THE FLORIDA CONSTITUTION ARTICLE 1 SECTION 22 
SHOULD BE AMENDED AS FOLLOWS TO ADD:

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The right to a trial by jury to assess responsibility for and the amount of damages for personal injury shall not be limited nor shall it be replaced by an exclusive alternate remedy.

PREAMBLE

"LAWS AND INSTITUTIONS MUST GO HAND IN HAND WITH THE PROGRESS OF THE HUMAN MIND...WE MIGHT AS WELL REQUIRE A MAN TO WEAR THE COAT THAT FITTED HIM AS A BOY, AS CIVILIZED SOCIETY TO REMAIN EVER UNDER THE REGIME OF THEIR ANCESTORS." Thomas Jefferson

INTRODUCTION

Worker's compensation laws have been on the books in the United States since the early part of the twentieth century. The impetus for them is disputed. Many think the laws which created an exclusive alternate remedy for workers injured on the job (in exchange for common law tort actions) were designed to protect the workingman from becoming destitute after an industrial injury and to protect society as a whole from the burden of caring for the injured worker and his family when the burden of such care should be on the industry he served.

A more scholarly theory explaining the reason behind workers compensation statutes is that they were instigated by industry to protect employers from runaway juries that were awarding large sums to injured worker plaintiffs against employers in tort actions even though the law at the time favored the employer in such suits. The Common Law rule of contributory negligence should have barred any recovery by a workingman who was even one percent negligent in causing his own injury, or who assumed the risk of a hazardous occupation, or whose injury was occasioned by the negligence of a fellow servant. It was the employers who lobbied for laws fixing a reduced payment to all injured workers in exchange for immunity from suit.

In 1974, when I began practicing workers' compensation law in Florida, the maximum weekly compensation rate any worker could receive, regardless of how high his average weekly wage (AWW) was $80.00 per week. As of January 1, 1997, the maximum compensation weekly rate is $479.00 per week. One may assume that in 1997 it is easier to get to the maximum because compensation is now calculated at sixty-six and two-thirds percent (66 2/3%) of the average weekly wage (AWW) while in the early '70's it was calculated at only sixty percent (60%) of the AWW. This assumption is not necessarily true. Most of the fringe benefits included in the AWW calculation in the early 1970's (valued at their fair market value) are now totally excluded from the calculation or, if included, are valued at the actual cost to the employer. A comparison of the maximum rates would make it appear that benefits have kept up with inflation over the past 23 years, but such a comparison is deceiving.

Today a minimum wage 40 hour worker earns $190.00 per week. Using this as the AWW compare today's compensation benefits to those payable under the compensation law in effect in July of 1974. What you get is a tremendous disparity. Impairment benefits in 1974 at $80.00 per week (the 1974 maximum) are still substantially better than those payable in 1997 at a compensation rate of $126.67 (66 2/3% of $190.00). For example, consider the impairment benefit (IB) for a permanency rating of 10% of the body. The amount of the impairment benefit that an injured worker received in 1974 was at least $2,800.00. If his 10% impairment created an even greater loss of wage earning capacity, he would be compensated in excess of that $2,800.00. If he was permanently and totally disabled (defined as unable to perform even light or sedentary work uninterruptedly) as a result of the injury, he would get lifetime benefits.5

Using the same 10% impairment rating, 1997's injured worker with a $190.00 average weekly wage would receive only $1,900.20 for his impairment.6 He would not be eligible to claim any additional benefits for loss of wage earning capacity or permanent total disability (now defined as being catastrophically injured).7 The monetary value of the 1974 10% impairment was greater by $899.80, at the very least!8

Florida Supreme Court Justice Richard W. Ervin (Retired), in a 1986 speech to the Judges of Industrial Claims (now Judges of Compensation Claims) compared worker's benefits pre-1979 with post-1979 benefits (The Wage Loss System introduced at the request of industry in 1979 became defunct as of July 1, 1990). 9

Ervin commented:
"Frankly, I am quite unable to say whether workers fare better now (1986) than they did in 1978"10
The author believes that every piece of workers compensation "reform" legislation passed and signed into law since the "Papy" package of amendments to chapter 440 (eff. 10/1/74) was introduced with the intent to reduce benefits to injured workers in order to reduce the cost of the workers compensation system to industry.

THE TRADE - BENEFITS FOR IMMUNITY

In exchange for providing puny benefits to injured workers, the employer, any "statutory employers", and all co-workers receive virtual total immunity from lawsuits by injured workers to redress their injuries. Florida Statute 440.11 grants that immunity. The courts have interpreted F.S. 440.11 to mean that a business or any of its immune employees must act in a fashion equivalent to a first degree misdemeanor before immunity can be breached.11
How far does immunity stretch? Consider this recent decision from our Third DCA. It stretches far beyond the actual injury. The Legislature in 1979, probably in a weak moment passed Fla. Stat. 440.205. This section provides that an employer (not necessarily the one where the injury occurred) may not discharge, threaten to discharge, intimidate or coerce an employee because that employee has filed a valid Worker's Compensation claim. "Whistleblower" laws usually provide a remedy for their violation. Unlike these laws, the Compensation law prohibitions provided no remedy for violations and no teeth for enforcement. Our Supreme Court ruled that there could be no right without a remedy, concluding that if an employee is actually discharged that employee had the remedy of a civil damage suit vs. the Employer in Circuit Court12 . This appeared to be a victory for the workingman. Just this year the Third DCA was asked to review a decision of the Dade Circuit Court in a suit brought against an employer who was alleged to have intimidated and coerced an injured worker. The Third DCA ruled that Fla. Stat. 440.205, while prohibiting this activity, did not give the injured worker the right to damages for the violation. In the same case the Third DCA also ruled that the employer was also immune from being sued for fraud. Fla. Stat. 440.105 provides felony penalties for fraud by the employee, the employer, attorneys, adjusters and doctors. If the employee commits fraud to get compensation benefits, he loses them entirely.13 If the employer or carrier commit fraud in order to try to prevent an injured worker from being compensated for injury, there is no benefit to the employee if said fraud is detected and proven and, according to the Third DCA, there is no civil action for damages.14

Until the 1990 version of the Compensation Act went into effect, consequential injuries arising out of the original injury were "compensable". In other words the Employer/Carrier were responsible for those types of things which were related to the compensable condition. Things like Medical Malpractice causing additional injury which occurs during treatment by an authorized doctor. In 1990 the legislature inserted these words into Chapter 440:

"Injuries caused by a subsequent intervening accident arising from an outside agency which are the direct and natural consequence of the original injury are not compensable unless suffered while traveling to or from a health care provider for the purpose of receiving remedial treatment for the compensable injury."15

Where do you think this leaves the injured worker who has been dumb enough to let an uninsured neurosurgeon operate on his back and has become the victim of malpractice? Up the creek is my guess. You can be sure the compensation carrier will deny further benefits of any kind and take the position that the judgment proof Doc is now responsible for further care and indemnity.

