With Commentary By: Greg Hubachek and Bobby Truitt
On August 13th, news of Miami-Dade Circuit Judge Jorge Cueto’s ruling in the landmark Padgett case in Florida broke, and the comp world turned in unison to listen. Judge Cueto issued his final decision in the case, which he interpreted as a challenge to the overall constitutionality of the workers’ compensation system in Florida, by granting summary judgment in favor of the plaintiffs.
Louisiana attorney and president of the Workers’ Injury Law and Advocacy Group (WILG) Charles Davoli indicated that the ruling could have serious repercussions for other states with statutory limits on benefits and told WorkCompCentral that such benefits, “can be eroded to the point where there is a breach of the century old quid-pro-quo [and there is no longer a] fair exchange for exclusivity.”
Louisiana Comp Blog spoke with claimant attorney Greg Hubachek of Workers’ Compensation, LLC and defense and claimant attorney Bobby Truitt of The Truitt Law Firm LLC, to get their take on the issue, and whether or not Louisiana could face similar challenges to its Comp Act. In other words, when does the exclusive remedy of workers’ comp become inadequate to address the needs and rights of injured workers and their employers equally?
In response to Davoli’s comments, Hubachek explained: “The recent changes to workers’ compensation acts nationwide do implicate the equity of the ‘quid-pro-quo’ which created the workers’ compensation system, specifically, a waiver of tort remedy in exchange for the certainty of workers’ compensation. As the value of workers’ compensation benefits are reduced, the equity involved with waiver of the tort remedy is clearly called into question.”
Truitt: “We’re treading into due process issues [under the deadlines with the MTGs.] This is fertile ground for litigation.”
Bobby Truitt responded in accord with Hubachek, explaining: “I think it’s getting dangerously close to a violation [of the quid-pro-quo].” Regarding the issues as to the responsiveness of employers and insurers in getting medical care to injured workers under the new Medical Treatment Guidelines in our state, Truitt added, “We’re treading into due process issues there. This is fertile ground for litigation.”
Read on for more information about the case and full commentary from Hubachek and Truitt.
Cueto’s strongly worded twenty-page opinion comes as a result of a tort case heard last month. That initial case was filed by Julio Cortes against his employer Velda Farms. Velda denied the validity of the tort suit on the basis of the “exclusive remedy.” The common understanding of the “exclusive remedy” is that workers’ compensation is usually the only outlet for an injured worker to recover from an employer for damages related to a workplace injury, no tort allowed. Upon media coverage of the Cortes case, two other plaintiffs (Romy Harrison and Elsa Padgett) intervened on the case with the aid of the Florida Workers’ Advocates (FWA) and the WILG.
Last month, Cueto issued a statement requesting that Florida Attorney General Pam Bondi show cause as to why he should not issue summary judgment in favor of the plaintiffs and in so doing declare the workers’ compensation system in Florida as it stands today facially unconstitutional. Bondi neglected to respond but Chief Deputy Solicitor General Adam Tanenbaum filed a response on her behalf. See the Tanenbaum response here.
Media Scrutiny and Additional Cases
The Miami Herald in their report, stated that Cueto’s decision, “declared Florida’s long-controversial workers’ compensation law unconstitutional Wednesday, [Cueto reasoned that] successive state legislatures had so diminished medical care and wage-loss benefits for injured workers that the statute now violates employees’ ‘fundamental’ rights.” Part of the discussion surrounding these “fundamental” rights are the amendments made to Florida’s comp act in 2003, which wholly eliminated any compensation for permanent disability that is not total in nature. Those amendments also went further and placed an absolute cap of five years on permanent total disability benefits in general and established an automatic cut off of benefits once a claimant reaches 75 years of age.
Read a recap of Cueto’s judgment from WorkCompCentral here. Get the local take from the Miami Herald here. Read Cueto’s order for summary judgment here.
Such massive challenges to Florida’s workers’ compensation system are becoming even more noteworthy because of two additional workers’ compensation cases that have risen to the state Supreme Court. The first, Westphal v. City of St. Petersburg, is challenging the aforementioned statutory limits on the payment of temporary total disability benefits. The second, Castellanos v. Next Door Co., takes on the cap on claimant attorney’s fees. Both of those cases have also been listed as “high-profile” by the Supreme Court.
On August 28th, Florida Attorney General Pam Bondi filed the state’s notice of appeal with the 3rd District Court of Appeal. The case will now be called State of Florida v. Florida Workers’ Advocates. The 3rd District can either consider the case on its merits or pass it on the state Supreme Court. Read Bondi’s Notice of Appeal here.
