You all know the story of the frog and the boiling water. Throw a frog into a pot of boiling water and he hops right back out. The shocking, sudden difference between the air temperature and the tempurature of the boiling water tells him immediately: this is BAD! Yet, if you take that same frog, and place him in a pot of cold water, then slowly bring it to a boil, he will sit there calmly and accept the slow rise in temperature until he finally boils to death.
Why is this story relevant to my life and work? Because I have watched the citizens of Florida — and America for that matter — get slowly cooked by their state and federal legislatures. Last month in Florida, a Leon County Circuit Court Judge, the Honorable Terry P. Lewis, had the temerity to enter an order temporarily enjoining, or suspending, portions of Florida’s new Personal Injury Protection statute — the so-called “No-Fault” automobile insurance required for all florida car owners — calling it an unconstitutional violation of the right to access to the courts.
As Judge Lewis points out in his order: “The fundamental right to seek redress from injuries received at the hands of another is a cornerstone of our legal system. This principle is embedded in our state constitution in Article I, Section 21.” He goes on to point out that “over the years…our representatives in state and federal government have tinkered with these fundamental principles and overridden or altered the common law which embodies them.”
As a little background regarding this argument and order, the Florida PIP statute (enacted in 1971) limits your ability to sue an at-fault driver for medical or lost wages to the extent that you are, or should be, covered by a PIP insurance policy. Furthermore, it prohibits you from recovering intangible harms and losses, such as pain & suffering, unless you can prove that you sustained a “permanent” injury. In other words, it restricts your right to file a lawsuit against the person or company that caused your harms and losses. Originally, Florida courts found this to be a fair trade. Give up some of your rights, but you have PIP coverage in place of those rights to compensate you. In January of this year, a new draconian PIP law took effect, further restricting those rights. Judge Lewis, in his order, stated that, in light of the recent changes to the PIP law, this trade was no longer a “good deal.”
Since this temporary injunction was entered, many people have written about it in the blogosphere. I want to discuss something else that has suffered a similar fate, but that no one ever cares about until it happens to them: workers’ compensation.
The Florida Workers’ Compensation Law was originally formed to provide compensation to employees who were injured on the job, in the course and scope of their employment, in the form of medical benefits and disability benefits. The “trade” here is two-fold. First, if you are injured due to the negligence of your employer or a co-worker, they are immune from a lawsuit for negligence if they have provided you with workers‘ compensation coverage. Second, it is a “no-fault” system (just like PIP), so you do not have to prove anything other that you were injured on the job. The idea was that you get would have access to quick medical care and lost wages, without having to sue anybody.
Today the statute still says it is to be a “self-executing” system, presumably so you are not forced to involve a lawyer. What a joke! I take that to mean that an injured worker should be able to navigate the system without the aid and assistance of a lawyer. Good luck with that. A non-lawyer — or even a lawyer for that matter if he/she doesn’t practice workers’ compensation law — has no idea what “major contributing cause” is. How about “apportionment”? Or what to do when your 104 weeks of temporary disability benefits run out, but you are still “off work” from your doctor. How about changing doctors? God forbid you have a fight with the insurance company. Good luck navigating the rules of evidence and the new cumbersome Rules of Procedure for Workers’ Compensation Adjudication. Check out the rules at: (http://www.jcc.state.fl.us/JCC/rules/)
So, is the system a still fair trade? You decide. Here is an example of how a workers’ compensation claim can unfold:
Let’s say you are an electrician. You are 48 years old. You have been an electrician for 26 years. You have a great job. You earn $1,500 per week, taking home over $1,100 per week. You have a wife, two kids and a mortgage. Your supervisor drives the truck you travel in for work and he is not a good driver, constantly speeding and cutting it very close on red lights. You have complained to both him and the owner of the company about this, and they have done nothing but told you to lighten up. Finally, one day the inevitable happens: he runs a red light and causes an accident with you sitting in the passenger seat. You are injured. You are taken to the hospital. You have a broken right hand/wrist from trying to brace yourself against the dashboard, and your back is really hurting. You are referred to an orthopedic surgeon.
