The Workers Comp laws were originally a “compromise” between employers and employees.  Injured workers gave up the right to be able to sue their unsafe employers or negligent co-workers in Court under Common Law, and instead they would be able to avail themselves of the promised quicker, less expensive and complicated Workers Comp administrative system.  The workers comp act was then to be the injured worker or their family’s “exclusive remedy” under the law.  The workers comp system was developed to be a “medical bill payment and partial wage replacement system” according to what Professor Larson told me at a lunch for those of us who had written books for our publisher (now known as LexisNexis).  However, that compact, between employee and employer, has been subverted.  These administrative claims are now litigated like court cases.  They are expensive, complicated and time-consuming.

As a lawyer who practices in a number of states, including Florida, I was glad to see that a Florida Judge had the courage to declare the exclusive remedy of the Comp Act Unconstitutional.  Most judges, when confronted by an absurd result under the comp laws, will simply tell me that, “it’s a matter for the legislature” or ” their hands are tied.”  However, this Miami trial court judge declared the exclusive remedy provision of Florida’s Workers’ Compensation Act facially unconstitutional as a matter of law.

Miami-Dade Circuit Judge Jorge Cueto found that the Act was “no longer an adequate exclusive replacement remedy in place of common-law tort, as required by the 14th Amendment to the U.S. Constitution or by the Florida Constitution.”  He observed that the act “became unconstitutional as an exclusive remedy in stages,” as legislative amendments “decimated” the benefits provided through the years. During this process, Cueto said, “fundamental rights guaranteed by the Constitution were eviscerated by merely enacting a statute and relying upon the police power of the state for validity.”  As it stands now, he opined, the act “fails miserably” in promoting the public morals, health, safety and welfare of the citizenry of Florida, and plainly does not pass constitutional muster.  Florida Workers’ Advocates and the Workers’ Injury Law & Advocacy Group (of which I am a member) had championed the constitutional arguments after intervening in a tort suit that Julio Cortes filed against his employer, Velda Farms. To read the article in the Miami Herald about injured workers being cheated by the workers compensation scheme, click here.  I hope that Judge Cueto’s brave decision withstands the challenges and appeals that the insurance industry and corporate lobbyists will no doubt finance.  Stay tuned !