If you think Workers' Compensation Laws are the type of social legislation designed to foster a safe work environment, keep reading. Sure, we have laws on the books requiring employers to provide employees with a safe place to work. Are the laws enforced ? If they are one would expect to find the facts and figures in the Annual Report of the Division of Worker's Compensation. There is no information in the 1996 report about the Division's enforcement of Fla. Stat 440.56 entitled "Safety Rules and Provisions; Penalty".


THE HORROR STORIES

All of the reported cases say that an employer can be negligent, grossly negligent, reckless, wanton, and imprudent. None of which are sufficient to satisfy the intentional tort standard applied in Florida to overcome immunity. Public policy forbids the sale of insurance to protect one from lawsuits alleging an intentional tort.16 So, even if an injured employee can sue and obtain a money judgment, he may never collect his due.
Examples of conduct that is not bad enough to allow the employee to sue his employer or his co-employees in tort include the following:

An employer knowingly allows his employees to use defective scaffolding, and breaks his promise to the employees to repair same. The employee injured as a result of a scaffolding collapse becomes permanently paralyzed. Hawkins et al. v. Cordy17
This was not wanton enough.


An employer removes safety devices, fails to properly install a machine, intentionally bypasses an emergency cutoff switch, and fails to train employees how to use the machine. Employee's hand caught in the machine resulting in a thirty percent permanent disability. Kline v. Rubio 18
This was not reckless enough.

An employer allows an unskilled, non-professional and unlicensed scrap dealer to perform demolition work, causing injury to an employee. Keenan and Sons Demolition v.Dipaolo19
This was not imprudent enough.

The employer directed the injured worker to clean out a pipe containing methane gas which the employer knew would in all probability result in injury. The employer also allegedly failed to provide safety equipment and intentionally avoided OSHA rules. Fisher v. Shenandoah General Construction 20
This was not criminal enough.

An injured employee alleged that a general contractor had committed an intentional wrong by violating safety standards and practices set forth in the South Florida Building Code and in OSHA regulations by failing to secure an open skylight on a roof where the general contractor knew the injured employee was working. Matthews Carp. v. Peters 21
This was not negligent enough.

The employer removed all safety guards and safety devices provided by the manufacturer of a machine. The employer refused to follow regulations concerning the safety of its workers causing the injured worker's hand to be maimed in a printing press. Lawton v. Alpine Engineered Products 22
This was not bad enough.

But if, God forbid, an employee knowingly fails to use a safety device or observe a safety rule and injury to him results, that employee's compensation is reduced by 25 percent! 23
There are an infinite number of these horror stories. It should already be apparent that the tradeoff, immunity for (allegedly) certain, (allegedly) fast and (allegedly) reasonable compensation benefits is not now, nor has it ever really been, a fair exchange. One is reminded of the story of Brer' Rabbit. The lesson to be learned is that if a form of punishment is asked for, it may not be punishment at all. In this situation it was employer's begging their elected representatives (like the rabbit in the story who pleaded not to be thrown in the briar patch): "Please Mr. Legislator don't make us pay a little bit in every case where a worker is injured on the job, please don't do that to us Mr. Legislator".24

MARTIAL LAW IMPOSED

From a historical perspective, it seems to have been relatively easy for the states, in passing workers' compensation laws, to violate Article 7 of the Bill of Rights of the United States Constitution. Art. 7 provides that the right to a trial by jury shall be preserved in civil cases where the damages are alleged to be more than $20.00. Although the Supreme Court during the 1960's selectively incorporated most of the Bill of Rights into the Fourteenth Amendment so that today those specific protections apply in State as well as Federal proceedings, the seventh amendment was not one of them. However, Florida's Constitution, Article 1 section 22, protects a citizen's right to a jury trial.

It reads:
"The right of a trial by jury shall be secure to all and remain inviolate, the qualifications and number of jurors, not fewer than six, shall be fixed by law."

Article 1 section 21 says:
" The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay."

Yet, employees who are injured on the job have no right to a trial by jury to determine responsibility for or the amount of damages to which they may be entitled. This right has been taken away and replaced by severely limited Workers' Compensation benefits awarded by an administrative law judge (not a court) employed by the Executive branch of the state government. The only access to a "court" is the limited appeal from an order of the Judge of Compensation Claims. The appellate "court" has no jurisdiction to "redress" the injury. It may only determine if the JCC had some evidence to support the award or denial of benefits. Worker's Compensation is the "exclusive remedy" even in the most egregious situations of employer fault.

Former Justice Ervin also commented in his 1986 speech:
"Our constitution guarantees access to open Courts for redress of all injuries with justice administered without sale, denial or delay. But is this provision becoming a dead letter and winked at with impunity by pressure groups... The courts, particularly the Appellate Courts at the highest level lately have been unable to muster the constitutional courage to repel all these legislative intrusions upon the traditional rights of the average citizen' to enjoy and defend life and liberty'. Often forgotten is the old axiom, 'no wrong without a remedy'." 25

Workers' Compensation laws in the United States date back to New York's law enacted in 1914. An earlier statute passed in New York was held unconstitutional. The New York courts found the 1914 statute constitutional, and not in violation of due process rights, because the State of New York possessed the police power to enact such a statute for the promotion of the general welfare of the public. The court obviously confused the welfare of the business community with the welfare of the general populace. That New York statute was limited, however, to coverage of hazardous employments.26 Today, worker's compensation laws cover virtually all employments, whether hazardous or not.
In passing on the constitutionality of New York State's workers' compensation statute, the United States Supreme Court held that the right to a trial by jury was not being infringed upon. The Court found that the procedural provisions contained in the New York act were adequate to afford the notice and opportunity to be heard required by the Fourteenth Amendment to the Constitution, and that the denial of a trial by jury is not inconsistent with due process.27 The court did not extend, however, the guarantee of a trial by jury contained in the seventh amendment, as being applicable to the States.

