policy note { WORKERS’ COMP WINTER 2016 INFLUENCE | 95 “ THE COURTS SHALL BE OPEN TO EVERY PERSON FOR REDRESS OF ANY INJURY, AND JUSTICE SHALL BE ADMINISTERED WITHOUT SALE, DENIAL, OR DELAY.” So says the Florida Constitution’s Declaration of Rights. But there is an alternative: Florida’s workers’ compensation system, which offers redress for injury through its own specialized courts. Since 1935, the state has used the workers’ compensation nofault system to ensure injured employees get medical attention and return to their jobs without the expense of litigation, all at a price that doesn’t bankrupt business. However, some say the balance the system aims for appears to have been lost. In addition to assistance available to injured workers — medical, wage replacement, rehabilitation, van, cars, homes, prostheses, drugs, treatment for unrelated conditions to treat related conditions, medical equipment, and others — there are lifetime as well as permanent and total disability benefits (with cost of living increases); all of which come at no cost to employee. Nevertheless, a handful of business owners and insurers say two Florida Supreme Court rulings have re-interpreted the right of access to the courts. And they are now looking to the Legislature to fix it when lawmakers reconvene in March. In fact, the lobbying has already started, Florida Chamber of Commerce Executive Vice President David Hart said. The Chamber has convened a task force to draft a workers’ compensation fix. “I hope to be talking to a couple of members of the Legislature while they’re here in town about where we are and what their thinking is,” Hart said in an interview from Tallahassee. “I would anticipate that sometime during the committee meetings in, perhaps, December, we’d be ready to file a bill.” “It’s going to be a tenacious issue, because of very sharp differentiating interests,” said Rep. Bill Hager, a Republican from Delray Beach who has served on the insurance committee and has requested to do so next session. “I would say, ‘stand by’.” The immediate crisis involves a 14.5 percent increase in workers’ compensation insurance premiums that began to take effect Dec. 1. Businesses will realize the extra costs as their policies come up for renewal during the subsequent 12 months. The Chamber estimates the cost to Florida’s economy at $1.5 billion. A trial judge in Tallahassee enjoined the increase Nov. 25, ruling regulators and a rate-making council violated Florida’s open-government laws in approving it. However, the 1st District Court of Appeal stayed that ruling pending further argument. That rate-making body, the National Council on Compensation Insurance, or NCCI, files rates on behalf of Florida insurers. It points to those Supreme Court rulings for by far most of the increase. A major offender, in this view, was Castellanos v. Next Door Co., in which the court struck down a schedule for attorney fees in workers’ compensation disputes — mostly, a cap on those fees. The Legislature imposed this cap, tagged to the value of any benefits secured through litigation, through SB 50- A. That was in 2003, the last time the system underwent major reforms. Those opposed to the measure say it explicitly declares fees need not be “reasonable.” In fact, charges must be strictly tied to a contingency fee schedule based on benefits secured. It is a process similar to all Worker’s Comp Food Fight ILLUSTRATION BY ANDY MARLETTE
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