Sunday, February 7, 2016


JEB is an interesting character. On the one hand he professes to be interested in the plight of the ordinary citizen and on the other, as Governor, he sought to please the varied business interests that have contributed to his past and current campaigns. Business interests became superior to the health and welfare of Florida workers during his governorship.
The story begins on March 25, 1911.  146 garment workers perished in a fire at the Triangle Factory in New York City, most of them young Jewish and Italian immigrant girls. The factory was clearly unsafe, with locked exit doors and blocked passage ways and a few buckets of water to fight a fire. The public outrage over this fire sparked the development of both workplace safety laws and workers’ compensation laws. Both safety and workers’ compensation have traveled hand in hand until JEB took over as Governor of Florida.
In 1935 Florida enacted its workers’ compensation and workplace safety law. They were one and the same. Chapter 440, Florida Statutes. The act set up a fund called the Administration Trust Fund, to gather the money necessary to administer the law, ie: pay the costs of administration and pay the costs of safety enforcement. The money in the fund was a percentage of the premiums paid by employers to their workers’ compensation insurers, a premium tax. In other words, employers funded the workers’ compensation adjudicatory system and the safety portion of the law.
Fast forward to JEB’s governorship, 1999 to 2007.  He allowed the Florida Workplace Safety & Health Act to be repealed in 2000. Florida became the only state with a repealed Workplace Safety Act. In validating the New York workers’ compensation law in 1917, the United States Supreme Court said it expected that there would be other laws providing for accident prevention. There were such laws in Florida from 1935 up to 2000.
In 2003 JEB presided over a legislature that eviscerated the benefits paid to injured workers and made the process and the proof necessary to obtain benefits much more difficult, if not impossible, for injured workers. For example, a new definition of ‘accident’ was placed in the law. One has to have an accident to get benefits. The new definition says: “An injury or disease caused by exposure to a toxic substance, including but not limited to, Fungus or Mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that the exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee”, s.440.02 (1) (2003).  If a firefighter is exposed to smoke and thereafter sustains a serious skin condition, that individual could not possibly prove an injury by accident!
 “What about OSHA?”  Good question. OSHA does not cover employments where less than 10 employees are working. That is the majority of Florida businesses. OSHA does not cover employees of the state and local governments, like Firefighters, Bus Drivers and School Board employees. Those workers have NO safety protection at work. Not from mold, asbestos, fungus, chemicals, or the lack of safety devices, etc. Those employees covered by OSHA should not exhibit a sigh of relief. In 2011 the U.S. Department of Labor reported that it would take current OSHA employees 230 years to inspect each covered Florida workplace, one time!
Since 2000 employers no longer have to pay the cost of a safety program. If the business has less than 10 employees, there is no fear whatsoever of an OSHA inspection. If over 10 employees, the odds of an inspection are virtually nil. Government can ignore unsafe operations because there is little incentive to make the job safe since benefit levels for injured workers are so low. The 2003 amendments eliminated the most important and costly benefit of a workers’ compensation scheme, permanent partial disability- payment for partial loss of wage earning capacity.
In December a single mother of two young children was crushed to death by the Miami-Dade County bus she was assigned to operate. The cause was an inoperable safety device. An expose by the press revealed that over 90% of Miami-Dade County busses had inoperable or missing safety devices. Blame Jeb.

