21 Fla. L. Weekly Supp. 1037a
Online Reference: FLWSUPP 2110FLOR
ORDER ON AMENDED MOTION FOR
SUMMARY FINAL JUDGMENT
FINDINGS OF FACT
“Now, in the system you’ve got in Florida now there’s no attention paid to lost wages. As far as I know, there’s no other state that has eliminated benefits for all classes of permanent partial disability in which those benefits are either based on actual loss of wages or loss of earning capacity. So that Florida stands out as being the only state that has constricted its benefits to permanent impairments”. The limited amount of benefits that are paid currently for permanent impairment are conservatively less than would have been available under the law in the seventies, and is markedly lower thatwhat’s paid in most other states. And certainly would have come nowhere near the standards that would be consistent with the National Commission’s recommendations”.
(“. . .the workers’ compensation law remains a reasonable alternative to tort litigation. It continues to provide injured workers with full medical care and wage-loss payments for total or partial disability regardless of fault and without the delay and uncertainty of tort litigation”, id. at 1171, 1172)
“Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have and actual, present, adverse and antagonistic interest in the subject matter, wither in fact or law; that the antagonistic and adverse interest are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity. These elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional power of the courts” (Appendix G) (Emphasis added).
“440.11(1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or admiralty on account of such injury or death…” (Appendix B)
“Where a right of access to the courts for redress for a particular injury (injury to future wage earning capacity) has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become part of the common law of the State pursuant to Fla. Stat. S.2.01, F.S.A., the Legislature is without power to abolish such right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown”, Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973).
“Moreover, it involves the right to be rewarded for industry. Art. I, s. 2, Fla. Const. It, therefore, is subject to strict scrutiny under either the Fourteenth Amendment’s Equal Protection Clause or [citing authorities] under Art. I, § 2, of the Florida Constitution”.
“One of the grounds of its concern (the workers’ compensation act in question) with the continued life and earning power of the individual is its interest in the prevention of pauperism, with its concomitants of vice and crime. And, in our opinion laws regulating the responsibility of employers for the injury or death of employees, arising out of the employment, bear so close a relation to the protection of the lives and safety of those concerned that they properly may be regarded as coming within the category of police regulations. “New York Central Railroad v. White, 243 US 188, 37 S. Ct. 247, 61 L. Ed 667 (1917). (Appendix L).
“(1) to see that workers in fact were rewarded for their industry by not being deprived of reasonable adequate and certain payment for their workplace accidents; and (2) to replace an unwieldy tort system that made it virtually impossible for businesses to predict or insure forthe cost of industrial accidents”, De Ayala v. Farm Bureau [Cas. Ins. Co.], 543 So. 2d 204, 206 (Fla. 1989) (emphasis added).
“This, of course, is not to say that any scale of compensation, however insignificant, on the one hand, or onerous, on the other, would be supportable.” Any question of that kind may be met when it arises”, New York Central Railroad, id.
“…remains a reasonable alternative to tort litigation. It provides injured workers with full medical care and benefits for disability (loss of wage earning capacity) and permanent impairment regardless of fault, without the delay and uncertainty of tort litigation”, Bradley v. Hurricane Restaurant, 670 So. 2d 162,164 (Fla. 1DCA 1996) [21 Fla. L. Weekly D757a] (emphasis added).
“If, as I think will likely be the case, a significant number of injured workers receive significantly reduced benefits because of section 440.15(5)(b), the courts might well conclude that because the right to benefits has become largely illusory, Florida’s Workers’ Compensation Law is no longer a reasonable alternative to common-law remedies and that, accordingly, workers have been denied meaningful access to courts in violation of article I, section 21, of our constitution”, Staffmark v. Merrell, 43 So. 3d 792, 798 (Fla. 1DCA 2012) (Webster, J., concurring) [35 Fla. L. Weekly D1839c].
“In my view, our concern with this potential “gap” (in disability benefits for injured workers who remain totally disabled on the expiration of temporary disability benefits) is not simply a humanitarian concern for particular claimants, but is based on our interest in avoiding a potential constitutional issue. The problematic nature of the cutoff of these benefits has long been recognized by Florida courts. For example, as noted by the majority, in Thompson v. Florida Industrial Commission, 224 So.2d 286 (Fla. 1969), the court recognized that in ceasing payment of temporary total benefits after 350 weeks even though claimant was still totally disabled, “(t)he Florida Workmen’s Compensation Law is inadequate in failing to provide for a situation such as this.” Under the current statute, (2006), temporary total disability benefits have been reduced to 104 weeks, section 440.15(2)(a), Florida Statutes (2006), 246 weeks less than the 350 weeks of benefits in Thompson”. Matrix Employee Leasing v. Hadley, 78 So. 3d 62 (Fla. 1DCA 2011) [36 Fla. L. Weekly D2625a] (Van Nortwick, J., Dissenting)(Appendix R)(emphasis added).
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