In approving Washington State's workers' compensation act the Supreme Court of the United States relied upon Washington's legislative history which included a finding by the legislature that substantially all of the industrial operations in Washington are "extra hazardous". The Court then approved the use of the police power of the state to solve the problem of compensating injured workers. Injured workers in the United States of America have had their constitutional rights taken away by use of the police power of the state, a form of martial law, ever since.28 How can we as a nation complain about human rights abuses in the third world when we subjugate our weakest group of citizens, injured workers, to the whims of each state legislature beholden to the monied special interests?

 

DO THINGS CHANGE IN 80 YEARS?

What were legislators seeking to accomplish, and what were the dynamics of the politics of the early years of the twentieth century, which fostered the passage of and the judicial approval of workers' compensation laws? In 1914 The United States was an industrial nation struggling to become a world power. Injuries which occurred on the job were usually horrendous because of the lack of safeguards and lack of modern medical advances which are available today. Group health insurance and disability insurance were not readily available, if at all. The social security system along with its SSI, SSD, Medicare and Medicaid programs had not even been thought of. Welfare, unemployment compensation, food stamps, and the like, were not established programs. There were no safety nets such as the Americans with Disabilities Act or the Family Leave Act or OSHA. An injured worker, whose income was cut off and who needed medical care became a burden on society as did the rest of his family.

In those early days, common law principles applied when an injured worker sought redress in the courts. It was difficult to fight the well-oiled industrial machine, but those workers who persevered found that there was a very good chance for success at the end of the litigation. Even though employers at common law were entitled to maintain the absolute defenses of "contributory negligence", "fellow servant liability" and "assumption of the risk of hazardous occupations", nevertheless sympathetic juries ordinarily awarded large verdicts notwithstanding.29 But, even without any authority to back up this conclusion, Florida courts continued, even as late as 1952, to comment on how hard it was for an injured worker to successfully sue at common law and how the employer was able to use common law defenses to defeat recovery.30

The special interests that lobbied the legislatures of the various states had three things in their favor. One, government wished to remove from society as a whole the responsibility for injured workers. Two, employers sought to be immune from expensive suits at common law in exchange for providing minuscule benefits (compared to jury awards). Third, labor had little political clout. The results were compensation programs maintained under the guise of helping the injured worker. The spin put on workers' compensation laws was that injured workers would starve waiting for their cases to be heard in the courts, and they would probably lose anyway because of the employers three absolute common law defenses. Therefore, injured workers should be happy to receive medical care and partial income protection benefits in exchange for giving up their right to a trial before a jury of their peers.

The jury system has been often criticized. One of the most learned of our forefathers said in its defense:
"I consider trial by jury as the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution." Thomas Jefferson, 3rd President of the United States. 31


The Virginia Declaration of Rights (1776) contains the following language:

"That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred."32

While it is true that economic loss to the individual by injury in the line of duty should be borne in part by the industry in which he is employed33, it is the processes of determining the level of benefits (legislative) and delivery of benefits (administrative), which are faulty. Early compensation laws attempted to even the playing field and preserve the quid pro quo by use of various safeguards to give the injured worker a slight edge when it came to determining whether or not his injury was compensable (that it arose out of and in the course and scope of his employment). The worker got the benefit of an evidentiary tool known as the "logical cause rule".34 This rule provided that if the injured worker proved by competent substantial evidence that his injury arose out of his employment, the burden then shifted to the employer to prove a more logical cause for the injury than the one proven by the worker. Equally logical causes and negative evidence did not suffice to overcome the logical cause proven by the worker. There were also basic presumptions favoring compensability written into the acts.35 The most important of which was the presumption that the claim came within the provisions of the act. The injured worker could also depend upon an independent administrative judiciary to hear his claims.

Over the past seven years, the basic presumptions favoring compensability, formerly contained in Florida Statute 440.26, were repealed.36 The Florida legislature decreed that neither employees nor employers should be given an advantage with regard to interpretation of the facts or the law in workers compensation proceedings.37 Up until these recent changes took effect, if the law was subject to disparate interpretation the interpretation most favorable to the workingman was mandated. Even the logical cause rule may no longer be valid. The legislature has gone further by narrowly defining what an accident arising out of the employment is.38 The legislature has also created special conditions for compensability (actually specific ways to bar compensation).39 Fortunately the Supreme Court of Florida threw out as unconstitutional the irrebuttable presumption placed in the compensation act that drugs in one's system barred any recovery. 40 The legislature has even gone so far as to repeal an injured worker's right to object to the medical care that he is being provided, and eliminated misdemeanor penalties previously enacted to punish an employer, or its insurance carrier, guilty of coercing an injured worker in the selection of his physician.41

THE SCORE: PRISONERS:1, INJURED WORKERS:0


Terry Heckford, a prisoner in the custody of the Florida Department of Corrections, sued the department (an agency of the State of Florida) for injuries he suffered while incarcerated. Actually Mr. Heckford suffered the injuries prior to his incarceration. It was alleged that his jailers were negligent in not allowing him to wear his knee braces thereby causing an acceleration of his arthritis. A jury awarded him $60,000.00 of our tax money. The First DCA approved.42 A Florida employee suffering the same injury due to the negligence of his employer has no right to a trial by jury. His Worker's Compensation benefit for this same condition would not have come close to $60,000.00. Florida's workers have truly become second class citizens, with rights inferior to prisoners who are still entitled to a jury trial if they are injured through the negligence of their jailers!43

HISTORY MARCHES ON...


On July 10, 1974, long after adoption of the 1968 Florida Constitution, the Supreme Court of Florida took the Sunshine State out of the dark ages of common law rule and into the enlightened comparative negligence era.44 Those three complete defenses to an employee's recovery in a suit against an employer at common law were replaced by lumping them into what is now the comparative negligence rule. The change would have made it much easier to prove negligence against an employer or co-employee than it ever was at common law thus making the right traded away for compensation benefits more valuable. Yet, instead of compensation benefits substantially increasing to account for this change in the value of the trade (immunity for compensation), benefits increased slightly on October 1, 1974 but have gone downhill since, until today when they are less than the benefits afforded under the 1974 law.

