Florida law providing employers with an affirmative defense that workers’ compensation benefits are the exclusive remedy for an injured employee (Section 440.11, Florida Statutes) is “constitutionally infirm and invalid,” Miami-Dade Circuit Judge Jorge E. Cueto has ruled. Florida Workers’ Advocates v. State of Florida, Case Number 11-13661-CA-25, 11th Judicial Circuit in and for Miami-Dade County, Florida.

The case was originally filed as a negligence suit by an injured employee and his wife. The employer argued that workers’ compensation was the employee’s exclusive remedy. Attorney groups intervened  as plaintiffs. The original parties (employee and employer) reached a settlement and exited the case. The attorney groups were joined by an individual, Elsa Padgett, as an intervenor. The case was transformed into a constitutional controversy with the intervenors seeking a declaratory judgment as to whether the exclusive remedy of Florida’s workers’ compensation statute is valid under the Fourteenth Amendment of the U.S. Constitution and the Florida Constitution.

Florida’s workers’ compensation law, enacted in  1935 and amended in 1968, provided for full medical benefits and compensation for partial loss of wage earning capacity. An employee, however, had the right to opt out of the remedies provided by the statute and bring a tort action against the employer. Over time, the statute (and case law interpretations) continued to be amended, and eventually an employee’s right to opt out of coverage was repealed, and full medical benefits for all  injuries were no longer available as such benefits were restricted to total permanent injuries.

Judge Cueto found that, over time, statutory amendments eliminated workers’ rights and eroded the benefits system. The court said the workers’ compensation act “lacks any provision for compensating for permanent partial disability.” Indeed, Judge Cueto emphasized, “The benefits in the Act have been so decimated since [1968] that it  no longer provides a reasonable alternative to tort litigation. . . . The Act is the most intrusive way to compensate citizens for injuries on the job by taking away access to courts and removing the inviolate right to trial by jury.”

Judge Cueto concluded that because the law no longer provides full medical care or any compensation for a permanent partial disability, “it is inadequate as an exclusive replacement remedy for all injured workers.” Accordingly, the court found the Florida workers’ compensation law unconstitutional on its face “as long as it contains §440.11 as an exclusive replacement remedy.”

As of this writing, the Florida Attorney General has not decided whether to appeal Judge Cueto’s ruling. The ruling does not have any precedential value on pending or future workers’ compensation claims or cases. However, a similar argument is being made by an injured firefighter in a case pending before the Florida  Supreme Court. See  Westphal v. St. Petersburg, et al., Case Number SC13-1930.