Wednesday, January 28, 2015

Constitutional Challenges to workers comp and Safety

It has been a long, long time since I last posted. A lot has happened in my world. Three of those years have been spent in my effort to have the 'exclusive remedy' of workers' compensation for on the job injuries ruled unconstitutional in Florida. The effort has been quite successful so far. Last August a very courageous circuit court judge in Maim-Dade County entered a final judgment finding the exclusive remedy unconstitutional. The Attorney General  has appealed and the case is now in the Third DCA. Briefing is still going on so a decision is not in the very near future. Regardless of what the result is at the DCA the case will be presented to the Florida Supreme Court. If we win in the DCA the Supreme Court will be required to accept the case on appeal and if we lose, the Supreme Court will have the discretion to accept the case or decline.
There are presently pending in the Supreme Court two cases that will test whether or not injured workers have a right to more than 104 weeks of temporary benefits and in the other case, test whether or not the legislature can create an unrebuttable presumption that an attorney fee schedule applicable only to claimant attorneys is constitutional. Both cases have been argued in the court and a decision could come any day or any year now. I prepared friend of the court (Amicus) briefs in these two cases.
Other cases challenging the inadequate benefits provided by the law are pending in other courts across Florida. The I am involved with most of them. The Second DCA will hear oral argument from me on February 17, 2015 in a test of the restriction on death benefits that does not provide any benefit for the non dependent parents of  their deceased son. The young man was killed on his 21st birthday working as a lifeguard at a Tampa waterpark. His death was caused by the gross negligence of the park operator in failing to close the park when the lightning strike detector indicated a storm very nearby. The young man was struck by lightning. OSHA ruled the death was caused by the failure of the park operator to operate a safe workplace. The employer paid $7,500 for burial and nothing more. In Florida if the death was to a patron and not an employee, the parents would have been allowed a wrongful death recovery.
OSHA is the only agency that enforces safety rules in Florida. As part of the workers' compensation laws going back to 1935, safety was always a part of the responsibility of the employer along with medical and indemnity benefits. This evolved from the famous or infamous Triangle Shirtwaist Factor fire in New York. Google Triangle for the full story. Florida's safety rules were enacted and enforced by inspectors from the Division of Safety. The Division of Safety was paid for out of a fund to which employers contributed, not out of tax revenue. During the Jeb Bush years, Florida repealed all safety provisions. Employers don't have to pay for safety any more. That left OSHA to enforce federal rules for private employers and no one to enforce any type of safety for Florida government employees, like Judges in sick building courts. For private employers OSHA indicated in 2011 that staffing was such that it would take 230 years to inspect each Florida covered private employment one time!
No wonder Governor Rick Scott has been successful in attracting new business to Florida. After all, workers' compensation premiums have been reduced almost 60% since 2003 and employers don't have to be worried about creating unsafe workplaces. The likelihood of an inspection is so low that you could set up a business with all the exits from the workplace locked, like the Triangle Factory, and the business could be passed down three generations with no fear of OSHA trouble.
OSHA requires private employers to report serious injuries causing hospitalization within days of the occurrence and workplace fatalities within 8 hours so that OSHA can do a timely inspection. Last week a produce clerk fell off a loading dock at the supermarket where shopping (but not working) is a pleasure. He was in a coma for 5 days and then passed away. OSHA was not notified timely, or at all until I got involved.
Florida ranks third in the country in workplace on the job deaths surpassed only by Texas (where the other son of a Bush was governor) and California. I know of no prosecutions for criminally negligent homicide. If OSHA says the death is due to criminal negligence, why isn't any employer prosecuted by the States' Attorney's? I guess that is another talking point of Governor Rick in his sales pitch to get business to move to the Sunshine state.
More soon.

Wednesday, July 7, 2010


This past Tuesday, July 6, 2010, was a significant day for the rights of injured workers and a blow to the entities that lobbied for more benefit cuts and the creation of an atmosphere that fosters the denial of claims without adequate investigation and without regard for the consequensces.

In the case of Wendy Larson v. Kraft Foods, circuit court Miami-Dade Co. Senior Judge Michael Genden, the Kraft folks paid over 2 million dollars for a general release of all claims from their employee plaintiff. All medical liens for approx.$250,000.00 in care provided by the group insurer were also waived. In addition, Plaintiff collected 6 months of Short Term disability benefits.

Had plaintiff's workers' compensation claim been investigated, the claim might have been accepted based upon repetitive trauma causing a cervical disk and bi-lateral thoracic outlet syndrome. Medical would have been less costly and the comp case for settlement purposes would have been worth 300k or less. There would have been a SSDI offset. The employer and carrier preferred to initially shift the cost to the STD carrier and the group carrier whose premiums had already been paid raither than accept the cost as WC and pay off the bottom line. The Employer likely was self insured for WC or had a large deductable. So WC benefits would come off the net profits.

So when the Notice of Denial came in asserting that the accident did not arise out of the employment, I dismissed the PFB I had filed and sued in circuit court alleging ordinary negligence and failure of the master to fulfill the obligations of the master to the servant.