Is there any further need to exercise the police power of the state with regard to injuries on the job? Will injured workers become burdens on society if they don't have a workers' compensation law to fall back on? Or, are workers going to become burdens on society because compensation benefits are so meager that a worker who now earns $190.00 per week gets $63.34 per week as his impairment benefit? To add insult to injury, for the first time since the Florida Compensation Law was enacted, the injured employee is expected to pay a $10.00 per visit co-payment to his authorized doctor for palliative care. 45 One $10.00 doctor visit per week represents fully 18% of the weekly family income from compensation. A minimum wage employee getting impairment benefits would have his net compensation reduced to $53.34 per week. The worker would be faced with choosing between going to the doctor or feeding and housing his family.46

Since 1974, the Florida legislature, in decimating the compensation benefits provided to injured workers, left no benefits section of the law untouched. Even calculation of the average weekly wage was tinkered with. In propaganda sent to Florida's legislators, industry lobbyists attacked the method used and the items included in the average weekly wage calculation. Until the mid-1980's the average weekly wage computation included the fair market value of all fringe benefits provided to the injured worker. The definition of average weekly wage was then changed to include all fringe benefits but calculated at actual cost to the employer47 and then changed again, to include only the actual cost to the employer of health insurance and, under certain limited circumstances, the value of lodging.48 Each change reduced the AWW and thus reduced the weekly compensation rate. It is quite foolish to think that an injured worker could replace his family health coverage by using a weekly compensation payment which includes for that purpose an amount equal to two-thirds of his employer's reduced cost for the same coverage.

In order to convince legislators to make these changes industry lobbyists told them that injured workers were having the value of items such as birdseed included in their average weekly wage. While this is true, as Paul Harvey says, you need to know the rest of the story. The claim in question is reported as Imperial Bird Company v. Beyer.49 The injured worker, Gail Beyer, was a very unfortunate young woman who contracted Psittacosis (Parrot fever) at work. She suffered very severe disabling neurological problems. Her employer at Imperial Bird Company was very concerned about the welfare of his employee. It was his idea, the employer's, to volunteer testimony at a hearing on the claim that there was a specific monetary value to the exotic birds and birdseed he gave to his employee in the thirteen weeks before her industrial accident. Thirteen weeks is the period of time the law requires consideration of in determining the AWW. The Compensation Judge included the value of these fringe benefits in calculating the average weekly wage. The transcript of the testimony at the hearing before the Judge of Compensation Claims will verify these facts. My firm successfully represented Gail Beyer at the trial and the appeal of her claim. Yet, it was injured workers and their greedy attorneys who were blamed for artificially increasing the average weekly wage thus increasing the benefits to the injured worker and ultimately raising the cost to industry.

KILLED ON THE JOB AND WORTH LESS THAN $5,000.00, IT HAPPENS

The division of Worker's Compensation reports that preliminary figures indicate there were 194 death claims filed in 1996. The maximum total exposure to pay those claims is $100,000.00 each plus up to $5,000.00 each for funeral expenses. The minimum exposure is the hole and the box. As little as the cost of the funeral but no more than $5,000.00. An employer who operates in a highly hazardous industry (like trucking 50) can minimize exposure in death cases by hiring only unmarried drivers with no dependents. Florida Statute 440.16 (1993) limits the payment of benefits to surviving spouses, children up to age 18, extended up to the age of 22 if in school full time but cut off if the child marries. Parents, brothers, sisters and grandchildren are eligible for benefits if dependant upon the deceased. If there was no Worker's Compensation law the employer who failed to repair the brakes on that 18 wheeler, causing the death of his driver and helper would have been liable under Florida's wrongful death statute to a wider class of beneficiaries and for a longer period of time and probably in a much greater amount.51 Even creditor's of the deceased are protected under the Wrongful Death statutes but are totally unprotected under the compensation act.

The constitutionality of the Death Benefits section of the Worker's Compensation Law as it existed in 1969 (a year after the adoption of the Constitution of 1968) was upheld. The Supreme Court, speaking through Justice Carlton said:
"In the instant case, the deceased had the option to accept or reject coverage at the time of employment, under authority of Fla. Stat. 440.03 (1969), 440.05(2) (1969), and 440.07 (1969), F.S.A. By his voluntary act, he (the minor deceased employee) chose to bind himself, and his representative and survivors in the event of death, to the provisions of the Act. No unconstitutional discrimination exists under these circumstances."52

Section 440.07 Fla. Stat (1969) which pertained to the effect of employee rejection of the act, derived from the laws of 1935, was repealed by Laws 1970, c.70-148, 4. That 1970 chapter substantially rewrote 440.05 which provided (before the rewrite), that every employee may reject the coverage of the Act by notifying the employer and the Division in writing. Fla. Stat. 440.03 as amended in 1970 made the Act compulsory for all employees for the first time, without exception.

While on the subject of Death Benefits, why is it that the highly paid construction worker who earns $30,000.00 and up has the same maximum death benefit as the part-time supermarket bag boy? One would think that to be appropriate the death benefit should be some set multiple of the average weekly wage (or compensation rate) but not the same for everybody.

The maximum compensation rate is defined as 100% of the statewide average weekly wage, adjusted to the nearest dollar. In 1997 the maximum weekly benefit was fixed at $479.00 per week. In order to get that amount per week an injured employee would have to have an AWW of $718.50 per week (excluding all fringe benefits except the actual cost of health insurance paid by the employer and under limited circumstances, lodging). Anyone who is injured on the job who earns over $718.50 per week gets the same $479.00. In the tort system there is no such maximum.

 

SAVING ON COSTS OF COMP-REDUCE BENEFITS, INCREASE OFFSETS

Reducing the AWW calculation by excluding valuable fringe benefits such as pension contributions, company cars and the like was not the only tactic used by industry to keep workers' compensation laws in effect, but reduce benefits and thus the costs. In 1973 an injured worker who was rendered temporarily totally disabled (TTD) could get TTD benefits for up to 350 weeks,53 and thereafter be eligible for temporary partial disability (TPD) benefits for up to 5 additional years.54 As of January 1,1994 the maximum length of time an injured worker can be paid TTD and/or TPD combined is 104 weeks.55 A reduction of up to 506 weeks ! 12 years maximum temporary indemnity benefits in 1973 vs. 2 years maximum after January 1, 1994.

