Stahl Amicus of FLANELA FILED

No. 16-98
================================================================
In The
Supreme Court of the United States
------------------------------------------------------------------
DANIEL STAHL,
Petitioner,
v.
HIALEAH HOSPITAL AND
SEDGWICK CLAIMS MANAGEMENT,
Respondents.
------------------------------------------------------------------
On Petition For Writ Of Certiorari
To The District Court Of Appeal,
First District, State Of Florida
------------------------------------------------------------------
BRIEF OF AMICUS CURIAE FLORIDA CHAPTER
OF NATIONAL EMPLOYMENT LAWYERS
ASSOCIATION IN SUPPORT OF PETITIONER
------------------------------------------------------------------
RICHARD E. JOHNSON, ESQUIRE
Counsel of Record
LAW OFFICE OF
RICHARD E. JOHNSON
314 W. Jefferson St.
Tallahassee, FL 32301
Phone: (850) 425-1997
richard@nettally.com
LOUIS P. PFEFFER, ESQUIRE
LOUIS P. PFEFFER, P.A.
250 S. Central Blvd., Ste. 205
Jupiter, FL 33458
Phone: (561) 745-8011
lpfeffer@pfefferlaw.com
Counsel for Amicus Curiae
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM

i
TABLE OF CONTENTS
Page
INTEREST OF AMICUS CURIAE........................ 1
SUMMARY OF THE ARGUMENT ....................... 2
ARGUMENT........................................................... 4
I. THIS COURT SHOULD GRANT THE PE-
TITION AND HOLD THAT FLORIDA’S
WORKERS’ COMPENSATION LAW WHICH
ELIMINATES BENEFITS FOR PERMA-
NENT PARTIAL LOSS OF EARNING
POWER AND WHICH DOES NOT PRO-
VIDE FULL MEDICAL CARE, FAILS THE
DUE PROCESS TEST OF ADEQUACY..... 4
A. The 1972 National Commission On
State Workmen’s Compensation Laws
Attempted To Ensure Fair And Ade-
quate Compensation Laws And End
The States’ Race To The Bottom ........... 7
B. Florida’s Lead In The Race To The Bot-
tom Has Destroyed Its Compensation
Scheme Which No Longer Provides Cer-
tain Definite And Easily Ascertained
Benefits.................................................. 13

ii
TABLE OF CONTENTS – Continued
Page
C. Florida’s Lead In The Race To The Bot-
tom Has Resulted In Arbitrary And Pat-
ently Inadequate Benefits With The
Loss Of Any Benefits For Permanent
Loss Of Earning Capacity And Elimina-
tion Of Full Medical Care ..................... 20
CONCLUSION ....................................................... 25

iii
TABLE OF AUTHORITIES
Page
CASES
Alexander v. Peoples Ice Co., 85 So. 2d 846 (Fla.
1955) ........................................................................15
Altman Contractors v. Gibson, 63 So. 3d 802
(Fla. 1st DCA 2011).................................................16
Branham v. TMG Staffing Services, 994 So. 2d
1172 (Fla. 1st DCA 2008)........................................16
Crawford v. Benrus Market, 40 So. 2d 889 (Fla.
1949) ........................................................................14
Evans v. Florida Industrial Com., 196 So. 2d 748
(Fla. 1967)..........................................................15, 17
Farnam v. U.S. Sugar, 9 So. 3d 41 (Fla. 1st DCA
2009) ........................................................................17
Florida Erection Services v. McDonald, 395
So. 2d 203 (Fla. 1st DCA 1981).........................13, 17
Frankel v. Loxahatchee Club, Inc., 179 So. 3d 384
(Fla. 1st DCA 2015).................................................18
Gallagher Bassett Services v. Mathis, 990 So. 2d
1214 (Fla. 1st DCA 2008)........................................17
Gillespie v. Anderson, 123 So. 2d 458 (Fla. 1960).........15
Johnson v. Koffee Kettle Restaurant, 125 So. 2d
207 (Fla. 1960).........................................................14
Kluger v. White, 281 So. 2d 1 (Fla. 1973)....................15
Mountain Timber Co. v. Washington, 243 U.S.
219, 37 S. Ct. 260, 61 L. Ed. 685 (1917)....................6