The bottom line became over 2 million dollars poorer when Kraft upped the offer just before jury selection was to begin. A lot of credit should go to Attorneys Mark Poses and Jeffrey Hirsh, my co-counsel. They prepared a magnificent case for trial.

Thursday, June 24, 2010

Bad Beats in Comp

By most accounts this was a good week. Injured workers won two but also lost two. On the losing side were the injured worker who had pre-existing cervical and lumbar arthritis that was non-symtomatic even though he worked at a heavy physical job. After his lifting incident he developed disabling symptoms which his doctors attributed to his arthritis and not his 'accident'. Major Contributing Cause did him in compwise. If only there had been some negligence on the part of his employer I would have sued under part II.
The other loss was in a case that stands for the proposition that the employer who hires an undocumented worker gets off the hook for indemnity if the employee doesn't file tax returns even if the E/C isn't interested in defending on that basis and stipulates to the AWW. The JCC can do it for the defense, after the evidence closes and without notice or opportunity to be heard. No opportunity to get the case to the Supreme Court. En Banc denied, certified question denied. Due process---DENIED.
But on the brighter side the ineptness, bad faith, and mean spirited claims handling of the Div of Risk Mgt was exposed in Gauthier v.. FIU. Lets hope the CFO reads it and makes some neeeded changes in the Div of Risk Mgt. The philosophy of providing injured state employees with the lowest level of care and the least amount of benefits and of questioning every claim as if the injured worker was a criminal instead of a valued employee has to stop. The opinion didn't mention that the adjuster refused to reimburse the employee for prescription glasses broken in the accident unless the unrepresented (at that time) claimant could 'prove' the glasses were broken in the accident. And advised the injured worker that she would not be reimbursed for mileage to the pharmacy when that is opposite what the law says. That is in addition to knowing the injured worker had a permanent injury but making little or no attempt to get MMI and a rating and paying the IB's due before the SOL ran. 'Gotcha' techniques, as Judge Alan Schwartz (3 DCA senior judge) would say.
The last matter was the Bifulco case out of the Florida Supreme Court today. As Amicus for FWA we established that the law in Florida is that if you sue a government entity for a cause of action arising out of ch.440, the immunity granted to the government, pre suit notices etc. are not applicable since the government has to be treated as any other employer. The underlying claim was under 440.205- wrongful termination.

Tuesday, June 30, 2009


I just got to thinking about the legal effect of trying to remove the word "reasonable" from the attorney fee section of chapter 440. Does lining out the word really have any meaning? I think not.

Statutes are interpreted every day to get a "reasonable" result. That is what the Supreme Court did in Murray v. Mariner Health. I postulate that the word "reasonable" must be read into every attorney fee statute, whether spelled out or not. It's called 'public policy'. The bar requires all fees to be reasoanble.

In a 1952 decision concerning attorney fees for actions to enforce rights under an insurance contract, the Florida Supreme Court wrote, " This statute (the Insurance Code) is part of the public policy of the State of Florida and its purpose is to discourage the contesting of policies in Florida Courts and to reimburse successful plaintiffs reasonably for their outlays for attorney's fees when a suit is brought against them, or they are compelled to sue, in Florida Courts to enforce their contracts". And, "The business of insurance is affected with a public interest and therefore is subject to reasonable regulation by the legislature", Feller v. Equitable Life Assurance Society, 57 So. 2d 581 (Fla 1952).

The concept of 'reasonableness' permeates Florida law. Presuit investigation in Medical Malpractice actions requires 'reasonable' investigation, and the award of 'reasonable' attorney fees, s.766.206 Fla. Stat. 2004.

The legislature has mandated the inclusion of the word 'reasonable' in contracts that leave the word out! s.672.309 (1) Fla. Stat., "The time for shipment or delivery or any other action under a contract if not provided in this chapter or agreed upon shall be a reasonable time" .

The Third DCA has said, "Where, as here, the fee based purely on the schedule of fees suggested by a local bar association, it violates the rule of Munroe v. Birdsey, 102 Fla. 544, 136 So. 886 (1931) which requires reasonable compensation based upon the services provided, and, A court is without power to measure an attorney's fee except on the basis of quantum meruit or a quid pro quo, and the amount of fees should pose an amount that public standards will approve for the work done, the time consumed, and the skill required. So much may be said of evidence based on schedules that is not shown to bear a proper relation to these elements as they effect the case at hand, Adler v. Schekter, 197 So. 2d 46 (Fla. 3 DCA 1967).

