Monday, July 28, 2014

Newton's Challenge

Push too hard, swing the pendulum too far, and the reaction becomes even more extreme.

One of the most famous attributes to Sir Isaac Newton was his elemental statement, "for every action there is an equal and opposite reaction," also known as his third law of physics.

We can't ignore physics - it is the Supreme Law and can not be rewritten or reinterpreted, is not subject to political manipulation or administrative regulatory action.

Newton's Laws of Physics are immutable and they govern everything on Earth, and beyond.

Workers' compensation laws govern only a specific geopolitical entity and those that are subject to that entity's laws. Workers' compensation laws get rewritten, reinterpreted, are the subject of politics and distorted through administrative regulation.

And when a state's workers' compensation laws come in conflict with Newton's Laws of Physics, it's a huge fight ...
Sir Isaac Newton
It's no secret that I have been of the opinion that workers' compensation is in trouble, not just in California, but across the nation, because in my observation the laws are failing to deliver any longer on the original deal: delivery of swift and adequate medical treatment and income benefits to people injured on the job in exchange for employer's immunity from civil suit, for a fair and reasonable price.

Florida, where next month about half of the workers' compensation nation will converge for WCI's 69th Annual Educational Conference, is one state where this collision is playing out in several venues: there's the Westphal and the Castellano cases pending in the state supreme court challenging the limitation on attorney's fees.

And now there is a suit at the trial level where the plaintiff is seeking declaration that the entire system has become unconstitutional over time - that the various reforms over the many years the system has been in existence has served to devalue the workers' compensation program to such a degree that it no longer can be said to meet its constitutionally declared objectives.

The plaintiffs in Julio Cortes vs. Velda Farms allege that the comp system became "unconstitutional as an exclusive remedy in stages," as lawmakers made changes that slowly eroded the benefits and protections available to workers.

The Cortes plaintiffs argue that up until 1968 parties could "opt-out" of participating in the comp system, but when workers' compensation became the exclusive remedy for industrial injuries in 1970, lawmakers did not provide workers with anything in exchange for completely taking away their right to sue.

They further allege that in October 2003 workers lost the ability to receive medical care and compensation for a partial loss of wage-earning capacity. The elimination of partial loss of wage-earning capacity benefits was not replaced by any substitute benefit. "Nothing," is what workers got in exchange for the wholesale loss of an entire category of benefits, the plaintiffs allege.

"Injured workers now receive permanent impairment benefits pursuant to Florida impairment guidelines and nothing else unless the employee is permanently and totally disabled," they argue, and the "limited amount of benefits that are paid currently for permanent impairment are conservatively less than what would have been available under the law in the '70s, and is markedly lower that what's paid in most other states," they add.

Velda defended against the claim on the basis that workers' compensation was Cortes' exclusive remedy. The Florida Workers' Advocates and the Workers' Injury Law & Advocacy Group intervened and provided support, asserting a claim for declaratory relief as to the constitutionality of Section 440.11.

When Velda abandoned its exclusivity defense, FWA and WILG successfully moved to sever the declaratory relief cause of action from Cortes' suit.

Since then the trial judge has issued an order joining the State Attorney General to give the state an opportunity to be heard prior to ruling on a motion for summary judgment brought by the plaintiffs.

At the heart of plaintiff's argument is a 1973 Florida Supreme Court case called Kluger v. White which they are asserting for the principle that anytime the Legislature takes away a right that had previously been guaranteed to the citizens of the state, it must provide a "reasonable alternative."

Using the Kluger case for such a proposition may be overextending that cases holding: that the government cannot take away a remedy that had existed under statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida or under the common law of England as it existed as of July 4, 1776.

Nevertheless this is a huge challenge and likely a fight that is going to continue for some time. The plaintiffs have told WorkCompCentral that even if they win at the summary judgment level it is still just "round one of a 10-round fight."

Thus far any challenge to workers' compensation's constitutionality has been the purview of injured workers but I suspect it won't be long until some employer at some point also challenges the constitutionality of the system for failing to deliver on the original value proposition.

