: Implementing Medical Tourism into Workers’ Compensation. I am all in favor of giving employers some flexibility in their workers’ comp program, and unlike what is done in Texas, where some employers simply go without, while others opt-out or are a part of the system, Oklahoma requires employers to follow certain guidelines.

Yet, this ruling, and the one in Florida, do not bode well for the survival of workers’ comp as a whole, and that would be a sad day indeed.

What does this mean for medical tourism and workers’ comp?

Well, if these rulings hold, and workers’ comp is ruled unconstitutional, one of two things would happen. Either, state legislatures would have to rewrite their laws, or we would go back to the bad old days before workers’ comp enactment. Then you would have a “wild, wild, west” of lawsuits and injured workers losing their cases. If there is a workers’ comp version of the NRA, they would be very happy indeed with that outcome.

What it would mean for medical tourism? It would probably be a boon, because then more injured workers would be able to go out of the country for needed surgery, but the question as to who would pay for it would need to be determined. It could be paid for under group health, but that would cost-shift a workers’ comp claim to health care, or it could be paid for out of the settlement.

Let’s hope that there are wiser heads around to prevent what would be a mass catastrophe, as far as injured workers and their families are concerned.

Update on Constitutionality of Work Comp in Florida

Three weeks ago, I discussed a workers’ compensation case here in Florida where the Plaintiff and his attorney alleged that the Florida workers’ compensation act was unconstitutional.

The article, Constitutionality of Workers’ Comp Challenged: What that could mean for Medical Travel, suggested that if the Florida act was ruled unconstitutional, there could be an opening for medical travel in workers’ comp in Florida, as both injured workers and their employers would no longer be subjected to administrative law judges and the courts.

At that time, it was speculative if the workers’ comp act would be ruled unconstitutional. But as CA attorney David De Paolo wrote yesterday on his blog about another case in Florida, the judge in that case declared the system to be unconstitutional.

According to De Paolo, a ruling on Wednesday by Miami-Dade Circuit Judge Jorge Cueto in Padgett vs. State of Florida, said that the exclusive remedy provision of Section 440.11 is facially unconstitutional.

David reported that the basis for Judge Cueto’s ruling is that over the years the Florida workers’ compensation act’s original grant of benefits for permanent disability, which was part of the “Grand Bargain,” has been so eroded as to no longer serve as an adequate remedy.

Judge Cueto, David says, cited the original constitutional test of the exclusive remedy of workers’ compensation in the United States Supreme Court case of New York Central Railroad v. White, 243 US 188 (1917), a case in which ironically the business community sought to declare compulsory workers’ compensation laws unconstitutional.

According to David, Judge Cueto quoted one of the more powerful passages in that case:

“One of the grounds of its concern (the workers’ compensation act in question) with the continued life and earning power of the individual is its interest in the prevention of pauperism, with its concomitants of vice and crime.”

For years, David tells us, attorneys representing injured workers throughout the nation have been saying that the compensation bargain has been eroded and one need only visit all of the various injured worker “forums” on the Internet to see that this particular demographic feels pushed into pauperism as a consequence of industrial injury.

What the judge is actually saying, David explains, is that if the remedy provided by the Florida Act is mandatory and exclusive, then it doesn’t meet constitutional muster because there isn’t enough money to keep injured workers from diving into pauperism, which harms all of society and places excessive burdens on other systems such as Social Security or Medicare (or what we like to call in our sanitized jargon “cost shifting”).

In previous posts, The Stench of Fraud: Why Workers’ Comp Can No Longer Be a Closed System and The Stench of Fraud, Continued, I discussed the plight of someone I called “Ms. X”. This individual has been abused by the system in her state, and has been reduced to some level of pauperism by the system for its failures to adequately and fairly treat her for her work-related injuries. As I reported at the time, she has been abused by both the medical profession in CA, the legal profession, her former employer, and is now subject to having her communication, both telephonic and internet, being monitored by defense attorneys.

In light of the civil unrest in Ferguson, Missouri and the militarization of the police there, one has to assume that we are living in a police state more like that of Communist China, Cuba, and North Korea, as well as the former Soviet Union, instead of the US. I can see why Judge Cueto ruled as he did in the Padgett case, since the injured worker is being treated like a political prisoner or a common criminal, instead of as someone who needs to be taken care of when suffering an injury arising out of and in the course of their employment.

But back to the case before us.

Without going any deeper into the ruling itself, and to get to the wider point of what it means for workers’ compensation, let me say that as David mentions in his blog, the adequacy of benefits in workers’ compensation is getting the attention of the judicial system from coast to coast.” He goes on further to say that in California, the constitutionality of the state’s system is being picked at piece by piece.

In addition, last year, he states, the Texas Office of Injured Employees Counsel released a couple of reports suggesting the dispute resolution system lacked constitutional protections for injured workers, and there are other states where workers’ compensation laws are being questioned as conforming to the original bargain in one form or another.