Even our Supreme Court has come down hard on injured workers and in favor of industry. The court recently opined that an injured worker should never be able to receive more in weekly compensation benefits than he or she was earning at the time of the accident. While this seems fair at first blush, look further. The benefits to be included in the calculation are first, Social Security Disability benefits. A benefit provided by a fund to which the injured worker contributed close to half the cost by payroll deduction. Second, pension benefits for in-line-of-duty disability, even if the injured worker contributed to the plan. If these two exceed the weekly wages of the injured worker (calculated without including fringe benefits except for health insurance and maybe lodging); no compensation indemnity would be payable at all! None, Zero! 56 All this notwithstanding generally accepted theories that compensation is the primary benefit and no employee should be required to contribute to a fund or plan that is responsible for paying compensation. The court has now allowed employers to do through the back door what they couldn't do through the front door.57 Try to find anywhere, in the Compensation Act, in Federal Statutes, or even in the Florida Retirement System laws any prohibition against an employee collecting, years or decades after his injury, more than 100% of pre-injury wages by combining Compensation, Social Security Disability and Disability Pension benefits. You won't be able to. This is the Supreme Court acting in it's legislative capacity.

"If the Judicial Department of the Government can take over the Legislative powers, there is no reason why it cannot also take over the executive powers...The tendency to reach out and grasp for power in the sphere of governmental activity; for one branch of government to encroach upon, or absorb, the powers of another, is the means by which free governments are destroyed...It is the duty of the Judicial Department, more than any other, to maintain and preserve those provisions of the organic law for the separation of the three great departments of Government"58

Strangely enough, the elected legislature addressed the issue of pension offsets by passage of Fla. Stat. 440.15 (12) ch. 90-201 (1990) which allowed the pension benefit to be reduced if compensation and pensions (not including Social Security) exceeded 100% of the weekly wages of the employee. The elected legislature then quietly repealed that section. It just disappeared a year later. The elected legislature spoke. The judicial legislature didn't listen.
You may recall at this point that Worker's Compensation is a tradeoff. An exchange of remedies. Is there a cap in tort law recovery of 100% of pre-accident wages ? No. Economists are often called upon to render opinions on future earning capacity for juries to consider. Are economic damages in tort law offset by Social Security Disability or pensions to which the injured party paid a part of the cost? No. We have sat by and allowed a form of law needed 80 years ago for hazardous employments to oppress a group that has very little input in the legislative process that governs them, injured workers.

THE MORE THINGS CHANGE, THE MORE THEY REMAIN THE SAME

When the courts are called upon to rule on the constitutionality of a compensation act or any of it's provisions there are standard reasons which seem to perpetuate themselves from decade to decade without regard for changing times or changing laws in related areas. In Mullarkey 59 the majority opined in 1972:

"Third, the concept of exclusiveness of remedy...appears to be a rational mechanism for making the compensation system work in accord with the purposes of the Act. In return for accepting vicarious liability for all (?) work-related injuries regardless of fault, and surrendering his traditional defenses (?) and superior resources (?) for litigation, the employer is allowed to treat compensation as a routine cost of doing business which can be budgeted without fear of any substantial tort judgments. Similarly, the employee trades his tort remedies for a system of compensation without contest (?), thus sparing him the cost (?), delay (?) and uncertainty (?) of a claim in litigation. General welfare costs are reduced to the extent that compensation keeps the injured and his dependents from the public dole (?). Protracted litigation is superseded by an expeditious (?) system of recovery." I have added question marks at those places where the reasoning is now suspect.

Why, one should ask, can a business budget the cost of compensation coverage any better than budgeting the cost of liability coverage? Why, one should ask, should anyone assume that worker's compensation claims are without contest? The division of Worker's Compensation reported in it's 1996 Annual Report that litigation in the Compensation arena was a major contributor to the increase in costs of the system triggering the 1979 revisions to the Act. A decade later, 1989 revisions sought to lower costs again citing litigation as the problem. To reduce costs the 1993 revisions cut back the benefits severely. To hinder the right of employees to litigate at all, the attorney's fee schedule was cut by 33 1/3%. Before the cut the fee schedule had averaged 15% of the benefits achieved over $10,000.00. It was lowered to 10% of benefits achieved over $10,000.00. In 1992, the last year for which complete data is available, over 22,000 out of a total of 83,000 lost time cases were litigated. Worker's Compensation is supposed to be a self executing system. Who's kidding who ? In that same year carriers paid out almost 63 million dollars in claimant's attorney fees. That's 63 million that would have been paid by the Plaintiff in tort litigation, not the Defendant.

The Supreme Court of Florida speaking through Justice Adkins said in a 1973 decision:
"Workmen's (Worker's) compensation abolished the right to sue one's employer in tort for a job-related injury, but provided adequate (?), sufficient (?), and even preferable safeguards (?) for an employee who is injured on the job, thus satisfying one of the exceptions to the rule against abolition of the right to redress for an injury 60 (Question marks added to indicate suspect reasoning). In light of the reduction in benefits, the roadblocks placed in the path of the claim process and the lack of any safeguards whatsoever, how is the exception to the rule satisfied today ? One year to the day after Kluger the Florida Supreme Court abolished the contributory negligence defense in the Jones case.

HOW TO LIE WITH STATISTICS, OLD ONES AT THAT

The only statistics relied upon to pass compensation laws in the second decade of the twentieth century were German figures for 190761. The Germans classified accidents by cause.


