Did Justices Up for Retention Invent New Workers' Compensation Law Out of Thin Air?

By: Eric Giunta | Posted: October 20, 2012 3:55 AM
Workers Comp
Three Florida Supreme Court justices are up for retention on the November ballot, and Sunshine State News is the only source that is examining their judicial record. In this latest installment, we explore a landmark ruling affecting workers' compensation claims.

Although Justices Barbara Pariente, R. Fred Lewis, and Peggy Quince are insisting that voters should ignore their rulings when they head to the polls and consider only whether these justices have ever committed a crime, their critics and other legal scholars say otherwise: it is absolutely relevant to their retention that voters consider whether these justices are interpreting relevant law according to its original public meaning, or whether they are activists who ignore the law and impose their own personal moral philosophy on cases that come before them.

(For the last several weeks Sunshine State News has reached out to the three justices [who are traveling around the state to sit down with newspaper editorial boards] to interview for this series. In September, we were notified by a representative of their joint campaign that they are specifically refusing to interview with the News, which is Florida’s only center-right news organization.)

Last week, we took a look at these justices’ ruling in the 2006 case Bush v. Holmes, which concerned the state constitutionality of private school vouchers. Today, we examine another ruling critics claim is a textbook example of judicial activism: Aguilera v. Inservices Inc. (2005).

The plaintiff in the case was one Rodrigo Aguilera, who in 1999 suffered serious injuries on the job when he was struck by an electric forklift and pushed up against a pallet. He was rushed to an emergency room, testing revealed that he had blood in his urine, he was given medication, and advised by doctors that he could return to “limited work with restrictions.”

Aguilera’s condition worsened, but his workers’ compensation insurance carrier, Inservices, refused repeated requests for further examination and treatment. Aguilera’s condition got so bad he eventually needed surgery, which was approved.

Throughout the ordeal, Aguilera never sought the emergency relief available under the Florida’s Workers’ Compensation Act, even though he was represented by an attorney. Instead, after finally receiving approval for his surgery, Aguilera sued Inservices for the common-law tort actions of breach of contract and intentional infliction of emotional distress.

The trial court ruled in Aguilera’s favor, while the appeals court ruled that, under the Florida statutes, Inservices was immune from all tort allegations arising out of the claims process. Aguilera appealed to the Florida Supreme Court, which heard his case in 2004.

Before examining how the Supreme Court ruled, it is important to see just what legal issues were at stake, and to appreciate that we need to briefly review the history behind modern workers‘ compensation laws.

Before 1935, the only recourse a worker in Florida had to recover for a work-related accident was to sue his employer civilly for negligence. However, under the common law (i.e., the centuries-in-the making, unwritten body of law that governs tort actions unless explicitly pre-empted by statute), an employer had three nearly-unbeatable defenses available to him: (1) that the injured employee was also negligent, (2) that the employee knew of the dangers involved in the work and “assumed the risks” of his employment, or (3) that the injury occurred because of the negligence of a co-worker.

It was very difficult to prevail against these defenses, but if an injured employee did prevail, there were no limits to how much compensation a jury could award him from his employer.

Beginning in the early 1900s, several states began to pre-empt the common law by passing statutes regulating the terms of workers’ compensation. Florida passed its own such Workers’ Compensation Act in 1935. This Act – today known as Section 440 of the Florida Statutes – did away with the old common-law rules and instituted a compromise intended to benefit both employer and employee: employers would have to provide employees with workers’ compensation insurance to cover work-related accidents, and in turn employers and their insurance carriers would be immune from being sued in court for these injuries.

As the Florida statute itself says:

“It is the intent of the Legislature that the Workers' Compensation Law be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker's return to gainful re-employment at a reasonable cost to the employer. ... The workers' compensation system in Florida is based on a mutual renunciation of common-law rights and defenses by employers and employees alike.”

Simple enough, right?

Four Florida Supreme Court justices – including Pariente, Lewis, and Quince – didn’t think so. They ruled that employees have a right to sue their employers’ insurance carriers for allegations arising out of (and not independent of) the accident claims process, even though the Florida statutes explicitly say that “the liability of a carrier to an employee or to anyone entitled to bring suit in the name of the employee shall be as provided in this chapter, which shall be exclusive and in place of all other liability.” (emphasis added)

As Justice Kenneth B. Bell noted in his dissent (joined by two other justices), Section 440 of the Florida statutes explicitly states that it and it alone governs liability for work-related accidents, and provides both emergency remedies and civil and criminal penalties for special cases like Aguilera’s:

“The [Workers’ Compensation] Act was intended to be the sole remedy for workers’ compensation injuries and ... it contains remedies specifi­cally designed for unfortunate cases like Aguilera’s where a claimant’s attempts to obtain proper medical care for work-related injuries are thwarted by a carrier. The Act does not ignore the reality that claimants will encounter problems with carriers and the Act provides remedies.”

In an appendix to his dissent, Bell detailed just all of the remedies Aguilera had available to him, and which he and his attorney failed to pursue.

Was Aguilera v. Inservices a good-faith interpretation and application of the original public intention of the state’s Workers’ Compensation Act, or was it an invention of new law based on personal disagreement or dissatisfaction with the Act’s exclusivity provisions? Readers can review the court’s opinion, and the two dissents, here and decide for themselves.

Reach Eric Giunta ategiunta@sunshinestatenews or at 954-235-9116.

