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.