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Sunday, February 8, 2015

An Update on Florida's Constitutional Challenges to Workers' Copensation

Recent litigation in Florida has raised much interest in some very high profile constitutional challenges to the workers' compensation system. In a recent blog post, David Langham, Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims and Division of Administrative Hearings provides an analysis of recent developments. Today's post is shared from

A Florida Constitutional Update

It happened again yesterday. An observer from several hundred miles away wrote to me about what has become known as "Padgett." Padgett has a lot of names, officially it isFlorida Workers Advocates v. Florida, but much of the country seemingly just calls it "that constitutionality case down in
David Langham is the Deputy Chief
Judge of Compensation Claims for the Florida Office
 of Judges of Compensation Claims
 and Division of Administrative Hearings

There is much happening in Florida workers' compensation right now. I hear a fair amount about it from around the country. Before D-day, Dwight Eisenhower told his troops "the eyes of the world are upon you." This is not of that magnitude, but it is apparent that the eyes of the workers' compensation world are upon Florida.

This spring may bring distractions. There is the legislative proposal on drug and alcohol in New Mexico accidents. There is the discussion of an "Oklahoma Opt-Out" in Tennessee's legislative agenda. There are drug formulary proposals, treatment guideline proposals,Marijuana questions, and even immigration issues. One has no trouble finding "hot topics" in workers' compensation this year.

But, the inquiries keep coming on Padgett/Florida Workers' Advocates v. Florida. It is Florida Circuit Court decision out of Miami. Many people I run into across the country do not appreciate the magnitude of Miami. Nineteen and a half million people live in Florida, we are the third most populous state behind California and Texas. Over two and half million of those Floridians live in Dade County, in which Miami is located. Dade county is more populous than fifteen of the United States.

In Florida, our general jurisdiction trial courts are called Circuit Courts. There are twenty Circuits, most containing multiple counties. But Dade is the only county in the Eleventh Circuit. Other single county Circuits include Hillsborough/Tampa, Palm Beach/West Palm Beach, Broward/Ft. Lauderdale, and Monroe/the Florida Keys.

Our Florida appellate courts are called District Courts. There are five Districts. The largest geographically is the First which stretches from Pensacola/Alabama to Jacksonville/Atlantic Ocean, the width of Florida. It is the First District that is statutorily charged with hearing all workers' compensation appeals in Florida. The Third District Court by contrast includes only two Circuits, essentially Dade and Monroe Counties, that is Miami and the Florida Keys.

It was in the Eleventh Circuit that Judge Cueto rendered the trial order in Padgett. Some question, "as it is a workers' compensation decision, why is it not heard by the First District?" A fair question. Appeals in Florida generally are heard in the District responsible for the Circuit from which the trial decision comes. The First District jurisdiction over comp cases is a statutory exception to that general rule, applicable to the decisions of administrative judges, the "judges of compensation claims," and inapplicable to decisions of the Constitutional Courts, such as the Circuit Court.

Padgett is a decision by a Circuit Court. There, someone sought to sue for damages against an employer, a tort case. That person's employer claimed the suit should be dismissed based on workers' compensation exclusive remedy under Chapter 440. Thus, a civil suit, decided by a civil judge, and not a "workers' compensation decision" per se. Thus, the appeal path flows first to the District Court geographically responsible, the Third District, and perhaps from there to The Florida Supreme Court

There was much discussion after entry of the trial order, regarding where the case would proceed. In October, I published Now We Know Where Next Padgett will be Decided. That described how the Third District could have passed on Padgett and certified it directly to The Florida Supreme Court for determination. There were many prognosticators who predicted and supported the Third doing so. However, the Third District denied that suggestion and has undertaken to hear the case.

If the Third District reverses the Circuit Court determination, the Florida Supreme Court may review that decision. However, if the Third District affirms the Circuit Court, then the Florida Supreme Court will have to review that decision. Make no mistake, review does not always mean what people expect. If it is reviewed by the Supreme Court, that review could result in a written opinion of the Supreme Court, with explanations and edification. That review could instead result in a cursory opinion that is supportive of whatever decision the Third District renders.

The Florida District Courts each have a website, the Third District On that site, there is a tab for "online docket." The page defaults to searching by case number, which for this case is 14-2062. Alternatively, you can change to a "name" search and search either for last name "Padgett" (first name Elsa), or "Florida Workers' Advocates," and find the case docket.

The docket will show you that in November the Court allowed the record to be supplemented. In December, the record was corrected. In January, the initial brief on the merits was filed, as were Amicus (friend of the court) briefs by The Florida Chamber of Commerce and Associated Industries. Since then, there have been some extensions of time granted, but nothing further of a substantive nature.

Meanwhile the constitutionality of specific sections of the Florida Workers' Compensation Law remain pending. An overview is in post from last fall, There's No Other Place I Wanna Be. The Florida Supreme Court has Castellanos and the "companion cases" under review. These may address questions regarding attorneys fees in Florida workers' comp. The decision on these cases is anticipated in early summer 2015. There is ample prognostication and prediction in the community that is workers' comp, but no one knows the outcome.

There is a challenge to the criminality under Florida law of the process of obtaining employment. As I explained in Brock is gone, is Hector Next this is a challenge regarding the provisions of Fla. Stat. 440.105(4)(b)9. This states that "knowingly" presenting misleading information as "evidence of identity" to obtain employment or to seek worker's compensation benefits is a violation of the law. Attorneys are challenging the constitutionality of this provision. The review by The Florida Supreme Court in bothBrock and Hector have concluded without relief and the defendants have sought review of The United States Supreme Court. The Court will conference to discuss Brock in February. Whether it elects to accept the case for review remains to be seen.

The Florida Office of Judges of Compensation Claims and the Workers' Compensation Institute will present "Workers' Compensation in the Year of the Supreme Court" at the Florida First District Court in Tallahassee on Friday, February 6, 2015. These and many other issues of interest and importance to the Florida workers' compensation community will be presented by an incredibly talented and diverse faculty from around the state. A sell-out crowd will make this a standing-room only event.

Watch this post for highlights from the program.