The Supreme Court, citing Lee Engineering v. Fellows said, "We must reverse the fixing of attorney fees on a contingency percentage and remand for further consideration on this issue alone". The factors that go into a fee cannot be eliminated from a fee award, even if stipulated to, Galarneau v. Caroly of Miami, 299 So. 2d 579 (Fla. 1974).

An agreement by a party to pay an attorney's fee of an unspecified amount is an agreement to pay a reasonable attorney's fee, Farnell v. Farquhar Mach Co., 114 So. 506, Fla. 1927), Boyette v. Reliable Finance Co, 184 So. 2d 200 (Fla 2 DCA 1966), Trustees of Cameron Brown v. Tavormina, 385 So. 2d 728 (Fla. 3 DCA 1980).

May the holder of a note which provides for an attorney's fee without specifying a percentage of the principal in event of enforcement be allowed a 10% fee without proof of the reasonableness of the amount of the fee? s. 687.06 Fla. Stat. 1977 authorized the assessment of an attorney's fee of 10% of the principal in every case where no more than 10% was requested by the successful plaintiff. It is often the case that where there is an agreement to pay a reasonable attorney's fee, it is shown that a fee of more than 10% is reasonable. Plaintiff would retain that right but deny to the defendant an opportunity to be heard when the defendant could show that a fee of less than 10% was reasonable. In our view such an interpretation of the statute would render it unconstitutional. The statute as written simply provides that where a party agrees to a fee of 10% or less, that fee need not be proved reasonable, Sepler v. Emanuel, 388 So. 2d 28 (Fla. 1980).

Even pre existing fee arrangements between a lawyer and his client may be disregarded if the result is an unreasonable fee, Pavlik v. Acousti Engineering Co, 448 So. 2d 638 (Fla. 4 DCA 1984). In a concurring opinion Judge Glickstein wrote, "Second, I am as concerned with mechanic's lien claimants' access to the courts as I am for a financially troubled spouse whose husband, the breadwinner, has taken a walk. A short-changed claimant and a financially desperate spouse are often in the same position because the party holding the purse strings removes the purse. It follows that in both situations, the ideal is for the client and the lawyer to draft an agreement that provides for a reasonable hourly rate, with the understanding that the Code of Professional Responsibility may justify collection of more from the adversary, Pavlik, infra.

Last, Davis v. Keeto, 463 So. 2d 368 (Fla 1 DCA 1985 is oft quoted for the proposition that a claimant, without the aid of comeptent counsel would be as helpless as a turtle on its back. The case has much more to offer. The amount of benefits obtained, though an important factor to be considered in setting fees, is not the only factor and does not set the maximum amount that can be awarded as a fee. Were it otherwise, the E/C could resist payment of smaller claims, and those claims would be virtually uncollectable, Davis, infra.

Remember too that Lee Engineering Co. v. Fellows, 209 So. 2d 454 (Fla. 1968) commented that there could be no set mandatory fee schedule in Florida because of the economic disparity from one end of the state to the other making the fee schedule reasonable in one area but unreasonable in others.

The word "reasonable" remains in s.440.34, you just can't see it.

