Attorneys Spar Editorially Over Fairness of Comp System

Friday, December 2, 2016 | 1

As a 14.5% rate increase goes into effect, two Florida attorneys are sparring editorially over whether state workers’ compensation laws are constitutional and fair to injured workers.

Mark Zientz

Coral Gables defense attorney Justin Parafinczuk argued in the Daily Business Review that the workers’ compensation pendulum has swung to favor workers because of a state Supreme Court decision that declared unconstitutional the state’s attorney fee schedule and cap.

Miami claimants’ attorney Mark L. Zientz said in a rebuttal Wednesday in the Daily Business Review that every Florida reform since 1974 except for one was intended to reduce benefits to injured workers.

Zientz was the attorney for Daniel Stahl in his unsuccessful lawsuit against Hialeah Hospital to eliminate Florida Statute Section 440.11, which makes employers and insurers immune from worker lawsuits.

“Anyone who seriously believes the system is fair and balanced or, as suggested by Justin Parafinczuk in a Nov. 15 commentary, more favorable to employees, should see me. I have a bridge in Brooklyn for sale,” Zientz wrote.

“What Stahl hoped to accomplish was fairness. Return the right to sue to employees as an option, a ‘choice of remedy.’ Employees had that right up to 1972. To that end, employers would be encouraged to provide safer workplaces. Suits are only successful if there is employer negligence,” he wrote.

Another legal challenge of the system, by Miami claimants’ attorney Mark Touby, found the attorney fee formula in Section 440.34 of Florida Statutes unconstitutional as a violation of due process under both the state and U.S. constitutions because it made no allowances to ensure attorney fees would always be reasonable.

That April 28 state Supreme Court decision, in Castellanos v. Next Door Co., was largely responsible for the 14.5% rate increase enacted Thursday by the Florida Office of Insurance Regulation.