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scales of justiceIn previous blogs, we addressed the first and second elements of a Section 440.205 Florida Statutes wrongful retaliation/termination cause of action. This blog will address prong the third element.

§440.205 reads as follows:

Coercion of employees.—No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.

Case law has broken this cause of action down into the following elements:

  1. The employee engaged in a statutorily protected activity;
  2. An adverse employment action occurred; and
  3. The adverse action was causally related to the employee’s protected activity.

Russell v. KSL Hotel Corp., 887 So.2d 372, 379 (Fla. 3d DCA 2004); and Humphrey v. Sears, Roebuck, and Co., 192 F. Supp. 2d 1371, 1374 (S.D. Fla. 2002).

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Florida’s workers’ compensation system was created, in 1935, with the goal of providing benefits to injured workers without the delay of haviworker2ng to prove the accident was caused by the employer’s negligence. In exchange for this no-fault system, employers were granted immunity from being liable for negligence.

The system, however, did not afford absolute immunity. There was a time when employees who were able to demonstrate that an employer engaged in conduct which is substantially certain to result in injury or death, could pursue a civil remedy. Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000).

While difficult, overcoming workers’ compensation immunity by establishing  substantial certainty was within reach.

In 2003, Governor Jeb Bush and the Florida Legislature put the chance of overcoming workers’ compensation immunity out of reach. New measures, in the form of Florida Statute 440.11, were instituted to make overcoming employer immunity virtually impossible.

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pinoccioOur previous blog addressed the first prong of a Florida Statute §440.205 workers’ compensation retaliation/wrongful termination cause of action (COA). §440.205 provides:

Coercion of employees.—No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.

Case law has established the elements of a §440.205 COA as follows: the employee must prove: (1) he engaged in a statutorily protected activity; (2) an adverse employment action occurred; and (3) the adverse action was causally related to the employee’s protected activity. Russell v. KSL Hotel Corp., 887 So.2d 372, 379 (Fla. 3d DCA 2004); and Humphrey v. Sears, Roebuck, and Co., 192 F. Supp. 2d 1371, 1374 (S.D. Fla. 2002).

This blog will address prong (2).

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Florida is an at-will employment state. The doctrine often allows employers to terminatedend employment relationships without suffering any negative consequences besides paying unemployment compensation benefits.

While the doctrine creates a climate of vulnerability, Florida employers do not have absolute immunity for every termination decision. They can find themselves in hot water for

This blog will address the first element of a §440.205 retaliatory discharge claim.

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worker2I have blogged often to express my displeasure and dismay with the slow and sometimes immediate erosion of benefits available to injured workers under Florida’s workers’ compensation system. This blog highlights one example.

The Florida Legislature enacted the state’s first “Workman’s” Compensation Act in 1935. While I have not done a case study of the Act and its changes from 1935, I can speak with authority on the subject from when I first became involved in the system in 1989: The quality and value of benefits available to Claimants have diminished dramatically to now.

A clear and simple example involves §440.15(2)(b) Florida Statutes.

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law booksPersonal injury plaintiffs and defendants battle over past and future damages. One frequent battleground concerns the amount a plaintiff should be awarded for future medical expenses.

Not infrequently, plaintiffs have sources such as health insurance, workers’ compensation, PIP, Med Pay, Medicaid, and Medicare to cover some or all of their future medical expenses. Almost always, these sources pay less than the usual and customary rates charged by most medical providers. Moreover, by accepting payments from these sources, medical providers are barred, in most instances, from balance billing beyond a small copay.

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dollarsFlorida’s civil justice system allows accident victims to seek damages from those alleged to be at fault. Damages awardable fall into two broad categories: Economic and non-economic.

Economic damages include medical expenses (past and future), past lost income, and the loss of earning capacity in the future. In some instances, Florida law allows these economic damages to be offset, or reduced, by or to the amount the victim received from other sources for the same loss. See §786.76 Florida Statutes and Florida Standard Jury Instruction 501.8.

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scalesFlorida has five district courts of appeal. These courts are charged with reviewing rulings and outcomes arising in lower tribunals. Above these courts sits the Florida Supreme Court. This court reviews decisions issued by the five lower courts of appeal.

Cases reach the Florida Supreme Court in one or more of the following ways: (1) an opinion rendered by one appellate court conflicts with an opinion of one or more other appellate courts; (2) the opinion conflicts with a Supreme Court decision; (3) the appellate court decision declares a statute unconstitutional; or (4) the appellate court declares the question(s) before it to be of great public importance. By far, number (1) is the most common method.

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stoolsFloridians, like residents in every state, are acutely aware “of the terrible toll taken, both in personal injuries and property damage, by drivers who mix alcohol and gasoline,” Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200, 205 (1983). While many of the culprits receive their intoxicating fuel from bars and restaurants, the legal standard for holding establishments liable for vehicle crashes caused by their patrons is exceedingly high. §768.125 Florida Statutes, Florida’s Dram Shop statute, provides the standard:

Liability for injury or damage resulting from intoxication.—A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

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The first sentence of §440.34(1) Florida Statutes advises that every attorney’s fee worker2received by a Florida workers’ compensation claimant’s attorney must be approved by a judge of compensation claims (JCC). This is the case whether the fee is paid by the claimant, an employer, or a workers’ compensation insurance company. A violation of the law is a crime. Florida Statute 440.34 outlines the main types and amounts of fees available to claimants attorneys. (Statutes 440.105, 440.32(1)&(2), and 57.105 describe fees available as sanctions.) While fees in personal injury cases typically range from 33-1/3%-40%, the allowed percentage in workers’ compensation case is significantly less. Here is the basic formula:

Any attorney’s fee approved by a judge of compensation claims for benefits secured on behalf of a claimant must equal to 20 percent of the first $5,000 of the amount of the benefits secured, 15 percent of the next $5,000 of the amount of the benefits secured, 10 percent of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years.

§440.34(1) Florida Statutes. Continue reading

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