The workers’ compensation carrier picks the orthopedic doctor. You go see him. He is terrible. He spends 2 minutes with you and doesn’t touch you in the first exam. You ask the carrier to see a doctor that you heard was very good with hand injuries. They say no. They get to pick your doctors. They authorize another doctor of their choosing. He is better, but not by much. You look him up online and find not-so-good reviews. You ask for yet another doctor. The carrier says no. You only get to change doctors once and they get to pick your doctor. The carrier pays you disability benefits while you are treating with the surgeon. Unfortunately, even though you were taking home $1,100, the maximum you can get in 2013 is $816 per week. Your check is often late. Several times it is over a month late. You call the adjuster and complain. He/She says: “Look, you are in the system. You’ll get your check.” You are now late on everything. You have late fees that you never had before. You miss a mortgage payment. All because you are not receiving your check on time. You call and complain again only to find out that your adjuster is on maternity leave and the insurance carrier has not assigned your file to a new adjuster. As a result, you go almost two months without a disability check. Does that seem fair? Is that acting in good faith? Well, it doesn’t really matter because workers’ compensation insurance companies are the ONLY insurance companies in the State of Florida that you CANNOT sue for acting in bad faith. They can let your file rot and you get squat.
Moving on to your medical care: everything the surgeon wants to do goes through Utilization Review. What’s that? Doesn’t matter to you. You just get to wait an extra 30 to 60 days for therapy, for MRIs, for surgery. You have surgery on your hand/wrist, but after surgery your grip strength is weak and your hand still hurts. You can’t use tools the way you used to. Doctor releases you and says “avoid repetitive use of the right hand.” You are right-handed. Your disability benefits stop because you don’t get disability benefits after your doctor releases you unless you are incapable of engaging in at least sedentary work within a 50 mile radius of your home – whatever that means. You try to go back to work, but you have been out for 18 months because of all the delays caused by your insurance carrier, so your employer had to hire someone else, leaving you without a job. Doesn’t matter anyway because with your hand the way it is, and your back still hurting, you can no longer be an electrician. You get impairment benefits of $4,080 dollars and the carrier tells you to have a nice life.
Oh, and your back? The doctor ordered an MRI of your lumbar spine, which only showed degenerative disc disease, no “acute” injuries, so even though the doctor says you need treatment for your back injury, the carrier denies it because the “major contributing cause” of the need for treatment is your pre-existing degenerative disc disease, not the car accident. Forget about the fact that you have never had a problem in your life with your back and have never seen a doctor for back pain. So you go out looking for work. You can’t do any of the things that you used to do. Your hand and your back still hurt. Retraining? Sorry, the State of Florida killed that option. Since you have a family and responsibilities, you take the best job that you can find that allows you to not use your hand repetitively and not lift over 40 pounds so that you don’t further injure your back. You make $10 an hour, $400 per week as a security guard for a gated community. You have lost $800 per week for the rest of your work life.
And there, my friends, is our “self-executing” trade off. You have given up your constitutional right to full and fair compensation (as determined by a jury of your peers), for this workers’ compensation system.
Seem like a fair trade to you? This is probably at least 25-30% of the workers' compensation cases in my office. It happens everyday to thousands of hard-working Floridians. Over the past 25-30 years, the workers’ compensation benefits available to injured workers have been slowly eroded to the point where the trade off ceased to be a “good deal” long ago. As a lawyer devoted to both personal injury and workers’ compensation claims, I see the contrast daily. The Florida Workers’ Compensation Law has been challenged many times over the past several decades, and each time, it has been upheld as constitutional. While I whole-heartedly agree with the opinion of Judge Lewis, it boggles my mind that our judiciary can see the restrictions on PIP — which are not nearly as limiting as those of the workers’ compensation law — as unconstitutional, yet leave standing a draconian workers’ compensation law that has essentially eliminated an injured workers’ right to anything remotely resembling fair compensation for their injuries.
So, given the example above, if you were asked: would you being willing to give up your constitutional right to sue your employer and/or your coworker for full and fair compensation for causing these harms and losses, in exchange for a system where:
you do not get to pick your doctor;
you do not get treatment for the aggravation of “pre-existing” condition that never required treatment before;
you have constant delays of 30-60 days or more for your medical care;
your disability checks are regularly late;
your disability benefit leaves you losing $300 per week while you get them; then
you lose $800 a week for the rest of your work life;
you get absolutely no compensation for your pain and suffering, or inability to play softball, bowl, play with your kids like you used to, losing your career;
if the insurance company acts in bad faith, you have no recourse; and
you have to hire a lawyer anyway, just to make sure you get what limited benefits are available to you.
My guess is that 99% of you would hop right out of that boiling pot of water.