He also points to the Oklahoma opt-out (see my posts, Opt-out as a way in: Implementing Medical Tourism into Workers’ Compensation and Opt-out as a way in: An Update for more in-depth understanding of what an opt-out program is), as well as the constitutional attacks, complaints about costs and inadequate benefits, and says that what is really going on here is a debate that he’s been having for quite some time: Is workers’ compensation even relevant any longer?

I think another point that needs to be made is this: are our politicians, or at least some of them (the Tea Party/Libertarian wing of the GOP) trying to undo the rights of injured workers the same way many of their governors have been doing to public employee and private employee unions since a former head of the Screen Actors Guild became their knight in shining armor and patron saint.

David goes on to add, and I agree with him that, this debate is getting louder and, as work comp is a microcosm of society, it points to larger issues facing society – a huge discord between the minority of “haves” versus the vast majority of “have nots.” In other words, between the “one percent” and Willard Mittens Romney’s (aka, Thurston Howell III) “forty-seven percent”.

But what is really happening at a much deeper level is that ever since the late 1970’s or early 1980’s (“Well, there you go again!”), the US has been in the grip of what Said Dawlabani calls “the only money matters” vMeme. This vMeme (or value system) is what has been driving the American economy off a cliff for more than thirty years, and is being orchestrated by the players on Wall Street.

We have seen this in nearly every industry that Wall Street gets its grubby little hands on. It has happened in retail, in banking, insurance, health care, and now workers’ comp. My fellow blogger, Joe Paduda has written extensively about the corporate buyouts of third party claims administrators and claims management companies, as well as other service providers to the workers’ comp industry such as pharmacy benefit management firms and translation/transportation companies.

These acquisitions have either come from competitors buying up each other, or from private equity firms seeing the potential of big payouts to their investors from workers’ compensation. But in the consolidation and accumulation of companies that has taken place over the years, jobs have been lost, workers have been ignored or forgotten as the main reason why workers’ comp exists in the first place, and as I’ve said many times before, it is a broken and dysfunctional system that is too dependent on the legal system or on doctors who are milking the system for all they can.

The social safety net that began to be weaved one hundred years ago, from the enactment of workers’ comp to Social Security, Medicare and Medicaid, is being slowly unravaled by Ayn Rand devotees who think such things are “entitlements”, but who believe that a millionaire or billionaire who gets a tax break at our expense is a “job creator”, and therefore they are entitled to get wealthier. Yet, I’d like to see how wealthy they’d be without workers making the goods or providing the services that they are getting rich from.

David brings up one other point about the judge’s ruling and its meaning that I also agree with. He says that Judge Cueto in the Padgett case is really opening up a debate about whether society is taking care of its own any longer, and that the Padgett case is about social unrest. We are, indeed, meandering into challenging times where the nation’s soul is being examined.

And I would add, that it is incumbent on everyone who cares for sick or injured people, no matter whether they are rich or poor, that they get the best care available and at the lowest cost possible, even if that means having them travel to other countries to get it. Because in the final analysis, if the Rand Paul’s and Paul Ryan’s and the Letter to the Editor writers to the Wall Street Journal, Fox News viewers and talk radio ditto heads get their way, this country will look like it did in 1789, not 2014.

Medical travel may be able to salvage some of the social safety net, but the industry must make that decision. The future medical care of injured American workers depends on it if the Padgett case stands.

Constitutionality of Workers’ Comp Challenged: What that could mean for Medical Travel

David De Paolo posted on his blog today about a case in Florida where the plaintiffs are challenging the constitutionality of Florida’s workers’ comp system on the grounds that the various reforms over the many years the system has been in existence has served to devalue the workers’ compensation program to such a degree that it no longer can be said to meet its constitutionally declared objectives.

The plaintiffs in Julio Cortes v Velda Farms allege, according to De Paolo, that the comp system became “unconstitutional as an exclusive remedy in stages,” as lawmakers made changes that slowly eroded the benefits and protections available to workers.

The plaintiffs argue that up until 1968, parties could “opt-out” of participating in the comp system, much in the way Texas and Oklahoma are allowing employers to do now, but when workers’ compensation became the exclusive remedy for industrial injuries in 1970, the plaintiffs argue that lawmakers did not provide workers with anything in exchange for completely taking away their right to sue.

The plaintiffs are basing their argument on a 1973 case that asserted that anytime the Legislature takes away a right that had previously been guaranteed to the citizens of the state, it must provide a “reasonable alternative.”

De Paolo says that the plaintiffs have a long way to go in proving their case, but it made me stop and think of what might happen if the workers’ comp system was declared unconstitutional, and what that could mean for medical travel.

First of all, the employees might file claims under the employer’s group heaIth plan, so as part of the benefits package, the employer could offer medical travel as a option under their health plan. Second, it could mean that employers and employees might be more willing to pursue medical care out of state, for different reasons, of course. Employers would be interested in saving money and the employees would be interested in getting treated in their home countries.

Given the workforce demographic in Florida, medical treatment in their home countries in Latin America and the Caribbean would be more likely once injured workers and their employers are no longer be subject to administrative law judges and the courts, and that may boost medical travel in the region.