A Fairy Tale




Once upon a time, (1970 to be exact), the United States Congress passed the "Occupational Safety and Health Act of 1970". It was given the acronym "OSHA" to make it easier to describe in polite conversation. OSHA was a very, very good law. The OSHA said:


"...the vast majority of American workers, and their families, are dependant on workmen's (sic worker's) compensation for their basic economic security in the event such worker suffers disabling injury in the course of their employment; and that the full protection of American workers from job-related injury or death requires an adequate, prompt, and equitable system of workmen's compensation as well as an effective program of occupational health and safety regulation..."


The Congress remarked, almost 30 years ago:


"In recent years serious questions have been raised concerning the fairness and adequacy of present workmen's compensation laws in light of the growth of the economy, the changing nature of the labor force, increases in medical knowledge, changes in the hazards associated with various types of employment, new technology creating new risks to health and safety, and increases in the general level of wages and the cost of living."


So, for these reasons, Congress established the National Commission on State Workmen's Compensation Laws to "undertake a comprehensive study and evaluation of State workmen's compensation laws in order to determine if such laws provide an adequate, prompt and equitable system of compensation." July 31, 1972 was the date selected by Congress for the transmittal of the report of the Commission to the President and Congress. The Commission was large and unruly and no one, not the OSHA nor the Congress expected the Commission to finish on time. Government seems to work that way. But to everyone’s surprise, the report was done exactly on time.


Who did the American worker have to thank for this marvelous report? Some familiar names pop up: John F. Burton Jr., the Commission Chairman; John H. Lewis, Esq., the Associate Executive Director and Chief Counsel; and The NCCI was a major player as well.


The 1972 Commission concluded: "...State workmen's compensation laws are, in general neither adequate nor equitable... Perhaps in another decade or two, an attractive alternative to workmen's compensation will emerge... For the foreseeable future we are convinced that, if our recommendations for a modern workmen's compensation program are adopted, the program should be retained."


"But why," you ask, "had this problem gone unsolved until now (1970)?"

"We know why," said The Commission.


There are numerous reasons: 1. Lack of interest by State legislatures and the general public; 2. Lack of understanding by State legislatures and the general public; 3. In-fighting among special interest groups; 4. The complexity of the problem; 5. The irrational fear that the increases in premiums would drive employers away, to States with less generous benefits and lower costs. This last one was called "The Main Barrier."


The Congress, The OSHA and The Commission knew they had to conquer The Main Barrier before the problem could be solved. Could they ever find the solution? Yes!

After considering An Immediate Complete Federal Takeover, after considering Voluntary Guidelines followed by a Complete Federal Takeover in a few years if deficiencies are not corrected promptly, The Commission decided that The Main Barrier could be overcome if The States were required to meet certain minimum standards for the essential requirements of a State Workmen's compensation law no later than July 1, 1975.


What, you ask, are "The Essential Elements"?


The Essential Elements of a State workmen's compensation law are:

a. Compulsory Coverage;

b. No Occupational or Numerical Exemptions to Coverage;

c. Full Coverage of Work Related Diseases;

d. Full Medical and Physical Rehabilitation Services without Arbitrary Limits;

e. Employee's Choice of Jurisdiction for Filing Interstate Claims;

f. Adequate Weekly Cash Payments for TTD, PTD, and Death Cases; and,

g. No Arbitrary Limits on Duration or Sum of Benefits.


Unanimity, at last! Believe it! The Commission voted unanimously that Congressional intervention may be needed to bring about reforms in the State systems. The threat of, or if necessary, the enactment of Federal mandates will remove from each State The Main Barrier to effective workmen's compensation reform: the terrible, irrational fear that compensation costs may drive employers to move away to markets where protection for disabled workers is inadequate but less expensive. The Commission must have anticipated NAFTA. The Commission, on a majority vote, gave The States until 1975 to get their Worker's Compensation laws up to snuff, or else!


Fast Forward to 1999. The next to last year of the 20th Century. Contrary to popular belief, the 21st Century begins on January 1st, 2001 not January 1, 2000! Here we are in the Sunshine State, Florida, a right to work state. Disorganized labor represents the workingman. The question presented:

Does Florida have The Essential Elements in it's workers' compensation law? Let's look and see:

(a) Compulsory Coverage - No. Not for professional athletes or for owners of businesses that can elect to be "uncovered".

(b) No Occupational or Numerical exemptions - No again! Domestics aren't covered and coverage is not required if an employer has less than 4 employees.

(c) Full Coverage of Work Related Diseases - No. No. No! There is no coverage for mental/mental diseases and no coverage for internal failures unless caused by unusual stress or overexertion not common to the work being performed.

(d) Full Medical and Physical Rehabilitation - Nope. After maximum medical improvement a $10.00 co- payment is now required.

(e) Employees given choice of jurisdiction for interstate claims. Yes.

(f) Adequate weekly cash payments for TTD/PTD/Death - Not even close. 200% of the statewide average weekly wage was supposed to be the maximum benefit as of 1975.

(g) No arbitrary limits on the sum or duration of benefits - No way. A maximum of 104 weeks of TTD/TPD! $100,000.00 in death benefits maximum and don't forget "The Grice".