As of now, both sides of the work comp legal aisle are speculating as to the significance of Cueto’s judgment. Here in Louisiana, reform has been the name of the game since 2011 when the Medical Treatment Guidelines went into effect. That implementation, combined with the Dardar decision earlier this year (which affirmed that the guidelines apply retroactively) regardless of the date of injury, has provoked discussion as to the potential local implications of the case.
Hubachek’s Call to Action, Truitt’s Warning
In terms of general comparison between Florida’s reforms and ours in Louisiana, Hubachek explains: “The recent revisions to the Louisiana Workers’ Compensation Act do not appear as Draconian as the new Florida provisions. Accordingly, the arguments advanced in the Florida case are probably not relevant to our circumstance in Louisiana at this moment, however, it is a cautionary tale.”
When asked to expand upon his assessment of the Padgett case as a cautionary tale, Hubachek suggested careful scrutiny of the law for fairness and equity of entitlement. He asserts: “it is important for all Louisiana stakeholders to remain vigilant in our respective assessment of the recent changes to the Louisiana Workers’ Compensation Act. We must continue to study actual results of the Medical Treatment Schedule (MTS) and the new 1002 process.” Truitt, addressing the same issue of equity explained, “What I read between the lines in the decision of this court and others is that workers’ comp has not kept up with economic changes. It’s outdated. This may be an area that also needs to be addressed in the Legislature.”
On the Dardar decision’s role in this debate, Hubachek admits that the potential to undermine meaningful progress for injured workers and payers and employers is present. He explains: “Several months ago, Justice Knoll [of the Louisiana Supreme Court] voiced these concerns during oral argument in the Dardar case. On a local level, I do not believe that the recent changes to the Louisiana Workers’ Compensation Act, for example, the MTS and the new 1002 process, violate the quid-pro-quo themselves. However, we must be careful to ensure that these new procedures are not abused to deprive injured employees of the workers’ compensation benefits which they deserve. I believe that Justice Knoll (who clearly ruled in favor of retroactivity of the MTS in the Dardar decision) voiced this same specific concern from the bench. Moreover, the ruling in Florida should serve as an omen of the ills associated with taking reform of workers’ compensation too far. In sum, if there is no meaningful remedy offered by workers’ compensation, then the employers will certainly lose their immunity from civil action(s).”
Hubachek: “The intent of the MTS and the new 1002 process was clear. Now, we must demand that our new provisions are delivering appropriate and accurate workers’ compensation benefits to the citizen-employees of Louisiana.”
Truitt, in a different vein, opines that upon assessing the employer/insurer and claimant sides on balance prior to the Medical Treatment Guidelines “the system wasn’t really broken [before implementation of the MTGs].” Truitt also weighed in on the potential for a challenge in Louisiana similar to Cueto’s decision. He said, “When you’ve got somebody that never sees the patient rejecting medical care just because it doesn’t fit the guidelines, well, that’s problematic.” Truitt added that the administrative difficulties inherent in compliance to the new regulations are an added obstacle to the care of the injured worker, saying, “Some of these changes with the MTGs are horrible…just a morass of deadlines for both employers and employees. I have heard many people on both sides of the bar and even the bench complain about adding another layer of rules and regulations, when the intended goal was to streamline the process.”
Hubachek advocates for continual assessments of the new system, stating that we need “empirical evidence which demonstrates that medical treatment is being delivered to injured employees in a more timely fashion. Moreover, we must determine whether the new 1002 process results in more rapid delivery of appropriate workers’ compensation benefits of all categories.” He also emphasizes the importance of integrity in following through with our own controversial amendments. Hubachek explains: “The intent of the MTS and the new 1002 process was clear. Now, we must demand that our new provisions are delivering appropriate and accurate workers’ compensation benefits to the citizen-employees of Louisiana. If we achieve that goal, then the citizen-employees, all stakeholders and the Louisiana economy will thrive.”
The exclusive remedy in workers’ compensation is a controversial topic, especially as the debate surrounding Cueto’s ruling gets increasingly heated. Louisiana Comp Blog wholeheartedly invites your comments and concerns, and encourages Letters to the Editor. Please contact us with your take on the issue.
About the Commentators:
Greg Hubachek is a partner in the Metairie law firm of Workers’ Compensation, LLC which was founded in 1993. He and his fellow attorneys practice almost exclusively in workers’ compensation law on behalf of claimants. Hubachek occasionally also represents healthcare providers.
Bobby Truitt is the founding partner of The Truitt Law Firm, LLC in Covington. The Truitt Law Firm provides representation for plaintiffs and defendants in personal injury and workers’ comp cases. Their clients include AIG Insurance Group, CVS, Volunteers of America and Atlas Van Lines.