Florida was no stranger to this. Several years ago, lawmakers had enacted strict caps on plaintiff attorney fees that had some law firms being paid less than minimum wage. There was also a provision that limited workers to two years of temporary disability pay, regardless of whether they were actually able to return to work. Just this summer, the Florida Supreme Court struck down those provisions.

Now, as reported by ProPublica (which has been delving deep into this issue since last year), the Oklahoma Supreme Court has declared Oklahoma’s opt-out provision of workers’ compensation law unconstitutional. The opt-out system basically gave employers the right to write their own plans. It was the employer who decided the rules for which injuries would be covered. The employer dictated which physicians workers were allowed to see. Employers also decided how workers were to be compensated and how grievances would be handled. In some cases, companies even required work-related injuries to be reported on the very day they happened – unlike the 30-day window granted by the state – or else the injury wouldn’t be found compensable at all. The state high court ruled that these provisions rendered the opt-out system a violation of worker rights because it treated some workers (employees of those companies) differently than others.

The law was originally passed following an aggressive and concerted effort by a national and organized effort large firms, including the biggest companies in trucking, health care and retail. They pushed hard to pass similar laws across the U.S., primarily in the Southeastern part.

An investigation by NPR and ProPublica last year revealed these “opt-out” plans – touted as “worker-friendly,” “affordable,” and “faster,” in fact resulted in lower benefits and more restrictions for workers than they would face under workers’ compensation laws. That story was part of a larger series on how states had been systematically deconstructing workers’ compensation laws – piece by piece – to the detriment of injured workers.

This decision in Oklahoma is actually the second handed down by the high court in that state this year on the workers’ compensation issue. In the spring, the court overturned a provision that significantly reduced workers’ compensation benefits to those workers who suffered severe, permanent and disabling injuries. Unfortunately here in Florida (as well as New York and Tennessee) that same kind of provision still exists.

If you have been injured at work in Miami or in a Miami construction accident, we will help fight to ensure you and/or your loved ones receive fair compensation.

Call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Oklahoma’s Top Court: Companies Can’t Set Own Rules for Injured Workers, Sept. 13, 2016, By Michael Grabell, ProPublica

More Blog Entries:

Burger King Corp. v. Lastre-Torres – Third-Party Liability for Florida Work Injury, Sept. 18, 2016, Miami Work Injury Lawyer Blog

As The New York Times reported in-depth on the issue in 2007, these facilities have worked to structure ownership in ways that separate real estate and investment from operations, in many cases resulting in several distinct sub-companies having their hand in the pot – but all denying responsibility when a patient suffers illness or injury due to nursing home neglect or abuse. As the U.S. Department of Health and Human Services put it, “Knowing the proprietary status of a nursing home provider is insufficient to discern how organizational assets are structured and the operational approach of the company managing the delivery of nursing home services.” DHHS research showed nursing home are increasingly outsourcing management companies to deliver care to residents.

An example of how this can complicate a nursing home neglect lawsuit was seen recently in the Oklahoma Supreme Court case of Maree v. Neuwirth. According to court records, decedent was a resident of defendant nursing home facility when in January 2011, she suffered a fall. Plaintiff, decedent’s daughter, alleges her mother fell because defendant nursing home failed to respond to a “call light” in a timely manner in order to provide the elderly woman with appropriate toileting help. On top of that, the nursing home reportedly failed to contact a doctor or other appropriate medical assistance in a timely manner. Seven hours passed before a physician was called. Two days after the fall, patient died. 

Two years after decedent’s death, plaintiff filed a lawsuit, asserting her mother’s injury and death were the result of nursing home negligence. Plaintiff cited as defendant the nursing home, corporately and/ or by and through its servants, agents and employees, as well as the owner/operator. She alleged the nursing home breached its contract with the state by failing to comply with federal and state laws regarding long-term care, with decedent being the intended third-party beneficiary of those regulations.

Then in November 2015, almost five years after decedent’s death, plaintiff filed a motion to amend her petition to include “certain individuals and entities intertwined amongst and actually part of the named defendant.” She alleged these individuals made important decisions concerning staffing, hiring, budgeting, personnel issues, procedures and policies – including safety measures and directives regarding patient care and supervision.

Nursing home objected to motion to amend, arguing the the statute of limitations precluded claims against other entities and individuals, petitioner caused undue delay that was prejudicial to nursing home and the amendment doesn’t relate back to the original petition. Trial court denied the motion to amend based on the statute of limitations, and the fact that the conduct alleged by plaintiffs was not in connection with or directly involved with the occurrence of the action as originally filed.

Plaintiff appealed to the state supreme court.

The court ruled the trial court failed to afford petitioner the opportunity for discovery of her claims before deciding the issue on its merit. Thus, the court determined the trial court reached that conclusion in error and granted a writ of prohibition blocking the trial court from preventing that order. With regard to the writ of mandamus to allow plaintiff to amend the complaint, the trial court remanded for further consideration in light of the opinion.

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

Additional Resources:

Maree v. Neuwirth, June 7, 2016, Oklahoma Supreme Court

More Blog Entries:

Florida Day Care Injuries Give Rise to Lawsuit, May 25, 2016, Miami Nursing Home Abuse Lawyer Blog