iv
TABLE OF AUTHORITIES – Continued
Page
New York Central Railroad Company v. White,
243 U.S. 188, 37 S. Ct. 247, 61 L. Ed. 667
(1917)...............................................................passim
New York C. R. Co. v. Bianc, 250 U.S. 596, 40
S. Ct. 44, 63 L. Ed. 1161 (1919) ..............................21
Regency Inn v. Johnson, 422 So. 2d 870 (Fla. 1st
DCA 1982) .........................................................16, 22
S & A Plumbing v. Kimes, 756 So. 2d 1037 (Fla.
1st DCA 2000) .........................................................18
Westphal v. City of St. Petersburg, 2016 Fla.
LEXIS 1197 (Fla. June 9, 2016)..............................25
CONSTITUTIONAL PROVISIONS
Fourteenth Amendment, U.S. Constitution .................4
STATUTES
Chapter 88-201, Laws of Florida................................11
Comprehensive Economic Development Act of
1990 .........................................................................12
Fla. Stat. § 440.015 (2003)............................................2
Fla. Stat. § 440.02(11) and (19) (1993).......................21
Fla. Stat. § 440.02(32).................................................17
Fla. Stat. § 440.09(1)...................................................16

v
Page
Fla. Stat. § 440.09(1)(a)(b) (2003) ..............................17
Fla. Stat. § 440.09(1)(a)(b) (2015) ..............................17
Fla. Stat. § 440.09(1)(b) (1994)...................................17
Fla. Stat. § 440.093(2) (2015) .....................................16
Fla. Stat. § 440.13(2)(f ) ..............................................19
Fla. Stat. § 440.13(3)...................................................18
Fla. Stat. § 440.13(4)(c)...............................................18
Fla. Stat. § 440.13(5)...................................................19
Fla. Stat. § 440.13(14)(c).......................................25, 26
Fla. Stat. § 440.15(3)(u) (1978)...................................21
Fla. Stat. § 440.15(3) (2003) .......................................26
Fla. Stat. § 440.15(3)(a)-(t) (1978)..............................21
Fla. Stat. § 440.15(3)(a)(b) (1979) ..............................22
Fla. Stat. § 440.15(3)(a)(b) (1990) ..............................22
Fla. Stat. § 440.15(3)(a)(3)..........................................23
Fla. Stat. § 440.15(3)(b) ..............................................23
Fla. Stat. § 440.15(3)(b)(4)(d) .....................................22
Fla. Stat. § 440.15(3)(c)...............................................23
Fla. Stat. § 440.15(3)(g) ..............................................23
Fla. Stat. § 440.15(3)(u)..............................................22
Fla. Stat. § 440.15(5)(b)(2)..........................................18
Fla. Stat. § 440.26 (1979)............................................14

vi
Page
The Occupational Safety and Health Act of 1970
SEC. 27(a)(1)(A) and (B) ...........................................8
SEC. 27(a)(2) .............................................................8
RULES AND REGULATIONS
Sup. Ct. R. 37.6 .............................................................1
OTHER AUTHORITIES
Florida Senate Staff Analysis and Economic
Impact Statement, Bill: SC-12C, November 1,
1993 ...................................................................11, 12
National Commission on State Workmen’s Com-
pensation Laws, The Report of the National
Commission on State Workers’ Compensation
Laws (1972) ...................................................9, 10, 18
Should there be a 21st Century National Com-
mission on State Workers’ Compensation
Laws? John F. Burton, Jr., American Bar As-
sociation, Workers’ Compensation Sections
Midwinter Seminar and Conference, March
16, 2013 ...................................................................11
The 1996 Florida Uniform Permanent Impair-
ment Rating Schedule.............................................24
The National Commission on State Workers’
Compensation Law: Some Reflections by the
Former Chairman, John F. Burton, Jr., 40
IAIABC JOURNAL 15 (Fall 2003) .........................10

