A pro-business court victimizes workers again | Editorial

It seemed like a good deal long ago when workers gave up their right to sue employers in exchange for a no-fault insurance system for injuries and deaths on the job.

Judges who favored business interests had used one excuse after another to make access to the courts a dead end for destitute workers, widows and orphans.

Under new workers’ compensation laws, it would no longer matter whether the victims had known the risks when they were hired, had been careless themselves or that fellow employees were to blame. Employers had to buy insurance, and anyone hurt on the job would generally be cared for unless they had been so grossly negligent as to be drunk or on drugs.

A devil’s bargain

But that tradeoff can be a devil’s bargain in the hands of the Florida Legislature and the First District Court of Appeal (DCA).

A panel of the Tallahassee-based First DCA has ruled 2-1 to deny benefits to Mohammed Bouayad, who was shot seven times while working as general manager of a Value Car Rental agency at Orlando International Airport.

The two-judge majority said he “did not meet his burden” to prove that his employment had anything to do with his injury. They surmised that he was shot by an acquaintance who threatened his wife and son. Bouayad himself initially thought so.

But police never charged that other person. Witnesses who saw the shooting on a surveillance tape, including the wife and son, said he was not the shooter.

To second-guess the police, Normandy Insurance Co., Value Care’s workers comp carrier, produced criminologists who opined that Bouayad was a victim, as the court put it, of “targeted, premeditated violence,” rather than a random attack.

So what? That was a matter of opinion, not fact. A judge of compensation claims held a different opinion and awarded medical and other benefits to Bouayad. Value Care and its carrier appealed.

Damaging consequences

The outcome does serious and irrational damage not just to Bouayad but to other potential victims and to the entire concept of workers’ compensation as no-fault coverage. Nothing is supposed to matter but where the injury occurred, not why.

The dissenting judge, Susan L. Kelsey, wrote a blistering 15-page dissent that warned of drastic consequences.

The majority’s reasoning, she said, would deny benefits to “a teacher injured or killed in a senseless school shooting,” a restaurant worker “assigned to close for the night (who) is robbed and assaulted by an unidentifiable thief…or, as here, a car-rental agency manager carrying the day’s paperwork to the back office near midnight by virtue of his inability to prove that the unknown assailant’s motive was work-related.”

Kelsey said judges Lori Rowe and Thomas Winokur disregarded Florida Supreme Court precedent, which appeals courts aren’t supposed to do. Kelsey was right. Rowe and Winokur acknowledged as much by certifying a question to the Supreme Court.

A legal loaded question

But they loaded the question, asking whether the precedent still applies when “an act of a third-party tortfeasor” is the “sole cause” of an employee’s injury.  For the Supreme Court to say no would confirm Kelsey’s fears.

That the DCA majority kicked such a question upstairs suggests they had qualms about how they ruled. They should.

As Kelsey pointed out, the Legislature expressly intended to provide “quick, efficient, and self-executing delivery of disability and medical benefits outside the civil tort system.

The Legislature, she added, “may wish to consider overruling” the precedent that Rowe and Winokur were setting. “Far from quick and efficient,” she wrote, Bouayad is still waiting for benefits four years and two months after he was shot.

In recent years, the First DCA denied benefits to an Alachua County jail deputy who suffered a heart attack because he hadn’t taken a second employment physical after being promoted from part-time to full-time work. His supervisors had not required a second examination.

A miscarriage of justice

It also denied benefits in the cases of two workers, one dead, the other living, who had contracted a rare meningitis known to be caused by fungi they likely contracted on the job. The survivor, Robert Taylor, had cleared property for the city of Titusville. The dead man, Edward Cruce, was a groundskeeper for the Indian River County School Board. He came home from work one day covered with dust from bird droppings, a known medium for the fungi.

But the likely contaminated sites had long been cleaned up when the workers fell ill and the court held that they could not prove they contracted the fungi at work.

The Legislature shared blame for that miscarriage of justice. Manipulated, as usual, by insurance and business lobbyists, it had provided that an injury or disease caused by exposure to a toxic substance, such as fungus or mold, is not an injury by accident unless clear and convincing evidence establishes that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease.

Common sense should have been sufficient, but Florida’s First DCA is where common sense goes to die.

The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, editorial writer Martin Dyckman and Editor-in-Chief Julie Anderson. Editorials are the opinion of the Board and written by one of its members or a designee. To contact us, email at letters@sun-sentinel.com.