Thursday, April 21, 2016

Dismantling By Courts

ProPublica declared that corporate America was dismantling workers' compensation piece by piece, state by state.

But 2016 is going to be known as the year that state supreme courts are the ones dismantling workers' compensation piece by piece.

We have seen a very active Oklahoma Supreme Court declare various provisions of that state's 2013 reform law unconstitutional. California courts haven't gone in that direction, yet, though there are still various challenges to the 2012 reform law.

Florida courts have been asked to review various elements of its workers' compensation laws, and yesterday the First District Court of Appeals, in what I think was a surprising decision to many, said that the state's statutory limits on the payment of attorneys for injured workers was unconstitutional.

Florida Statutes Section 440.34 provides that a claimant attorney is entitled to a fee equal to 20% of the first $5,000 in benefits secured for a client, 15% of the next $5,000 secured and 10% of any amount secured in excess of $10,000.

The statute further provides that a judge of compensation claims cannot approve any other payment arrangement, and Section 440.105(3)(c) criminalizes an attorney's receipt of any payment that has not been approved by a JCC.

Many states have similar statutes or regulations limiting fees for attorneys representing injured workers in litigation. These rules not only assume that the only compensation schema applicable to this group of service providers is contingency based upon disability, they essentially perpetuate it thus perpetuating the disability of America.

I'm not sure that the 1st DCA is cognizant of this hypocrisy, but the justices at least acknowledge that an injured person's right to representation in a highly complex, life altering, legal system should not be castrated by a fee regulation that discourages any representation.

That's what occurred in Martha Miles vs. City of Edgewater Police Department, 1D15-0165, 4/20/2016.

Miles was a police officer for City of Edgewater. She alleged exposure from toxic chemicals used to make crystal methamphetamine on two occasions in 2011, and she claims these events aggravated her asthma to the point it became disabling.

She filed a comp claim, but after she voluntarily withdrew it, the city filed a motion to recover the $3,860.82 it said it had expended in preparation to defend itself.

Miles then went to her union for help. The Fraternal Order of Police Lodge 40 said it was willing to pay a law firm for Miles $1,500 for the first 10 hours of work, and Miles agreed to pay the firm $150 per hour thereafter.

But Judge Mark Massey found Sections 440.105(3)(c) and 440.34 prohibited the payment arrangement being proposed by the union and Miles.

Miles refiled her claim and wound up going to trial without an attorney, where she told the JCC that she hadn't been able to find anyone who "works for free." She failed to introduce any evidence to support her claim at the trial, so the JCC denied it.

Miles then hired attorneys Michael Winer and Geoff Bichler to appeal the judge's decision (though it is not clear how these attorneys got paid to make the appeal, but not the trial...). Their argument on appeal was that Sections 440.105(3)(c) and 440.34 violated Miles' free speech right guaranteed under the First Amendment to the U.S. Constitution.

The theory is that free speech is abrogated if an unskilled litigant cannot get adequate representation if no attorney would take the case because of inadequate pay; ergo an individual's right to contract freely (subject of course to legality) is compromised.

In addition the court noted that individuals can waive their constitutional rights, so they certainly should be able to waive a lower standard law, i.e. a fee constriction statute.

But by far the most interesting point made by the court was its overall criticism of legislative attempts to limit litigation: "[In] a free society which attempts to allow individuals the intellectual prerogative to personally weigh the benefits and risk of exercising their statutory right to obtain redress for their injury, we hold that the rational intent to minimize workplace litigation cannot ultimately trump the benefits the public obtains by allowing an injured worker, or one who personally thinks she is injured, to seek redress under law."

Perhaps the Miles case will go up to the Supreme Court, which would make it the fourth case pending before Florida's highest court on constitutional issues, perhaps not.

The wheels of justice, it is said, turn very slowly. While ProPublica observed that state work comp protections have been dismantled over the past decade, perhaps what we are now observing is that those very laws are now in the process of being dismantled by the courts.

Who said work comp wasn't fascinating?


  1. So it's easy to conclude that both ProPublica and you are correct. That both corporate America, and our courts, are dismantling workers comp. Either way, it does not sound good for the injured workers nor our Grand Bargain.

  2. The Wheel of Justice does not apply to workers compensation, especially when there is this thing called Exclusive remedy brought in by unions for employers. Look to the Federalist's Society, the right wing lawyers who dismantled our civil rights for corporation rights. Our whole judicial system is run by right wingers & why we cannot get any justice & perhaps why the rights wingers like Mitch McConnell & Ted Cruz want to wait for a judicial appoint for the U.S.Supreme Court. Scalia who passed created the federalist society back in the 60's, starting at the University of Chicago & now has well over 40,000 thousand attorneys & judges at all levels of our so called justice system THAT are and have been pro business & anti worker. Reagan with his Merry men(right wingers) have done more damage to workers & their rights than at any time in Modern history & it stems out of the deep south confederates(precivil war) & looking at life today, it certaily & sadly reflects & reminiscent of that part of history where minorities , women & the older workers have been discriminated against by corporate America, where via comp, our labor laws are completely eroded & underminded. When working for Kaiser in the mid 80's, this became ever so apparent on who was being discriminated against AND THEN other corporations & states allowed themselves to be infected with the same racial & other biases resulting in monumental profits. Unions too took on bias tone because women were "taking " men's jobs. I remember a time when we were all being treated as equal after the 1964 civil rights law was enacted & that law was to be challenged by the Federalist's society but since they have incrementally, law by law, case by case taken away our civil rights as workers & given imunity to employers. Where else can you get hurt, disabled, left with no medical care, left to starve or die due to intentional neglect but by American corporations & none of them are held accountable by being put in jail? No one other breathing American citizen can get away with any of that.

  3. Let's not fuss about who gets credit for the demolition of workers compensation as currently practiced; let's just get it done in 2016 and save some lives in the process! ��