1
INTEREST OF AMICUS CURIAE1
The National Employment Lawyers Association
(“NELA”) is the largest professional membership
organization in the country comprised of lawyers who
represent workers in labor, employment and civil
rights disputes. NELA advances employee rights and
serves lawyers who advocate for equality and justice in
the American workplace. NELA and its 67 state and
local affiliates have a membership of over 3,000 attor-
neys who are committed to working on behalf of those
who have been illegally treated in the workplace.
The Florida Chapter of NELA (“FLANELA”) was
founded in 1993 and has approximately 200 participat-
ing attorneys around the state. FLANELA has filed
amicus briefs in this Court, the United States Court of
Appeals for the Eleventh Circuit, the Florida Supreme
Court, and Florida’s District Courts of Appeal.
FLANELA has an interest in this case because
it raises questions of national importance concerning
a State’s ability under the Due Process clause of
the Fourteenth Amendment to strip away an injured
worker’s right to sue his employer for damages without
1
Pursuant to Sup. Ct. R. 37.6, amicus curiae and its counsel
state that this brief was authored by amicus and its counsel listed
on the front cover, that none of the parties to this case nor their
counsel authored this brief in whole or in part, and that no person
or entity made a monetary contribution specifically for the prep-
aration or submission of this brief. Amicus curiae files this brief
with the written consent of all parties, copies of which are on file
in the Clerk’s Office. All parties received timely notice of amicus
curiae’s intention to file this brief.

2
providing the worker with an adequate and reasonable
compensation remedy. Although New York Central
Railroad Company v. White, 243 U.S. 188, 201, 202, 37
S. Ct. 247, 61 L. Ed. 667 (1917) approved the compen-
sation bargain as a valid exercise of a State’s police
powers, this Court expressly left open challenges to a
compensation scheme that provides arbitrary or un-
reasonable benefits.
This brief does not attempt to re-state Petitioner’s
arguments but instead hopes it can aid the Court by
providing an in-depth analysis of factors never consid-
ered by this Court, including the ongoing interstate
war between State legislatures to reduce compen-
sation benefits and attract business, which have un-
constitutionally altered compensation as an injured
workers’ exclusive remedy in Florida. The issues in
this case directly impact the lives of millions of Florida
workers and indirectly injured workers across Amer-
ica.
FLANELA has no financial interest in the out-
come of this case. Reversing the decision of the Florida
First District Court of Appeals upholding the constitu-
tionality of Fla. Stat. § 440.15(3) (2003) is a matter of
substantial concern to amicus curiae and its clients.
------------------------------------------------------------------
SUMMARY OF THE ARGUMENT
This Court long ago in New York Central Railroad
Company v. White, 243 U.S. 188, 201, 202, 37 S. Ct. 247,
61 L. Ed. 667 (1917) upheld State power under the

3
Fourteenth Amendment to implement workers’ com-
pensation laws as a reasonable substitute for an
injured worker’s tort remedies. This “compensation
bargain” benefitted both employees and employers:
employees would benefit by recovering speedy, certain
yet modest compensation with full medical care and
benefits for loss of earning power without the delay
and difficulty of proving fault; employers would benefit
with immunity from suit and limited liability.
But since this Court decided White, that bargain
has shifted towards employers’ no longer providing
speedy, certain and modest compensation, yet with
employers still enjoying immunity from suit for dam-
ages. Finding serious questions of the “fairness and ad-
equacy” of workmen’s compensation laws, Congress in
1970 appointed a National Commission to study and
make recommendations for minimum standards on
compensation laws. This Commission found that inad-
equate workers’ comp laws were the result of States
competing with one another to cut workers’ benefits,
reduce costs, in order to retain and/or attract new busi-
ness and industry. The Commission formulated recom-
mendations for the improvement of compensation laws
and envisioned that, if the States did not voluntarily
comply, Congress would step in and impose Federal
mandates. Such Federal mandates never emerged.
Though proposed by Congress, such legislation was
never enacted.
With the threat of Federal mandates all but dead,
State legislatures including Florida have had free rein
to continue their race to the bottom cutting benefits in