Comments (10)

6:20PM OCT 26TH 2012
This is a direct question to the author (although y'all are welcome to comment):

He wrote: "The question is whether the justices interpreted the law according to its original public meaning, or whether they effectively made up a new law in order to reach a desired outcome based on their own public policy recommendations."

I have read the material and I still do not understand what you mean by the judges making up 'new law'.

How can I decide if they have made 'new law', if I don't know what it means?

Right now, it seems to me that they have not.
9:36PM OCT 24TH 2012
First - I am a hard-right conservative. By all intents and purposes that anyone who were to hear my stances on any hot-button topics, I'd be as far right as you can get without ending up in the Atlantic.

With that said, I find this article dis-ingenuous and misleading while pandering to an agenda to unseat 3 judges up for retention so Gov. Rick Scott can have his chance to appoint some judges.

In the case of Aguilera v Inservices, after reading a play-by-play, the workman's comp provider did a great disservice to Aguilera by blocking his treatment for a rather serious condition that could be very arguably and without much doubt stem from the type of trauma to the abdomen that Aguilera suffered.

The information you left out on how the insurance company handled his claims and the implication you made that his lawyer didn't work very hard to go through proper channels is absurd.

I've never read this news site before - I was actually searching for information on these judges court rulings because I agree - retention of a judge should be based on their rulings. However, your handling of this one case leaves me in much doubt of how you handle the rest of your news.

I am not looking for another MSNBC or CBS News even if it is from the side I'm on. And if I want scathing, political commentary, I'll listen to Rush Limbaugh. I came here for untainted information because it was the only place publishing court rulings information. I guess I was wrong about the taint.
Eric Giunta
10:14PM OCT 24TH 2012
Dear Christina:

Sunshine State News (SSN) is Florida's only center-right news organization. All newspapers have an ideological orientation, the difference between us and the rest is we don't lie about ours. We strive to be fair and balanced in our reporting of the stories we cover, but make no bones of the fact that when we do editorialize and analyze, we do so from a center-right perspective.

SSN is not in the business of endorsing candidates for any office, and so we haven't taken an editorial stance on the justices' merit retention. In this series, we're simply reviewing some of the justices' most controversial decisions, highlighting the reasons (taken straight from the dissents of fellow justices) some say these are examples of judicial activism, while leaving readers to draw their own conclusions.

Don't forget that the issue in this case was not whether the insurance provider improperly processed Aguilera's claim, but whether Aguilera pursued the correct legal remedy. The point isn't even whether Florida law provided the best remedy for Aguilera. The question is whether the justices interpreted the law according to its original public meaning, or whether they effectively made up a new law in order to reach a desired outcome based on their own public policy recommendations.

We encourage readers to review the majority's opinion, and then the dissents, and decide for themselves whether this and other rulings are sound ones.

And vote accordingly.
10:10PM OCT 26TH 2012
Yes, you must be right . . . ."SSN is not in the business of endorsing candidates for any office, and so we haven't taken an editorial stance on the justices' merit retention" or as you said it in another article, "We at Sunshine State News are not taking a stance for or against retention of the Justices" . . .

I guess that's why your leader Nancy Smith, for example, closed her October 8th article entitled "Check With the Supremes: Judiciary Doesn't Have to be Politically Independent" with:

"The justices in the Florida Supreme Court now are about as close to politics as anybody in the legislative branch of state government. It is frustrating to listen to their bluster. Of course they are political. Of course they make decisions -- both conscious and unconscious ones -- based on political favoritism.

We have an election upon us. Are you happy with these justices for six more years? It's a personal decision. But you folks who don't like the leftward lean of the justices' decisions have every right to vote against retention in November. Just as the justices will have every right to continue activist rulings."

Yes, no partisanship there . . . . no indication of a stance one way or another . . . . no use of demonizing comments like "It is frustrating to listen to their bluster" . . . yes, "fair and balanced" reporting, just like FoxNews . . . .

Eric Giunta
12:43AM OCT 27TH 2012

Nancy's opinion is her own, not that of Sunshine State News.

Also, an editorial column is not a news article. Editorials make no pretense of being "balanced."
6:04PM OCT 28TH 2012
Then perhaps in the future, you (and SSN) should just avoid sweeping generalizations as fact or making statements like:

(1) "we haven't taken an editorial stance on the justices' merit retention"

(2) "We at Sunshine State News are not taking a stance for or against retention of the Justices"

Yes, fair and balanced in your statements . . . even when they're easily misproven by your own quotes . . . . no one can read Nancy's comments and not realize which way she wants folks to vote . . . she's clearly indicating against retention, and no spin by you or SSN proves otherwise . . . . whether it's an editorial or not . . . .

Eric Giunta
6:57PM OCT 28TH 2012

Nancy's opinion is her own, not that of Sunshine State News.

Also, an editorial column is not a news article. Editorials make no pretense of being "balanced."
7:44AM OCT 21ST 2012
right center is a stretch, more like hard right. you can push all you like but the justices will be retained. no one wants rick scott appointing 3 justices.
Harry L Guzaliak
8:53AM OCT 21ST 2012
the justices should interpret the law not openly oppose it We would like nothing more than Gov. Scott apoint 3 new ones
4:51PM OCT 21ST 2012
we meaning less than 40% of the population or we meaning scott's corporate sponsors ?

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