Sunday, May 10, 2009

My Letter to the Herald: Gov. Crist, Veto Comp Bill

Dear Editor:
Some things are below our radar because they fall into the category: "It won't happen to me". We don't think about Tornadoes because they are so rare in Miami that : "It won't happen to me". Same with earth- quakes and Tsunami's. Even Global Warming and Drought fit into this category. We don't think much about the bridge we are traveling over collapsing, or a tree falling on our car. Personal disasters, shootings, serious accidents, all happen to the other guy, not me.
This is the reason the Insurance and Business Lobby can get away with pressuring the legislature and the governor to enact laws that reduce the ability of the ordinary citizen to recover for disasters and injuries. It happens all the time to the Insurance industry and to Business. They get hit with having to pay for those rare instances where one of us gets hurt. Or for the 100 year Hurricane, or the faulty construction of the bridge. It's big money to them, but it won't happen to me. So we don't speak up when our rights are threatened. It's going to happen to someone else. Not me.
Well it does happen to all of us. My clients consist of those who have been hurt on the job. The widows and orphans of those killed on the job. The victims of those freak accidents that would never happen in a million years. Getting hit in the eye by a football? Falling down while running to respond to a false fire alarm. Getting hit in the face by an exploding tire. Falling off a ladder. Quadripelgia, blindness, death. All happen at work. Even in the safest of jobs. Teachers get assaulted and raped. Secretaries fall off faulty chairs and break their necks.
This past week the legislature again bowed to the pressure of business and insurance and passed SB903. Just to show how brazen they can get, they removed the word "reasonable" from the workers' compensation law. That was this years "reform". Unless a miracle happens our wonderful, kindhearted, bipartisan, Senate seat seeking governor, Charlie Crist, will sign this bill to insure he gets big contributions to his statewide campaign from Big Business and the Insurance lobby. How can he resist? Why should any of us care? It won't happen to me? WIll it? Well it sure as heck will happen to some of you. You'll get killed and your wife and three kids will be denied the minimal death benefits provided by the workers' compensation act. Up to $7,500.00 for burial and a total of $150,000.00 payable to all dependents over aperiod of time. At this years maximum compensation rate, that period of time is less than 4 years. That's it. Nothing more. And you can't sue the employer even if the grossest of employer negligence caused the death. Death from on the job injuries happened to over 400 Florida families just last year. Yes, it can happen to you and me. And the worst part is the Insurance carriers deny payment of these workers' compensation claims more than ever according to a report just released by the Division of Workers' Compensation, part of the Department of Financial Services.
So what if it does happen to you and the carrier denies your claim for medical care? For weekly indemnity benefits while you recuperate? Or denies widows and orphans benefits? You get a lawyer to fight for your rights? Wrong. Not if Charlie Crist signs that bill removing the word 'reasonable' from the law.
The part of the law that contains the word 'reasonable' is the part that requires the insurance carriers to pay your lawyer's fee when your lawyer is successful in obtaining benefits for you that were denied. Up until this session of the legislature, that lawyer was entitled to a 'reasonable' fee, set by a Judge, depending upon the benefits obtained for the client or the amount of work involved in defeating the insurance carrier. Once the word 'reasonable' is removed, the only fee a lawyer for in injured worker or the heirs of a decesed worker can be paid is tied to a formula set by...the legislature! Here's how it works: You are a teacher. First year on the job. May 2010 rolls around and you are asked to unload boxes of books from a cart and carry them to a storage area. It's over 90 degrees. While doing so you collapse and die. The school board's insurance servicing company denies that your death is related to your job and refuses to pay your funeral expenses or death benefits to your wife and 3 kids. You seek out legal help. Since death benefits are 'capped' at $150,000.00 plus $7,500.00 for funeral expenses, the lawyer who takes your case knows that the bill Charlie Crist is about to sign will 'cap' your lawyers fee, payable by the school board if you win the case, at $16,500.00 pursuant to the fee schedule that must be used. The school board's lawyers can earn as big a fee as they can charge for the hours put in defending your claim. They can run legal circles around your lawyer and paper him to death. They can delay and delay and in the end make it so unprofitable to represent the interest of the widow and the children, that that lawyer won't even take your case to begin with. The liklihood that you can handle the claim yourself in nil. You get nothing.
But if Charlie Crist vetoes SB2703, all injured workers and their dependents whose benefits are unlawfully, unreasonably or just plain mistakenly denied, will be able to get legal representation. The parties will still not be on an even footing since the insurance industry has far more resources to fight claims than contingent workers' compensation lawyers have to prosecute those claims, but at least the worker's lawyer konws that if he gets into a big battle over a small amount of benefits, he will get a 'reasonable' fee for his efforts.
Repealing the word 'reasonable' does just what big business and insurance want it to do, make fees for injured workers lawyers 'unreasonably' low in the vast majority of the claims. If there is no one to fight for the rights of injured workers or their families, will workers' compensation benefits get better and easier to obtain? Will insurance carriers deny fewer claims? Will they become the beneficent payers of all legitimate claims? As Sarah Palin might say: "You betcha" (they won't).
The famous phrase, oft quoted from Shakespeare, "Let's kill all the lawyers" was meant to describe how it would be possible for those in power to take away the rights of those being opressed. Make sure they couldn't get lawyers. Modern Shakespeare has played out in Tallahassee these past 9 weeks. Take way the lawyers from those injured at work but allow the insurance companies to have all the lawyers they want and pay them whatever they want to defeat claims. Seems fair only if you are Big Business or Insurance.
Almost 100 years ago in this country, almost 75 years ago in Florida, the right to sue one's employer for negligence and have a jury render a judgment, was taken away using the police power of the State. The replacement of the constitutional right to access to the courts was the workers' compensation scheme. It was supposed to be a fast, sure and adequate benefit replacement. It is neither fast, nor sure, nor adequate. It hasn't been so since the Report of the National Commission on State Workers' Compensation Laws said so in unanimous agreement in 1972. That's right...1972. And that's right...Unanimous. The commisison was set up by the 1970 OSHA law pushed by then President Nixon. That's right...Nixon, a Republican.
So maybe it won't happen to you. Or maybe it will. Why take the chance? Get involved now before you have to try to get a lawyer to represent you. Tell Governor Crist to veto SB2703. Tell him to leave the word 'reasonable' in the workers' compensation law and not make the workers' compensaiton scheme any more unreasonable than it already is.