Out of seven Essential Elements suggested for a State worker's compensation system in 1973, Florida only has 1 in 1999. That element allows an injured worker to file his claim elsewhere if he or she can prove another state also has jurisdiction.

In addition to The Essential Elements, specific provisions were bandied about, called "The Federal Minimum Standards". These standards were contained in another good law proposed by Senator Jacob Javits, (D-N.Y.). His S.B. 2008 was popularly referred to as "The Williams-Javits Bill," although its technical name is "The National Workers' Compensation Standards Act of 1973". Here are some examples of provisions contained in S.B. 2008. To improve comprehension, I have paraphrased some of the legislative language which has a tendency to be a bit confusing, even for big people.


1 - The States would have been required to raise the statewide maximum compensation rate to 200% of the statewide average weekly wage by January 1, 1978.

Florida - 1999 - still using 100% of the statewide average weekly wage as the maximum since 1979. The 1999 statewide maximum is $522.00 per week. Federal Legislation would have made it $1,044.00 per week.


2 - Williams-Javits mandated that an injury suffered on the job would be deemed to have arisen out of the employment if work related factors were a contributing cause of the injury.

Florida - 1999 - basic presumptions that a claim comes within the provisions of the act contained in 440.26 Fla. Stat. in 1973 were repealed. The new definition of arising out of the employment effective 1/1/94 - work being performed in the course and scope of the employment must be the major contributing cause of the injury or death.


3 - Permanent Partial Disability or Permanent Total Disability standards must be the same as Federal law for the same classification of benefit.

Florida - 1999 - PPD is based on the Florida guides paid at 3 weeks for each percentage of permanent impairment but the payment is half the compensation rate and PTD is based on catastrophic injury or the standard for social security disability or supplemental security income if the condition giving rise to the Federal benefit is the same as the compensible state injury.


4 - Minimum compensation for PTD is 50% of the statewide average weekly wage or 50% of the AWW (whichever is less). For death, it is 50% of the state average weekly wage.

Florida - 1999 - minimum compensation for PTD is zero dollars per week (see "Grice"). Minimum compensation for death is discretionary up to the Judge of Compensation Claims but no more than 66 and 2/3rds percent of the deceased's average weekly wage at the time of his injury and subject to the maximum of 100% of the statewide average weekly wage.


5 - If injury causes death or permanent total disability and the recipient dies the Williams-Javits Bill required the widow to get death benefits for life or until remarriage with a minimum of 2 years of benefits paid after remarriage. Dependent children would get benefits to age 18 or age 23 if a full time student or for life if physically or mentally unable to support themselves.

Florida - 1999 - widow and children get a maximum of $100,000.00. Up to 26 weeks of benefits paid after remarriage. A child unable to support himself is still subject to the $100,000.00 family maximum.


6 - Federal Law would have required a 3 day maximum waiting period for benefits and a 14 day maximum to qualify for retroactive benefits to day one.

Florida - 1999 - waiting period is 7 days and 21 days to qualify for retroactive benefits.


7 - Federal minimum standards would require a second injury fund similar to the one set up under the Longshore and Harbor Worker's Compensation Act.

Florida - 1999 - second injury fund in the process of being closed down, dismantled and possibly privatized.


8 - S.B. 2008 required periodic increases in disability and death benefits to reflect increases in the statewide average weekly wage which increases are applicable to benefits already being paid prior to the enactment of the Federal Law.

Florida - 1999 - there are periodic increases in PTD only and then subject to a maximum of 100% of the statewide average weekly wage and offsetable. Here comes "The Grice", with his cronies in crime, "The Barragan", and "The Acker". This gang is notorious for taking away benefits from injured workers.


9 - Under the proposed Federal Legislation the right to make an initial selection of physicians from those licensed and approved by the State agency was granted every injured worker.

Florida - 1999 - in theory, an injured worker in a managed care program has initial selection of his primary care physician from a list created solely by the employer/ carrier/managed care organization.


10 - The Williams-Javits Bill allowed 3 years after the date an injured worker knew or should have known of the existence of his disability and the possible relationship to his employment to file a claim for benefits.

Florida - 1999 - statute of limitations 2 years from date of accident or 2 years from last payment of indemnity and as little as 1 year from last provision of medical care.


11 - Under Federal proposed minimum standards every injured worker would be entitled to recoup his attorney's fees and have them added to any award of benefits if it was necessary to obtain those benefits through formal adjudication.

Florida - 1999 - regardless of the amount of formal adjudicatory procedures, if a claim results in a lump sum settlement the injured worker must pay 100% of any attorney's fees.


12 - Each state would have been required to provide legal assistance to injured workers.

Florida - 1999 - the state provides no legal assistance to injured workers.


13 - Williams-Javits prohibited use of any periodic adjustment to worker's compensation being considered in determining eligibility for any other state or federal benefit.

Florida - 1999 - "The Grice, Acker, Barragan" gang strikes again.


14 - The proposed Federal law had as one of its priorities the encouragement of safe workplaces.

Florida - 1999 - the Florida Division of Safety is basically powerless.


The moral of the story: If you wish to live and work in the past, then come live in Florida because it's just like 1970 here, or worse.