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Florida Workers’ Advocates, et al. v. State of Florida, Case No. 11-13661 (11th Judicial Circuit)

In FWA, a trial court addressed whether Fla. Stat. 440.11 (the exclusive remedy provision of the workers’ compensation act) was invalid as unconstitutional, in violation of the Due Process Clause of the 14 th Amendment of the U.S. Constitution, the Access to Courts provision of Article 1, Section 21 of the Florida Constitution, a violation of the Florida Constitution’s right to trial by jury and a violation of the Florida Constitution’s right to be rewarded for industry.

Fla. Stat. 440.11 provides: “The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or admiralty on account of such injury or death . . . .” The Court noted that the foregoing statutory provision was in place when the Constitution of 1968 was adopted and later ratified. The Declaration of Rights, including the right to be rewarded for Industry, “became part of the statutory and procedural law of Florida, which fixed the rights of the citizens, which rights could only be changed (not eliminated) and if changed must be replaced by a ‘reasonable alternative.’” The Court noted, however, that in 1970, there was a significant change to the rights of the citizens of Florida when the legislature repealed the right of an employee and an employer as contained in sections 440.05 and 440.06 to ‘opt out’ of coverage of the Act, a right which was present as of the date of the Constitutional revision in 1968. There was no reasonable alternative or additional benefit provided by the legislature in exchange for the elimination of the right to opt out. The Court found that the repeal of the opt out right became even more significant when the Florida Supreme Court, in 1973, moved the state from contributory negligence to comparative negligence, which would have prompted more employees to consider opting out. The 1973 Legislature made no changes to the Act to account for the change in the value of the ‘trade’: workers’ compensation exclusivity in exchange for the value of the lost tort remedy. Injured workers lost their right to ‘opt out’ without any concomitant benefit to take the place of that right.

The Court found that injured workers lost many more rights which were in place in 1968. One such loss is the loss of any remuneration or benefit for partial loss of wage earning capacity. The Court noted that this right was eroded over time, until it was eliminated entirely without any reasonable alternative in 2000. In 2003, the Legislature eliminated all compensation for loss of wage earning capacity that is not total in character. No reasonable alternative was put in its place. Thus, the Court ruled that the right to be compensated for permanent partial disability has been completely eliminated in violation of the constitution, and as required by, among other things, Kluger v. White, 281 So. 2d 1 (Fla. 1973).

The Court further noted that statutes are subject to strict scrutiny if they impinge upon fundamental rights. The Court found that the workers compensation act impinges upon several fundamental rights including the inviolate right to trial by jury. “Fundamental rights guaranteed by the Constitution were eviscerated by merely enacting a statute and relying upon the policy power of the state for validity. The test of constitutionality applicable to an act that invokes the police power of the state is variously described as proof that the act is necessary to protect public morals, health, safety or welfare. Such an act or amendment to an act based upon the police power of the state must be supported by proof of an overpowering or compelling public necessity requirement, the regulation must be necessary for the public welfare.” The test for ‘overpowering public necessity’ is whether the Act promote public morals, health, safety and welfare of the citizens. The court found that the workers compensation act fails to promote any of the foregoing. The court noted that under the strict scrutiny test, the statute is presumed unconstitutional, and the presumption can be rebutted by showing that the statute advances a compelling state interest. No evidence was submitted rebutting the presumption. The court added, that while there may have been a compelling state interest in 1935, no such interest exists today.

The court additionally noted that the workers compensation act may have been a reasonable alternative to tort litigation up to 1968. However, the “benefits in the Act have been so decimated since then that it no longer provides a reasonable alternative to tort litigation. The law in Florida has changed to comparative negligence. The Act is the most intrusive way to compensate citizens for injuries on the job by taking away access to courts and removing the inviolate right to trial by jury.” Accordingly, the court ruled that Chapter 440 is facially unconstitutional as long as it contains section 440.11 as an exclusive replacement remedy.


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