Tuesday, January 5, 2016
Procedural Flaws Cited by Defense As Basis to Dismiss Stahl Case
by Sherri Okamoto (Legal Editor) | State: Florida | Topic: Top
The employer involved in a constitutional challenge to the Florida comp system closed out 2015 by asking the state Supreme Court to toss the case on procedural grounds, or rescind its grant of review.
“It would be improper for an appellate court to review the constitutionality of Florida’s Workers’ Compensation Act in this administrative appeal," said Kenneth Bell, a former Florida Supreme Court justice who is serving as the lead defense attorney in Stahl v. Hialeah Hospital.
He issued a statement on Monday saying the court has only "a scant 20-page record devoid of any relevant evidence" from which it is being asked to consider whether the Florida comp system is providing workers with a fair substitute for a tort claim.
Bell said he thought this provided an inadequate basis for the court to get to the constitutional questions being raised by Daniel Stahl.
Instead, Bell said, "the act’s opponents should file a civil action where all interested parties can be fairly heard and the relevant evidence presented."
The brief Bell filed last Wednesday with co-counsel Kimberly Fernandes of Kelley Kronenberg focused heavily on the "unusual history" of Stahl's case.
Stahl had injured his back in December 2003 while working as a nurse at Hialeah Hospital. He filed a workers’ compensation claim and received benefits for a 6% permanent impairment.
He later filed a claim seeking additional benefits, which he pursued for over three years. Stahl then abandoned the claim and filed a declaratory judgment action in circuit court facially challenging the constitutionality of the 2003 version of Florida Statutes Section 440.15(3).
That was the year Florida lawmakers amended the statute to eliminate the payment of any compensation for a permanent loss of wage-earning capacity that is not total in character.
A circuit court judge dismissed the declaratory judgment action, finding Stahl lacked standing to advance it. The 3rd District Court of Appeal upheld this decision in January 2011.
Stahl then advanced a facial challenge to Section 440.15(3) before a judge of compensation claims. He filed a petition for benefits requesting “compensation for disability, partial in nature, from MMI to date.”
At the hearing on his petition Stahl conceded that Florida law did not provide for the benefits he sought, and he agreed to have an order entered against him on his claim. Stahl appealed the order to the 1st DCA, and the appellate court affirmed without a written opinion. Stahl later requested a written opinion, which the court issued last March.
The court ruled that the 1994 amendment of the Florida comp scheme to impose a requirement that workers at MMI pay a $10 copay for medical visits passed constitutional muster. It also found that the legislature's elimination of permanent partial disability benefits in 2003 did not leave the comp system an inadequate exclusive replacement remedy for a tort action.
Hialeah Hospital is arguing to the Supreme Court that the 1st DCA's decision is correct, but that isn't for the Supreme Court to say because this issue falls outside the scope of review of the underlying proceedings before the judge of compensation claims.
What's more, they say Stahl did not have standing to bring his challenge to the constitutionality of the legislative elimination of permanent partial disability benefits because he never established that he would have been entitled to such benefits to begin with.
The hospital also insists that the state Attorney General should have been joined to the case and given notice of the constitutional challenge. "Failure to properly serve the Attorney General can be grounds for dismissal," the hospital contends.
Should the court be willing to overlook these procedural issues, the hospital contends that "the impairment benefits available to compensate permanent partial disabilities provide an adequate remedy and the $10 co-pay associated with post-MMI medical care is a de minimus burden." As such, the hospital insists the comp system remains constitutionally sound.
The hospital filed its answer brief on Dec. 30 – so its amicus have 10 days from that point to get their briefs filed.
So far, the Florida Chamber of Commerce, the Florida Justice Reform Institute, the Florida Association of Insurance Agents, the American Association of Independent Claims Professionals, the Florida League of Cities, Associated Industries of Florida, the Florida Retail Federation, the National Federation of Independent Business, the Florida United Businesses Association and the Florida Roofing, Sheet Metal and Air Conditioning Contractors Association have all received permission from the court to file amicus briefs in support of the hospital.
Rayford Taylor of Casey Gilson is preparing a joint amicus brief for the insurance groups. He said Monday that he plans to focus his argument on the idea that "if you look at the comp system as a whole, it's still a good bargain."
He said Florida case law has established that when a statutory scheme is being challenged, "you can't just pick out one thing and say this is unconstitutional." The scheme needs to be considered "in the aggregate," Taylor said.
When viewed though this lens, Taylor suggested that a comp remedy is hardly inadequate as a remedy. For instance, he noted, "cases go to trial dramatically faster in comp than they do in the civil tort system," and the cost of litigating the claim is free to a worker.
Taylor also noted that workers will receive medical and indemnity benefits while the case is being litigated, whereas civil litigants "get nothing until the case is over" and then they only collect if they've won.
Also, workers are not subject to having their recoveries reduced if their conduct contributed to their injury, the way civil recoveries are adjusted for comparative negligence, he said.
Thus, "for the vast majority of employees, comp is a much better deal," Taylor opined.
Tamela Perdue, general counsel for the Associated Industries of Florida, said the group's amicus brief is "really going to focus on the provision of benefits."
She said that the Florida comp system provides "a lot of benefits" – including swimming pools for hydrotherapy, the payment of attendant care wages, and wheelchair accessibility ramps for homes – so "to say that a $10 copay makes it inadequate really ignores how much it does."
Perdue said she also believes that the legislature didn't get rid of PPD benefits – it just "changed the nomenclature." Benefits for partial permanent disabilities "got lumped in" with other forms of benefits that had been payable prior to 2003 to become the impairment income benefits that are payable under the act, she said.
"So we still give that benefit; it's just called something else," Perdue explained.
William Large, president of the Florida Justice Reform Institute, said his group's brief will focus on what it perceives to be the procedural problems in the appeal.
These include the fact that "the claimant as the judge of compensation claims to forgo a hearing on his petition for benefits altogether and enter a final merits order." Accordingly, "at the claimant's request, the judge of compensation claims took no evidence and held no hearing where the claimant could have argued the denial of benefits was unfair," Large said.
The end result, he contended, is that "the claimant presented no evidence to establish that the workers' compensation laws discriminated against him, denied him due process, or denied him of some other fundamental rights."
Miami attorney Mark Zientz is representing Stahl. He said he had no immediate comment on the arguments being raised by the hospital since he was still reviewing the answer brief on Monday.
He has 30 days from the date of filing to serve a reply.
Florida Workers' Advocates, the Florida Justice Association, the National Employment Lawyers Association, Fraternal Order of Police, the Police Benevolent Association, the International Union of Police Associations, the Florida Association of State Troopers, Florida Professional Firefighters, Voices Inc. and the Workers' Injury Law and Advocacy Group have all filed amicus briefs backing Stahl's position.
Attorney Michael Winer filed the amicus brief for the Florida Justice Association. He said Monday that he too was still reviewing the hospital's answer brief, but "if they're saying that bringing a claim through the JCC wasn't the proper remedy and the negligence claim has been dismissed, then how is (Stahl) supposed to get judicial review of these issues?"
The court docket is here.
The hospital's brief is here.
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