Fla's 2003 Reforms as they Pertain to Injured Workers

Monday, January 25, 2010 | 0

By M. Benjamin Murphey

“I am an invisible man…a man of substance, of flesh and bone, fiber and liquids—and I might even be said to possess a mind. I am invisible, understand, simply because people refuse to see me.” Ralph Waldo Ellison.

Perhaps, it could be more simply summed up as “[t]rue is it that we have seen better days….” The only certainty is that the future for injured workers in Florida is uncertain. The self-executing nature of the workers’ compensation system in Florida is under attack, and this will only result in additional injury to Florida’s injured workers.

Prior to 1990, the Judges of Compensation Claims (JCCs) had the authority to hear disputes regarding an injured worker’s average weekly wage, unpaid medical bills, unpaid medical mileage, unauthorized rehabilitation, maximum medical improvement, plus all facets of medical care (i.e. changes in doctors, independent medical exams, the need for subsequent referrals, and testing). Injured workers and their attorneys were less litigious, and the penultimate goal (second to healing the injured worker) was getting the injured worker to maximum medical improvement so that the claim could be settled.

When it passed the 1990 and 1993 reforms, the Florida Legislature repeatedly whittled away at the power of the JCCs. With the advent of the Employee Assistance Office, the Agency for Healthcare Administration, mandatory managed care, and requests for assistance, the legislature caused a “splintering” of the workers’ compensation system. Placing these new hurdles between the injured worker, their benefits, and the JCC, caused a delay in payments and a delay in the resolution of disputes. This caused the dissatisfaction of the injured worker to rise. In fact, injured worker dissatisfaction was proffered as one of the reasons for increased attorney involvement in Florida.

The 2003 reform will limit an injured worker’s ability to retain legal counsel, access the courts, and quickly resolve disputes regarding compensation benefits. This author submits that by passing this reform the legislature is pushing an already delicate situation closer toward critical mass. However, the 2003 reform could face some constitutional challenges. The mandatory limiting of psychiatric impairment ratings to one percent might violate both the due process and equal protection guarantees of the Constitution of the United States of America. The limitation of attorney’s fees and denial of hearings—absent the showing of good cause—on claims involving only AWW issues, medical mileage, and claims with less than $5,000 worth of benefits in controversy might violate the guarantee of access to the courts provided for in the Constitution of the State of Florida.

“Florida’s workers’ compensation system [should be] affordable, efficient, and above all equitable.” Equity will not abound as a result of the 2003 reform. The system will not be more efficient. The system was already clearly profitable, and therefore affordability could be controlled by reducing profits, instead of reducing benefits, but the reformists have prevailed, and so: “[o]nce more unto the breach, dear friends, once more….” For the injured workers of Florida, let Tallahassee be their Harfleur. “Stiffen the sinews, [conjure] up the blood, Disguise fair nature with hard favor’d rage; Then lend the eye a terrible aspect….” Continue the fight for benefits in the courts and with the lobbyists. That is, for what benefits the 2003 reform has left for the injured worker, and finally never forget to “wait and hope.”

M. Benjamin Murphey is a maritme, admiralty and personal injury attorney for Lawlor Winston Trial Lawyers, based in Fort Lauderdale, Fla. This column was reprinted with his permission from the law firm's blog, http://blog.lawlorwinston.com/