Workers’ Compensation And Due Process

We think it’s important always to remind readers of the “grand bargain” that led to the creation of the system under which an injured employee can file a workers’ compensation claim. Under this bargain employees injured at work gave up the right to sue their employers in court in return for an administrative system that provides the workers sufficient benefits to see them through the healing process. Each state has its own version of workers’ compensation.

Here in Virginia we are fortunate to have a Workers’ Compensation Act that truly benefits injured employees. The workers comp system begins with the filing of a claim with the Workers’ Compensation Commission. The claim asserts an injury arising out of the employee’s work. Benefits payable for the injury include medical care paid for by the employer and monetary compensation for various kinds of disability (including temporary total, temporary partial, and permanent partial).

Although employees hurt on the job in Virginia have a system which works, it’s fair to say that in other states there are concerted efforts to gut workers’ compensation benefits. Anyone in Virginia who works as an employee should be concerned about these rumblings.

A November 19, 2015, report by Sherri Okamoto of WorkCompCentral shows that the Florida legislature has repeatedly chipped away at the state’s workers’ compensation law. Decades ago it eliminated a provision that allowed an employee to opt-out of the workers’ compensation system entirely and instead sue the employer in court. In 1994 the legislature imposed a $10 co-pay for medical visits after a claimant attains maximum medical improvement, despite a 1991 ruling by the Supreme Court of Florida that “full medical care” is a key component of a constitutional comp system.

The Florida legislature perhaps crossed a line in 2003 when it amended the state’s workers’ compensation act to end the payment of compensation for a permanent partial loss of wage-earning capacity. In 2014 a Florida lawyer who represents workers’ compensation claimants persuaded a circuit court judge that the 2003 change was the straw that broke the camel’s back: The judge ruled that the benefits under the act as amended are so meager that the act violates the right of employees to due process.

The intermediate appeals court in Florida threw out the circuit court judge’s ruling on a procedural issue. The case may now go to the state supreme court.

The moral of the story in Florida is this: If there’s a bargain in which one group gives up something to gain something else, and then the thing they obtain is hollowed out . . . the bargain is no longer a bargain.

When it comes to workers’ compensation law, there are ominous clouds in lots of states. Let’s hope the stormy weather doesn’t come to Virginia.

Our enduring advice is that an injured worker should always seek legal counsel – and fast! HammondTownsend is here to serve you.

Here’s the link for WorkCompCentral:

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