Published by Dan Leporati on August 14, 2014

Florida’s 11th Circuit Court has issued an opinion declaring workers’ compensation as an exclusive remedy unconstitutional. In a case brought before the court claiming that the current workers’ compensation law did not provide adequate benefits compared to the tort system, petitioners asked the court to decide if injured workers should have the right to pursue damages outside of the workers’ compensation system, thereby negating the exclusive remedy principle.

The basis of their case was that repeated legislative reforms have eroded the benefits initially intended under original workers’ compensation legislation.

The Petitioners included Florida Workers Advocates (FWA), and the Workers’ Law and Advocacy Group (WILG). WILG is a national organization of attorneys representing injured workers. FWA is an organization of attorneys representing injured workers in Florida. FWA‟s counsels are Mark L. Zientz, Esq. and Ricardo Morales. Ramon Malca, Esq. represented WILG.

Circuit Court Judge Jorge Cueto, in a strongly worded opinion, has declared the exclusive remedy provision, statute 440.11, unconstitutional. Judge Cueto cited the “numerous repeal of benefits since 1968″, and specifically the Florida reforms of 2003, whereby the act “no longer provides any benefits for permanent partial disability”. He wrote, “I find that the Florida Workers’ Compensation Act, as amended October 1, 2003, does not provide a reasonable alternative remedy to the tort remedy it supplanted. It therefore cannot be the exclusive remedy. 440.11 is constitutionally infirm and invalid.”

Florida’s Attorney General may now attempt to intervene for the purpose of filing an appeal. The AG has 30 days with which to file such an appeal with the Third District Court of Appeal.

According to a summary written by one of the petitioners attorneys, Mark Zientz, “in the likely event of an appeal” they plan to ask the Third District Court of Appeal to „pass through‟ jurisdiction to the Florida Supreme Court. This is because two other cases challenging the constitutionality of Florid‟s 440 statutes, Westphal and Castellanos, are already pending before the Supreme Court.