The Legal Examiner Affiliate Network The Legal Examiner The Legal Examiner The Legal Examiner search instagram avvo phone envelope checkmark mail-reply spinner error close The Legal Examiner The Legal Examiner The Legal Examiner
Skip to main content

The Bombshell from Miami-Dade County Circuit Court is no doubt reverberating throughout the halls of Tallahassee this week and will most certainly dominate discussion at the 69th Annual Workers’ Compensation Educational Conference to be hosted this week by the Workers’ Compensation Institute in Orlando.

On Wednesday, August 13, 2014, Miami-Dade Circuit Judge Jorge E. Cueto, entered an order Granting a Petition for Declaratory Relief, wherein he struck F.S. 440.11 (2003) as “unlawful, invalid and unconstitutional.”

Ah!  The music is still ringing sweet melody in my ears!  It took a few days for the ringing to stop; hence, the delay in my post.

Last year, I wrote my thoughts regarding this issue when another Florida Circuit Court Judge declared the Florida No-Fault (PIP) Law to be unconstitutional.  Fewer than 18 months later, my prayers (and the prayers of injured workers’ across Florida) have been answered, thanks to excellent work by the likes of Plaintiff’s attorney, Mark Zientz, of Miami, and the assistance of Florida Workers’ Advocates (FWA) and Workers’ Injury Law & Advocacy Group (WILG).

Judge Cueto’s order in Padgett v. State of Florida outlines exactly how workers in the State of Florida have been slowly boiled to death by their own legislature.  For those of you who need a refresher course, here is a very brief background:

In the first half of the 20th Century, workers suffered greatly because our jury system takes time, and while they had a right to trial by jury to recover damages resulting from their employer’s negligence, many languished without medical care or income while awaiting trial; therefore, states across the country began adopting workers’ compensation laws to protect injured workers and help them gain quick access to medical benefits and lost wages.  Since employers were required to pay for this coverage in the form of workers’ compensation insurance, state law typically granted those employers immunity from lawsuits in negligence.  In other words, employers provide insurance which provides quick medical care and lost wages regardless of fault; employees give up their right to trial by jury to collect their full damages from their employer.

Win-win?  It was.  Then came the slow whittling away of workers’ rights, to the point where Judge Cueto has found that the immunity from lawsuits granted by Florida Statute 440.11 is no longer valid.  Injured workers are no longer getting the fair trade that was envisioned at the time the workers’ compensation law was enacted.  Floridians have forgotten that the right to trial by jury is a cornerstone of our legal system, and is embodied in both the U.S. and Florida Constitutions.  Judge Cueto points that out:

Trial by jury is the one fundamental right in the Declaration of Rights that is called “inviolate.”

Such rights should never be surrendered lightly.  Trial by a jury of our peers is the one thing that can and will always keep our governments (and the corporations that own them) honest.  What about “runaway juries” you ask?  Horse #@*%!  There is something called Remittitur!  If a jury goes whacko, then a judge ALWAYS has the power to REDUCE THE VERDICT.

In this case, Judge Cueto nails it.  Over the past forty-five or so years, our state legislature has “eviscerated” the Florida Workers’ Compensation Law to the point where it “no longer provides a reasonable alternative remedy to the tort remedy it supplanted.”  So, he entered an order finding that the provision of the Florida Workers’ Compensation Law which limits our fundamental right to trial by jury to be unconstitutional.  While a Circuit Court Order will not be binding outside of its circuit, the order is certainly persuasive elsewhere, and only time will tell what impact it will truly have on the Florida Workers’ Compensation Law and system.

Regardless of your allegiance, Judge Cueto’s reasoning is, in my opinion, infallible.  I could write pages and pages about the soundness of Judge Cueto’s order.  I would encourage you to read it.  It is a beautiful explanation of how and when a legislature can limit the fundamental rights guaranteed to us by our constitutions, and it is a beautiful example of the power of the judicial branch to keep “runaway legislatures” in check, just as they do so-called “runaway juries.”  This is exactly the type of check and balance envisioned by our forefathers when they wrote our constitutions.

Our forefathers lived in a time of true tyranny:  in a time when people in America did not have representation or a way to have their grievances heard.  It saddens me to think that in just the past fifty years, Americans have begun to forget why the Tree of Liberty was refreshed with the blood of patriots and tyrants; that they would stand idly by, watching that great tree whither.  Through generational apathy and ignorance, we are giving tyranny a foothold again.  Only through the wisdom of our forefathers, the independence of our juries and the courage of our judges are we fighting back.  In the voting booth, apathy and ignorance allow our legislatures (state and federal) to expand our government, placing more and more restrictions on our fundamental rights without so much as the raise of an eyebrow.  Judges like the Honorable Jorge Cueto are the only thing standing between the people of this great land and the same forces of tyranny our forefathers fought to escape.   The tragedy is:  those forefathers gave us the perfect tool to prevent this from happening.  We just have to use it:  the Vote.

The next election will see a Governor elected who will appoint more than a few appellate judges, each of whom will help shape the future of our state.  Do you know which candidate is most likely to support the rights of workers in the State of Florida and appoint judges who will uphold the constitution and protect your fundamental rights?  You better figure that one out and you better not sit home on election day.  If you do, you have only yourself to blame when you find yourself the victim of the increasing corporatization of our government.




One Comment

  1. Gravatar for Carri Powell
    Carri Powell

    I was insured Oct 2013 andstill under doctor care. the current workers compensation laws suck for those injuries that are perminate. I was a licensed Emt and took a job with the state of Florida as a correctional officer in training. dur9ng training i fell with another classmate and tore my abdomen muscle away from the abdomen wall, fractured my lower spine and have two bulging disks. i will be in pain for the rest of my life and be restricted from lifting more than 40 lbs. which means i will never be able to pick up a stretcher, cut someone out of a car or fight fire again. so what are my options? continued care and maybe a job offer that will have me traveling up to 60 miles for less money. nothing more. or if i settle maybe ill get 20k if im lucky. this is unfair due to my perminate injury. i would guess the work comp insurance feels that my restricted abilities are ok with them but my life is completely turned upside down. lower money and longer drivetime means less income to pay my bills. not to mention my licenses that now i have wasted my time and money to obtain. so where is the justice in workers comp? for the employers only.

Comments for this article are closed.