(1) Negligence or fault of employer 16.81%
(2) Joint negligence of employer and employee 4.66%
(3) Negligence of fellow servant 5.28%
(4) Acts of God 2.31%
(5) Fault or negligence of injured employee 28.89%
(6) Inevitable accidents connected to the job 42.05%
(assumption of the risk)


At common law the employee who sued was supposed to take nothing in 80.88% of the cases. Today that number shrinks to 31.2% of the cases at best, assuming category (5) means the employee was totally at fault.
At common law the employer had the duty to provide a reasonably safe place to work, and to provide safe appliances, tools, and equipment; to provide a sufficient number of suitable and competent fellow servants to permit safe performance of the work; to provide a warning to the worker of an unusual hazard; and to make and enforce safety rules. 62

If a workers' compensation law is still needed, it should be administered by an independent judiciary with an independent appellate tribunal and it should cover all employees and all employments. The current Florida law covers only workers in employments with four or more employees. Small businesses with fewer than four employees and no Worker's Compensation coverage are not immune from suit for negligence.63 Does anyone hear them complaining that liability suits are ruining them?

Judges of Compensation Claims (JCC's) were once appointed based upon the recommendation of a judicial nominating commission. The governor was required to retain them in office if the nominating commission found them qualified after each four year term.64 In 1994 the law changed. The JCC's now serve at the whim of whatever political party has its hands on the Governor's office.65 Every workers' compensation judge currently sitting comes up for reappointment every four years. Each Judge must now go before a nominating commission. If found qualified, the name of the sitting judge is sent to the Governor, along with two other names, from which the Governor can pick one, or the Governor can request three additional names from the nominating commission.66 In this fashion, the Governor alone can control whether a qualified sitting judge gets reappointed, or the Governor can select someone else to take that judge's place. A qualified sitting judge can be removed from office for political reasons alone without a ray of sunshine on the process.

FIRST,TAKE AWAY THE JURY, THEN THE VOTE, WHAT'S NEXT ?

If it were up to industry, appeals of workers compensation awards would be before an Industrial Relations Commission which could also be politically controlled instead of to the First District Court of Appeal. The District Courts in Florida are arranged geographically. Each district represents a distinct portion of the population and is responsible to that portion. The Judges of each district must face election periodically to determine if they should be retained in office. Only the electors in their assigned districts vote for or against them. All of the appeals of all worker compensation orders in the entire state go to the First DCA. By creating this system the legislature has disenfranchised the citizens of all the other districts from voting for judges who decide what is usually the last appeal of a compensation order. It is usually the last appeal because there is very little chance that a compensation case will be heard by the Supreme Court. By putting all appeals of worker compensation cases under the jurisdiction of the First DCA, it became virtually impossible for conflict to occur as between the various District Courts. Conflict jurisdiction is the most common way to get the Supreme Court to accept jurisdiction. Hence, other than for the occasional Constitutional challenge and an occasional certified question of great public importance there is no longer any right to appeal a compensation case to the Supreme Court. The First DCA has the final say as to whether a certified question is sent to the Supreme Court. The Supreme Court does not have to accept jurisdiction of a certified question. As comedian Yakov Smirnoff would say, "What a country!".

ADMINISTRATIVE ABUSES

Former United States Chief Justice, Charles Evans Hughes, is quoted as saying:
"The power of administrative bodies to make findings of fact which may be treated as conclusive, if there is evidence both ways, is a power of enormous consequence. An unscrupulous administrator might be tempted to say 'let me find the facts for the people of my country, and I care little who lays down the general principles.'"67

Former United States Chief Justice Harlan F. Stone in an address to the New Jersey State Bar Association in 1921 commented:
"In recent years we have been trying some dangerous experiments in autocracy in this country, in passing numerous laws under which administrative officers are given extraordinary powers over the liberty and property of individuals without those safeguards afforded by judicial review and by our traditional legal procedure."68

The New Jersey State Bar Association in a statement explaining why a system such as workers' compensation should not exist at all anymore, and certainly should not be run by an administrative agency, said:
"In a society where a significant portion of the population is dependent upon social welfare, decisions about eligibility for benefits are among the most important that a government can make. By one set of values the granting of a license to broadcast over a television channel, or to build a hydroelectric project on a river, might seem of more far reaching significance. But in a society that considers the individual as its basic unit a decision affecting the life of a person or a family should not be taken by means that would be unfair for a television station or a power company. Indeed, full adjudicatory procedures are far more appropriate in welfare cases than in most of the areas of administrative procedure."69

One only has to imagine a local government hearing officer appointed by a local government to determine just compensation for a taking by the local government in a hearing in which the rules of procedure are set by the local government and any appeal is to a commission appointed by the local government. Does this sound like the old U. S. of A. ? It's not even constitutional under Art. V of the Florida Constitution which restricts Quasi-Judicial powers to matters connected to the function of their offices.

In an article written for the Florida Bar Journal (April 1997) author Robert C. Downie II suggested amending the Constitution to protect an owner from losing his property without true access to the courts. Will Florida protect land or limbs or neither?

We don't need to protect injured workers from their employers any longer, and we no longer need to protect society from having injured workers as a burden. The system of trial by jury, to determine responsibility for and the amount of damages awarded to an injured worker, will work just fine and probably just as fast as our turtle paced Worker's Compensation system. Ask any injured worker whose claim is denied how long it takes to get his case heard in Dade County.

 

IT'S FAST, IT'S SELF EXECUTING,THERE ARE SAFEGUARDS...

The claimant, as he or she is called, first has to try to reach the unreachable insurance adjuster and attempt to "work things out". If that fails the next step is to file a "request for assistance" with the Employee Assistance Office. If that doesn't work (or the EAO is too busy to get to the request in thirty days), a petition may be filed. If filed properly (a big if) the "Docketing Judge" will enter a docketing order referring the claim to the assigned JCC who must then refer the matter for mandatory mediation before a State appointed mediator. There are only three full time mediators presently serving Dade County. Of course if the petitioner failed to dot his "i"'s or cross those "t"'s the petition will be dismissed and the petitioner may file a new one within 30 days. Some docketing orders are not entered in Dade County for more than six months after the petition is served. The wait for mediation is another six months or longer. Then comes the problem of setting a pre-trial hearing followed by a final hearing.70 Don't let the word "final" fool you. Hearings in Dade County usually are set for an hour and a half. If the hearing doesn't conclude, you wait another few months for a second "final" hearing. And don't let the mandatory time limits contained in the statute fool you. There is no way that a mediation with a state mediator or even an adjunct mediator can be held within 21 days of the filing of a petition as mandated by Fla. Stat. 440.25 (1) (1993). It looks good on paper but since it favors the workingman, it will never be funded. In the mid 1970's there were nine full time Deputy Commissioners to hear and adjudicate compensation claims venued in Dade/Monroe Counties. Since then the population of Dade has increased and the volume of claims has risen sharply. In the Circuit Courts the number of judges has increased to handle their workload. We now call our worker's compensation adjudicators "Judges of Compensation Claims (JCC's)" but there are only five of them assigned to Dade/Monroe Counties.

