News & Resources

Keeping you informed is part of our mission.

Is the idea of workers’ comp as the ‘sole remedy’ on its way out? p4

Fri Aug 21st, 2015 on     Insurance Law,    

We are finishing up our discussion of a workers’ compensation lawsuit that could change the way Florida and every other state approach workers’ comp as an injured workers’ sole remedy. As we explained in our last post, the Court of Appeal focused on procedural issues. The appellate panel found that the complaining parties had no real argument with the state, had suffered no actual losses as a result of the workers’ comp statute. As a result, the court was not required to give a second thought to the constitutionality issue.

Interestingly, the lower court had addressed that very question. In that decision, the court had determined that although the initial parties were no longer involved, and although the court will not issue a decision that is unrelated to a case or controversy (the legal term is “advisory opinion”), the law did not entirely bar the court from addressing the constitutionality question.

No, the court said, the workers’ advocacy organization may not have a present controversy. However, the issue is “capable of repetition in the future and might evade review.” That is, the same situation could arise with other injured workers, and their employers could just as easily settle the matters so that the exclusive remedy provision would never be examined by a court. So, the court continued, there is a need for an answer to this important question. In essence, public policy demands that the court rule on the constitutionality issue.

The lower court proceeded to criticize the state workers’ compensation law. Over time, the law has been amended and tweaked to the point that it provides such inadequate protections to workers that removing their right to sue in civil court does violate their rights to due process. The 2003 amendments to Florida’s workers’ comp laws gutted the program’s benefits to the point that, in order to obtain adequate compensation, workers had to sue.

As we said, every state’s workers’ comp system is different, but other states are still watching closely to see what the Florida Supreme Court will do. The wait could last some time, though.


Cortes v. Velda Farms, 2014 WL 6685226 (Fla.Cir.Ct.), via WestlawNext

State v. Florida Workers’ Advocates, 167 So. 3d 500 (Fla. Dist. Ct. App. 2015), via WestlawNext

Super Lawyers
Florida Legal Elite
Top Lawyer - South Florida Legal Guide
Association of Corporate Counsel - South Florida Chapter
Back to top