|
Legislature May “Awaken the Kracken” in Florida W/C
by James W. Greer, CPCU
Below the thunders of the upper deep,
Far, far beneath in the abysmal sea,
His ancient, dreamless, uninvaded sleep
The Kraken sleepeth: faintest sunlights flee...
Whether you’re reading Lord Alfred Tennyson’s literary masterpiece, “The Kraken”, or watching Johnny Depp as Capt. Jack Sparrow fight the giant sea monster in “Pirates of the Caribbean, you know the danger of the Kraken.
Over the years, many of the benefits to which an injured worker is entitled under Florida’s workers’ compensation law have been reduced or restricted in order to satisfy carrier profitability objectives and keep insurance both available and affordable to Florida employers. In other areas, e.g. police and firefighter claims, presumptions have been created that greatly increase an employer’s burden for responding to medical conditions that are just as likely to be personal as job-related. Certainly, a trade-off often occurs between the various special interests who initiate these changes in order to maintain some element of balance in the exclusive remedy of workers ’ compensation, but when do these special interests go too far?
Last month, two bills were proposed that would, I submit, do just that. Not only do both of these bills suggest a substantial break with traditional work comp legal doctrines – doctrines that support that delicate balance of personal and financial security for both employer and employee, they would also open a Pandora’s Box of uncertainty and adversity for Florida workers’ compensation system. Given the crisis in property insurance and the possibility of sunset for Florida’s No Fault/PIP law, it is doubtful that the legislature will entertain workers compensation at all. Unfortunately, these or similar initiatives are likely to show up repeatedly until addressed, so it makes sense to take a closer look at what has been suggested...
NCCI Analysis Predicts Increased System Costs and Litigation
In February, the NCCI published its analysis of the two bills, House Bill (HB) 301 – Presumption of Compensability for Cancer and House Bill (HB) 607 – Defining Deviation from Employment. Its analysis indicated that while HB607 might promote a slight decrease in overall system costs, and HB301 would clearly increase overall system costs, both would increase the uncertainty and adversity of the workers’ compensation benefit structure and promote an increase in litigation. Let’s take a closer, though, at both bills, and how they serve to undermine the overall purpose and balance of the workers’ compensation benefit system.
Legal Doctrines Promote Balance and Fairness
Workers’ compensation, as a benefit system, is nearly 100 years old, and the basic tenets of intent, application and fairness have been changed, tested and tried in many jurisdictions and courtrooms across Florida and the nation, ultimately giving rise to established legal doctrines such as Deviation from Employment and Presumptions of Compensability. Proper interpretation and application of these doctrines ensures consistency and fairness across the W/C system for both employer and employee.
HB 301 would open the floodgates cancer claims by firefighters regardless of type and cause, and overcoming such a legal presumption of compensability would be practically impossible for employers, thus increasing indemnity, medical and litigation costs for employers. While HB 607 would seek to limit application of the Deviation doctrine, it would also “awaken the Kraken”, subjecting unwary employers to the angry tentacles of such peripheral doctrines of Premises, Personal Comfort, Traveling Employees and Dual Capacity.
By violating underlying doctrinal law, we upset the delicate balance of interests between employer and employee. These bills are bad news for Workers’ Compensation in general. Let us hope the legislature, whenever it decides to address these issues, recognizes this fact.
To read copies of the Bill text and NCCI’s Analsis, click here:
James W. Greer, CPCU
President, AE21 Incorporated
Education & Professional Development Services
(800) 820-4550
|
