Disability Law

Florida Justice Association Files Amicus Brief in Murray v. Mariners Health

By David A. McCranie, Esq.

The Florida Justice Association (formerly known as the Academy of Florida Trial Lawyers) has filed an amicus brief in support of the petitioner in Murray v. Mariners Health.  You can read their brief here. 

Unlike the petitioner, they limit their argument against the constitutionality of the 2003 amendment to §440.34 to contending that the amendment violates Art. I, §21, Fla. Const., the "access to courts" provision.  Here's my summary of their argument:

The legislature may not abolish a right without providing a reasonable alternative to recovery unless an overpowering public necessity can be shown.  As recently as 1991, the Florida Supreme Court held that the benefits available to an injured worker under the Florida Workers' Compensation Law continued to provide a reasonable alternative to the right of the worker's right to recover from his employer in tort.  See Martinez v. Scanlan, 582 So.2d 1167 (Fla. 1991). 

Since that time, however, the legislature has sharply reduced the benefits available to an injured worker in the workers' compensation system.  By way of comparison, the benefits awarded to Murray in this case amounted to $3,244.21, whereas a review of recent jury verdicts in tort claims involving injuries similar to those suffered by Murray have been as high as $2M. 

To illustrate, claimants must now contend with complex substantive issues such as "fraud," "major contributing cause," and "apportionment."  At the same time, the legislature has expanded the immunity from tort liability which is available to the employer and carrier.  And procedurally, injured workers now face daunting hurdles such as the requirement for specificity in petitions for benefits, as well as contending with the new  "offer of settlement" provision.  As a result of all of these changes, it has become virtually impossible for a claimant to navigate these waters without the assistance of competent counsel.

Part of the "trade off" for immunity from tort liability has always been the employer/carrier's liability for paying the claimant's reasonable attorney's fees in cases where benefits have been wrongly withheld.  But by limiting the amount of those fees in all cases to a percentage of the "benefits secured," the 2003 amendment makes it virtually impossible for an injured worker to retain competent counsel in cases where the benefits at issue are relatively small.  As a result, in small cases a carrier can simply withhold benefits which are rightfully owed to the claimant with impunity because he is powerless to challenge the carrier's actions, thus denying him the "access to courts" which is guaranteed by the Florida Constitution.

Full post as published by Florida Workers’ Compensation Law Blog on December 19, 2007 (boomark / email).