The proponents in these Florida cases have considerable challenges ahead of them, but the plaintiffs are tenacious and determined. With new laws creating new rights and liabilities for both employers and workers, such as FMLA, ADA, ACA, etc., the relevancy of workers' compensation is going to be tested in both practical, and legal, circles for some time to come.


  1. Reading this article, I become a little bit scared of what territory we are going into in America. It seems that the worker is being under-represented while the corporations have hold on the law and what policies get pushed through. I see a glimmer of hope in Seattle where they have voted to gradually raise the minimum wage to $15 an hour. Along with that, smaller businesses will be rewarded for providing healthcare. I am interested to hear what you think about this plan. Do you think this is a good thing for workers? Do you think it is enough, or do you think we need to push D.C. to create more policies like this? Thanks for the post!
    Hickory Poscery |

    1. I live and worked in Seattle. And the 15 thing seems like a shame. I have tried to get all those folks to help me and to use their 3rd party status to bring fourth this important issue that does harm labor generationaly. I know first hand now... IT seems as though folks are picking up this populus idea of paying folks more, which the folks are demanding and will get any ways, in the long run... so all the Dems and all our Union Leaders and even the third party folks all say either coms is not broken it is fine, or it is broken but it has to be that way, for to fix it would be more than the system could bear.

      WE Need federal law to step in.; The Corps are using state med tort laws ect... to harm labor, and those harmed are forced through decades of legal battles.... the Grand Bargain no longer exist's, as is. Our unions all side with industry over the heath and well being of the workers, they say they are their representing... Who is allow folks to take away our grand bargain, and then saying nothing and even telling us it has to be this way... Folks being harmed for profit. So that the whole system does not fall apart. Hmm? As an injured labor, who folks did trying to omit the truth in order to deny my care, yet hide behind the laws, for the harm they have created for me and my family.. IM NOT a HAPPY camper.... one man destroyed my life with his pin and bias gate keeping ways that are working in the interest of industry and not the workers, who it was intended to be there for. So please do ask all your local leaders running for office... Do you think com is broken? And if so, what will you do to fix it? And some will tell you It can not be fixed.. Why can a system that is know now to be harming people all for profit. not be fixed? IM not buying it. And neither should any other workers out there who VALUES our GRAND BARGAIN that some snaky folks have sold off while the laborers were busy working.

    2. Oh, and one more thing... I guess I watched to much Columbo. But I really wanted to thank MR. DePaolo and all the folks at WorkCompCentral for reporting on the TRUTH. It may not fix things immediately but it does help to know that folks out there do know the truth now. And that does help with the emotional pain that the injured workers suffer from and of course never do get compensated for. So validation in the form of truthful honest reporting, really does help with the healing process. For now. Peace and thanks for all you do. The Fruits of your labor are valued.

    3. Do you know of a layer in WA State that will stand up and fight for the workers. For all I have talked to, say this is not a fight worth fighting, and will not take up the fight?

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    5. I just spoke with another WA State Workers Comp Attny. and she said she does not take on that kind of a fight for workers. She helps them get the services they need in comp but is unwilling to fight for those being cheated. Hmm? She makes a great living off comp. but does not want to help the workers being harmed by it? Hmmm? And when I mentioned WorkersCompCentral and all the new cases coming to light now.. She says she never heard about any of that going on, and she does not do that kind of litigation. So in WA if your case is not big enough, or folks think your not harmed enough, no lawyers will stand up and fight for you or labor, that has lost it's grand bargain. I guess she is happy with it being broken and harming some, for it provides here a nice living, and the really severaly injured do get helped, who cares about all the low line injuries or those seeking justice and care for them.

      I call the mal practice lawyers they say I don't do comp, I call the comp lawyers they all says we don't do mal practice, and none want to help the abused class and abused injured workers in WA STATE. Folks being denied justice to a point of insanity. IS that really good, and why will NONE OF THE LAYWERS in WA STATE speak up for an un represented class.... the injured worker.