The Division of Worker's Compensation publishes an annual report which can now be read on the World Wide Web at http://www.les.state.fl.us/DWC/. I can't seem to find any statistics concerning the fines levied against employers who fail to fulfill their obligations under Fla. Stat. 440.15 (6) (1993), the "Obligation to Rehire" section. We do know that a highly touted "Preferred Worker Program" designed to spur potential employers to hire previously injured workers was established by Fla. Stat. 440.49(8)(1993). The program has issued, as of June 30, 1996, (30 months after the law took effect) a total of 61 Preferred Worker Cards. 71 Of these 61 cards two had actually been submitted by employers requesting premium reimbursements.

The multitude of social welfare programs and insurance benefits available to injured workers while they wait for their day in court will protect them, their families and society as a whole. A court and a jury which must use the comparative negligence standard, rather than the harsh common law rule of contributory negligence to determine whether or not an employer should be held liable, and to determine the amount of damages is preferable to the martial law imposed by current Worker Compensation laws. Florida employers, if sued successfully, are required to pay only their pro rata share of any damages awarded.72 When Worker's Compensation laws were first proposed there was also a lack of insurance available to cover the risks. Today there is a great deal of competition for insurance and reinsurance premium dollars.

CONCLUSION

Industry, after first demanding passage of worker's compensation laws for protection from suit now insists that workers' compensation is an oppressive system on them. That it costs too much, delivers too few benefits to injured workers, and too many dollars to the medical providers and attorneys involved in the system. If that be the case, let industry join the effort to repeal workers' compensation laws or to revise the constitution to render them unconstitutional. Repeal of workers' compensation laws providing immunity for grossly negligent and unsafe acts of industry will provide an incentive to employers to provide a safe place to work. The payment of minuscule benefits to severely injured workers, and the immunity from suit from those workers or their dependents, has made possible all the horror stories. Repeal would cut the cost of Worker's Compensation to ZERO, and foster safer work places.

As a citizen and as an attorney who has represented injured workers for over 20 years, I suggest repeal of the workers' compensation law in the State of Florida or an amendment to the Florida Constitution accomplishing the same result. I ask for an end to the use of the police power of the state against employees and in favor of industry. I call for the state to stop exercising the police power when it is no longer necessary to do so. For over 60 years in Florida employees have lost their constitutional rights. Isn't that long enough ?

"Laws and institutions must go hand in hand with the progress of the human mind...We might as well require a man to wear the coat that fitted him as a boy, as civilized society to remain ever under the regime of their ancestors." Thomas Jefferson, 3rd president of the United States.

In 1996 the Florida Legislature appropriated $600,000.00 to provide metal detectors and other forms of security for the offices of the Judges of Worker's Compensation Claims. Attorney Kennie Edwards was gunned down and killed in his office and attorney Arthur Pumpian was shot in his office by a disgruntled workers compensation claimant. A physician in Miami was held hostage at gunpoint by a workers compensation patient. Bomb threats became commonplace at the JCC's offices in West Palm Beach.

A popular vote to revise the Florida Constitution seems to be the least destructive way of allowing the governed to vote (for the first time) on the issue of accepting Worker's Compensation benefits and procedures in place of common law rights to a trial by jury. One is reminded of our Declaration of Independence which contains the following language:
"We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.-That to secure these rights, Governments are instituted among men, deriving their just powers from the consent of the governed.-That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while the evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security".

Of course, industry will not join in the call for a repeal of workers' compensation laws in the State of Florida or constitutional revision, no matter how expensive workers compensation premiums get. Instead I believe industry will continue to plead (tongue in cheek):
"Please Mr. Legislator, please don't make us pay just a little bit of benefits to (almost) every employee hurt on the job, please don't do that to us Mr. Legislator..."

If there is even the possibility that the Constitution Revision Commission may address the continuing use of the police power of the state against injured workers, industry will plead (this time for real):
"Please don't make us go before a jury when we act negligent, grossly negligent, reckless, wanton or imprudent and cause injury to our employees".


MARK L. ZIENTZ, ESQ.
FL BAR #150168
FLORIDA BAR BOARD CERTIFIED IN WORKER'S COMPENSATION (1988)
Also admitted to practice in New York and Montana.

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ENDNOTES

 

1.Fla. Stat. 440.12 (3) (1973)
2.Fla. Stat. 440.12 (2) (1937) amended ch. 79-40, Laws 1979

3.Fla. Stat 440.15 (3) (1973) - 35 weeks at $80.00 per week
4.Fla. Stat. 440.15(3)(u) (1973)
5.Fla. Stat. 440.15 (1) (1973)
6.Fla. Stat. 440.15 (3)(a)3 (1993) 30 weeks at $63.34 per week.
7.Fla. Stat. 440.15 (3)(b) (1993) and 440.15 (1)(b) (1993)
8.ASSUME AWW OF $190.00 (1997 MIN. WAGE)

         7/1/73 7/1/97

RATING                  10% PPI             10% PPI

[MAX CR                  $80.00 $479.00]

AWW                  $190.00 $190.00

C/R %
OF AWW
                  60% 66 2/3%

ACTUAL
C/R
                 $80.00 (MAX) $126.67

10%
IMPAIRMENT
       35 WEEKS* 30 WEEKS **

RATE OF
COMPENSATION
    $80.00 PER WEEK $63.34 (1/2                                                                                 COMPENSATION RATE)

10% BENEFIT          $2,800.00***             $1,900.20****
                                    (MINIMUM)     (MAXIMUM)

(DIFFERENCE IN VALUE OF 10% IMPAIRMENT IS $899.80 MORE IN 1973 AT THE VERY LEAST)

------------------------------------------------------------------

* 10% of 350 Weeks ** 3 weeks for each % point

*** Or loss of wage earning capacity, whichever is greater, or PTD

**** No possibility of more money. PTD only if catastrophic injury
(10% impairment presupposes no catastrophic injury.
NOTE: Under Florida Impairment rating Guide (1992) surgically treated neck or lower back herniated disc (including fusion) with objective neurological findings = 9% IMPAIRMENT

