One of the central features of Maine’s workers’ compensation statute is its tort immunity or “exclusive remedy” provision.  This provision represents a trade-off: In exchange for compensating work injuries regardless of employee fault, employers are exempt from civil suits involving injury or death arising out of and in the course of employment – and the high defense costs, high damage awards, and pain and suffering damages such suits can entail.  This “grand bargain” has been a defining feature of Maine’s workers’ compensation system since its inception nearly 100 years ago.

However, in other jurisdictions with similar provisions, this most basic feature of workers’ compensation law is now under fire.  On August 13, 2014, Judge Jorge W. Cueto of the 11th Judicial Circuit of Florida, in Miami-Dade County, ruled Florida’s exclusive remedy statute unconstitutional.  In Florida Workers’ Advocates v. State of Florida, Judge Cueto found workers’ compensation reforms have “decimated” Florida workers’ compensation benefits.  Judge Cueto cites various amendments to the Florida Workers’ Compensation Act since 1968, including a 2003 amendment which eliminated permanent partial disability benefits.  Judge Cueto wrote, “I find that the Florida Workers’ Compensation Act, as amended October 1, 2003, does not provide a reasonable alternative remedy to the tort remedy it supplanted.  It therefore cannot be the exclusive remedy.  §440.11 is constitutionally infirm and invalid.”

The case is currently on appeal before the Florida Third District Court of Appeal, and could eventually make its way to the Florida Supreme Court.

The Florida Workers’ Advocates case is not the only assault on an exclusive remedy provision in recent years.  In Walston v. The Boeing Co., the employee argued the “deliberate intention” exception to Washington State’s immunity statute – allowing civil suits against employers who deliberately injure employees – should apply where employers expose employees to substances (e.g., asbestos) which put employees at risk for disease.  The Washington court upheld the integrity of its immunity statute, holding exposure to mere risk of disease is insufficient to meet the “deliberate intention” exception.

Unlike the Washington statute, however, the fate of Florida’s exclusive remedy provision remains uncertain.  If Florida’s statute is ultimately held unconstitutional, it may add momentum to a fledgling trend of challenges to exclusive remedy provisions around the country.  While Maine’s Act differs from Florida’s (Maine still has permanent partial disability benefits, for example), this case bears watching.  We will monitor the situation closely and advise you of any major developments.