Mark Zientz

Monday, April 20, 2009


For roughly 2 months each Spring the Florida House and the Florida Senate meet in Tallahassee to take care of the business of the State. They must pass a balanced budget. It doesn't actually have to be balanced. If they don't get it right, they come back again and again to raise more money or cut more state spending so that at the end of the fiscal year, it comes out right.
This year was especially hard, what with the economy tanking and the governor's pact with the Seminole Vegas Indians thrown out by Florida Supreme Court. One part of the budget fix is cutting the pay of employees of the Division of Workers' Compensation, the Judges of Compensaiton Claims and their Mediators. These specific cuts do nothing to help the budget crisis because the money used to pay the costs of running the workers' compensation system comes from a trust fund that contains only money from employers and compensation carriers. There is no tax money in the Administrative Trust Fund. Are our Judges who are grossly underpaid for the amount of work they do supposed to suffer pay cuts in sympathy with other employees of the state? If so, that is no reason to give insurance carriers and large self insured employers a break on their contributions to the fund. Apparently none of the legislators understand this issue, or don't care if they cut costs for insurance carriers and big employers.
Another area that the legislature is making a top priority (according to the House Speaker) is removing the word "reasonable" as it describes claimant attorney fees in the workers' compensation law. By removing the word "reasonable" the legislature hopes to firmly install a fee schedule for the claimant's lawyers that was overturned by the Florida Supreme Court in 2008. By removing the word "reasonable" the law will require a fee be allowed for an injured worker's lawyer that cannot be reviewed by any judge. Not a JCC, not a circuit court judge and not an appellate or Supreme Court justice. The legislaure will have taken over the regulation of lawyers in this one field of practice. The fees allowed can be as unreasonable as the one that caused the court to strike down the first attempt by the legislature to mandate a mathematical fee which is not in any way calcualted using traditional methods of attorney fee determinations. It ignores the hours spent in the work and the skill and experience of the practitioner. It also ignores the amount spent to defend the claim and the number of hours and fee charged by opposing counsel, who lost the case. Claimant's attorneys only get paid when they win. Defense attorney's get paid for every case they handle, win or lose.
Apparently the Republican dominated legislature, with few exceptions, doesn't care if it passes and sends to the Governor another law that will be thrown out by the courts. The time it takes to get a court decision (five years for the last one) will allow insurance companies to make excessive profits for a few more years and prevent injured workers from getting legal representaiton for all but the biggest cases with the most benefits. If a workers' compesation claimant's lawyer obtains $100,000.00 in benefits (the rare case) after litigating successfully against the insurance carrier with unlimited funds for defense, the fee will be set at $10,750.00.
The defense attorney can be paid whatever the carrier agrees to pay. In the 2007/2008 calendar year defense attorney's made almost 100 million dollars more than claimant's lawyers!
More after the session ends.