 

 

9.Fla. Stat. 440.15 (3) (1979)
10.Remarks by Richard W. Ervin to Worker's Compensation Deputy Commissioners Meeting April 7, 1986 Ramada Inn East, Tallahassee, Fla.
11. Keenan and Sons Demolition, Inc. v. Dipaolo, Fourth District Case No. 94-1820 (4/26/95), Joseph Lee Hawkins et al. v. Cordy, Third District Case No. 94-238 (1994), Kline v. Rubio, Third District Case No. 94-2422 (4/5/95), Sheryl v. Corbett Crane Service, Fifth District Case No. 94-81 (5/5/95).
12.Smith v. Piezo Technology, 427 So.2d 182(Fla. 1983)
13.Fla. Stat. 440.09 (4)(1993)
14.Armando Montes de Oca v. Orkin, 692 So2 257 (Fla. 3 DCA 1997) Rev Den. 699 So2nd 1374 (Fla. 1997)
15.Fla. Stat. 440.092(5) (1990)
16.Grissom v. Commercial Insurance Co. 610 So.2d 1299 (1 DCA 1992); 43 Am Jur 2d Insurance 260 (1985); 30 Fla Jur 2d 389 (1981)
17. 642 So2nd 1115 (3rd DCA 1994)
18.652 So2nd 964 (3rd DCA 1995)
19.653 So2nd 1130 (4th DCA 1995)
20.498 So. 2d 882 (Fla 1986)
21.610 So. 2d 111 (3rd DCA 1992)
22.498 So. 2d 879 (Fla 1986)
23.Fla. Stat. 440.09 (5) (1993)
24.Uncle Remus, with apologies
25.Justice Ervin,supra n.10
26. Matter of Jensen v. Southern Pacific Co., 215 New York 514 (1915).

27. New York Central Railroad Company v. White, 243 U.S. 188 (1916).
28. Mountain Timber Company v. Washington, 243 U.S. 219 (1916).
29. "From Contributory to Comparative Negligence: A Needed Law Reform" Frank Maloney, Volume 11, Summer 1958, University of Florida Law Review pg. 135.
30. Fidelity and Casualty Company of New York v. Bedingfield, 60 So 2d 489 (Fla. 1952).
31. Letter to Thomas Paine, 11 July 1789, in the papers of Thomas Jefferson 15:269 (Julian P. Boyd ed. 1958)
32. Section 11, in federal and state constitutions 7:3812, 3814 (Francis N. Thorpe ed. 1909)
33. Duff Hotel Company v. Ficara, 7 So 2d 790 (Fla. 1940); Weathers v. Cauthens, 12 So 2d 294 (Fla. 1943); Protectu Awning and Shutter Company v. Cline, 16 So 2d 342 (Fla. 1944); General Properties v. Greening, 18 So 2d 908; Lee Engineering and Construction Company v. Fellows, 209 So 2d 454 (Fla. 1968); Florida Erection Services v. McDonald, 395 So 2d 203 (Fla. 1981).
34.Crawford v. Benrus Market, 40 So 2d 889 (Fla 1949)
35.Fla. Stat. 440.26 (1936)
36.Laws of 1990, ch 90-201, sec 26, eff. July 1, 1990
37.440.015 Fla. Stat. (1993)
38.440.02(32) Fla. Stat. (1993)
39.Fla. Stat. 440.092(1)-(5)(1990)
40.Fla. Stat. 440.101 (1993)
41.Fla. Stat. 440.13(3) repealed eff. 1/1/94
42. Terry Heckford v. Florida Department of Corrections 699 So2nd 247 (1 DCA 1997), Rev. Den. 707 So2nd 1124 (Fla. 1998)
43.Butterworth Blasts Lawsuit Lunacy, Miami Herald August 3, 1995
44.Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
45.Palliative care is designed to keep an injured worker from getting worse after reaching maximum medical improvement. Remedial care is designed to improve a medical condition and is offered until maximum medical improvement is reached.

46. Fla. Stat. 440.13 (14) (c) (1993).
47.Fla. Stat. 440.02 (24) (1987) c.87-330 sec 1, eff July 1, 1987
48.Fla. Stat. 440.02 (24) (1990)
49.472 So. 2d. 877 (1st DCA 1985)
50. Source:Florida Census of Fatal Occupational Injuries, 1994 fig.3.4.
51.Fla. Stat. 768.16 et. seq. Florida's Wrongful Death Statute.
52.Mullarkey v. Florida Feed Mills, 268 So.2d 363 (Fla. 1972).
53.Fla. Stat 440.15 (2)(a) (1973)
54.Fla. Stat. 440.15(4) (1973)
55.Fla. Stat. 440.15 (2)(a) and (4)(b) (1993)
56. Escambia County Sheriff's Dept. v. Grice 22 692 So2nd 896 (Fla 1997)
57. Fla. Stat. 440.21 (1973)
58.Pepper v. Pepper, 66 So. 2d 280, 284 (Fla. 1953)
59.268 So. 2d 363 (Fla. 1972)
60.Kluger v. White,281 So.2d 1 (Fla.1973).
61.Bureau of Labor Bulletin (1908)
62.Larson, The Law of Workmen's Compensation, 4.30.
63.Howard S. Solomon v. Judy Huddleston, 657 So. 2d. 78 ( Fla 1 DCA 1995)
64.Fla. Stat. 440.45(2) (1974)c. 74-197, sec 20 eff. Oct. 1, 1974
65.Jones v. Chiles, 638 So2nd 48 (Fla. 1994)
66.Fla. Stat. 440.45(2)(c) (1993)
67.Important Work of Uncle Sam's Lawyers, 17 American Bar Association Journal 237,238 (1931)
68.New Jersey State Bar Association Yearbook, pgs 49,60 (1921-22)

69. Charles A. Reich, "Individual Rights and Social Welfare: The Emerging Legal Issues" 74 Yale Law Journal 1245, 1253 (1965)
70. Fla. Stat. 440.191, 440.192, 440.25 (1993).
71. The Division Of Worker's Compensation 1996 Annual Report pg.208.
72.Fla. Stat. 768.81 (1991)