So concludes a five-year legal battle in a closely-watched workers’ compensation claim filed when a 53-year-old city firefighter suffered a serious back injury while moving furniture as he battled a blaze. Plaintiff was totally disabled and unable to work. But state legislators overhauled the state’s workers’ compensation system back in 2003 amid pressure from business and insurance lobbyists, ultimately cutting off temporary total disability benefits after just two years.

As plaintiff’s attorney later told the Orlando Sentinel, “For anyone that had continued disability, this is an important thing. You can’t arbitrarily say people aren’t going to get benefits after a magical time limit like this.” 

This is significant for those who have suffered a work-related personal injury because as a recent in-depth investigation by ProPublica revealed, worker benefits within the entire workers’ compensation system – the “grand bargain” between workers and their employers – has been eroded across the country in the last decade. The trade-off was always that workers were to be granted access to a no-fault system of benefits for work-related injuries, while forfeiting the right to sue the employer for negligence. Those benefits have been slowly chipped away by legislators in state after state, and yet, workers still don’t have the right to sue their employer.

The Westphal decision made it clear that when workers’ compensation is the exclusive remedy to litigation, it must function as a reasonable alternative. Here, it did not. The state high court ruled that under article I, section 21 of the Florida Constitution, which prohibits denial of access to the courts, is trampled with this arbitrary cut-off date because it deprives the injured worker of disability benefits under these circumstances for an indefinite amount of time. Further, the court called Florida’s 1st District Court of Appeals’ effort to spare the statute from being deemed unconstitutional “valiant,” but ruled the judiciary does not have the authority to rewrite a statute that is plainly written – even the point is to avoid that law being found unconstitutional.

Specifically, the statute says that once a worker reaches a maximum of 104 weeks or maximum medical improvement – whichever comes sooner – the worker’s temporary total disability benefits are to cease and the injured worker’s permanent impairment shall be determined (F.S. 440.15(2)(a) ). However, the statute fails to ensure the worker is at that time legally entitled to receive permanent disability benefits. Neither does it provide that the worker will be automatically deemed to be at maximum medical improvement, based on the fact that temporary total disability benefits have stopped.

The end result, the court noted, is that the law severs disability benefits from workers at a critical juncture – when the worker can’t go back to work and is totally disabled, but the employer’s chosen physicians decide the worker might still medically improve.

The court was careful to say that in finding this provision unconstitutional, it does not mean the entire workers’ compensation system in Florida has to be scrapped. Instead, the court employed a “statutory revival” of the previous limit on temporary total disability benefits, which was 260 weeks, or five years. That time frame, it had been previously established, is constitutional.

The 5-2 ruling was the second recent victory for labor groups and plaintiff’s attorneys, as the court recently ruled in April that a law establishing limits on attorney’s fees in workers’ compensation cases was unlawful.

If you have been a victim of a Miami work injury, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Westphal v. City of St. Petersburg, June 9, 2016, Florida Supreme Court

More Blog Entries:

GEICO v. Macedo – Auto Insurer Must Pay Plaintiff Attorney Fees, May 20, 2016, Miami Work Injury Lawyer Blog

In 2003, the Florida legislature set limits of $500,000 in “non-economic damages,” such as damages for pain and suffering, in personal injury cases. In 2014, the Florida Supreme Court found that such limits are unconstitutional in wrongful death lawsuits over medical malpractice. Now, the 4th District Court of Appeal has ruled against certain limits in personal injury cases as well.

The medical malpractice lawsuit in question was first filed by Susan Kalitan, a dental assistant who suffered a perforated esophagus after being put under anesthesia for a carpal tunnel surgery. When she awoke after the surgery, she reported pain in her back and chest, but she was sent home. The next day, she was rushed to the hospital with an infection that resulted from a perforated esophagus. Kalitan then had to undergo neck and chest surgery and was in a medically induced coma for three weeks.

Kalitan was awarded about $4.7 million by a jury, with $4 million of that constituting non-economic damages. The judge applied the limits set by the 2003 law and reduced the non-economic damages award by $2 million.

The appeals court reinstated the jury’s award, finding that when caps discriminate between classes of medical malpractice victims, they violate equal protection rights guaranteed under the Florida Constitution.

If you need to speak with a personal injury lawyer, Call Joyce & Reyes at 1.888.771.1529 or visit more of http://www.joyceandreyespa.com/.

Normally in a criminal trial, the attorneys will invoke the “Rule of Sequestration” that prevents witnesses from being present in the court room when another witness is testifying.  It also prevents the witnesses from talking to each other about the case once the rule is invoked.  The purpose of the rule is to insure that each witness’ testimony is not influenced by what other witnesses say.

So why is Trayvon’s mother allowed to be in the courtroom and watch the proceedings and still testify against George Zimmerman?  There is an exception to the rule.  Florida Statute 90.616 “Exclusion of witnesses” states:

(2) A witness may not be excluded if the witness is:

(d) In a criminal case, the victim of the crime, the victim’s next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion, the court determines such person’s presence to be prejudicial.

Also Article I, section 16(b) of the Florida Constitution provides:

Alleged victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.

Because her son was a minor at the time of the alleged offense, she can remain in the court room during the entire proceeding.  Davis v. State, 875 So.2d 359 (Fla. 2003).

The Rules of Evidence are extremely important in a criminal case.  Call an experienced Polk criminal lawyer who knows the rules of evidence and will use them to take advantage of the facts in your case.

CALL AND SET YOUR FREE OFFICE CONSULTATION NOW! 

You will not have to drive to another county. Office – Lakeland, Polk County.

 Thomas C. Grajek  863-688-4606

Handling all felony and misdemeanor criminal cases in Polk County, Florida.