4
an ongoing effort to attract business to their states.
Florida is leading the race. Through a series of “re-
forms” to the compensation scheme, Florida has funda-
mentally replaced its remedial compensation scheme
with a tort-like justice system where compensation is
no longer speedy, certain nor adequate and, the once
feared delay and difficulty of proving liability and
damages has been replaced with the delays and diffi-
culty in proving causation. The nightmare for injured
workers with disabling permanent injuries continues
when such workers discover that Florida’s compensa-
tion scheme no longer provides any benefits for perma-
nent loss of wage earning capacity nor full medical care
but instead provides insignificant, inadequate and il-
lusory benefits based upon an arbitrary impairment
rating and required medical co-pays.
------------------------------------------------------------------
ARGUMENT
I. THIS COURT SHOULD GRANT THE PE-
TITION AND HOLD THAT FLORIDA’S
WORKERS’ COMPENSATION LAW WHICH
ELIMINATES BENEFITS FOR PERMANENT
PARTIAL LOSS OF EARNING POWER AND
WHICH DOES NOT PROVIDE FULL MEDI-
CAL CARE, FAILS THE DUE PROCESS
TEST OF ADEQUACY
Almost 100 years ago, this Court upheld a State’s
use of its police powers under the Fourteenth Amend-
ment to enact workers’ compensation laws as a “rea-
sonably just substitute” for injured workers’ tort

5
remedies as a “just settlement of a difficult problem,
affecting one of the most important of social rela-
tions. . . .” New York Central Railroad Company v.
White, 243 U.S. 188, 201, 202, 37 S. Ct. 247, 61 L. Ed.
667 (1917). This ruling was based upon several prem-
ises.
First, States are free to alter their laws regarding
the rights and liabilities of employers and employees
in accident cases; no person has a vested interest in
any rule of law remaining unchanged. White, 243 U.S.
at 198.
Second, States have a legitimate interest in “the
protection of the lives and safety” as well as injured
workers’ “continued life and earning power” and the
corresponding “prevention of pauperism, with its con-
comitants of vice and crime.” White, 243 U.S. at 207.
Third, the New York compensation scheme pro-
vided “a reasonably just substitute” . . . “something ad-
equate” to replace the harsh common law: injured
workers, faced with the delay and difficulty of proving
fault and damages in the common law world of contrib-
utory negligence, assumption of risk and the fellow
servant rule, would be provided “a certain and speedy”
remedy of “moderate and definite compensation” for
“loss of earning power” as well as the economic loss for
needed medical treatment; in exchange, employers
would enjoy immunity from suit for damages and lim-
ited liability for a “reasonable amount.” White, 243 U.S.
at 201, 204-205.

6
Fourth, the proposed compensation scheme was
neither arbitrary nor unreasonable from a natural jus-
tice standpoint as both employer and employee were
in a “common enterprise”; an injured worker’s “loss of
earning capacity” or his/her loss of “capital in trade”
would be charged as an expense of the operation of the
business similar to an employer’s cost of “repairing
broken machinery or any other expense ordinarily paid
by the business” – costs which would be passed on to
the consumer. White, 243 U.S. at 203.
Although States may enact compulsory compensa-
tion laws under the Fourteenth Amendment, “this is
not to say that. . . . “any scale of compensation, how-
ever insignificant on the one hand or onerous on the
other, would be supportable.” In White, no issue of the
“scheme of compensation” being arbitrary or unreason-
able was presented; as a “certain and speedy remedy,”
compensation “based solely on loss of earning power,
being graduated according to the average weekly
wages of the injured employee and the character and
duration of the disability whether partial or total, tem-
porary or permanent,” was to be provided. White, 243
U.S. at 193, 202.
“Any question of ” a compensation scheme being
“unreasonable in amount, either in general or in the
particular case” . . . “may be met when it arises.” White,
243 U.S. at 205, 206; Mountain Timber Co. v. Washing-
ton, 243 U.S. 219, 37 S. Ct. 260, 61 L. Ed. 685 (1917).
That time has now arrived. Florida’s compensa-
tion scheme no longer provides workers suffering from
disabling injuries any benefits for partial loss of

7
permanent earning capacity, while simultaneously im-
posing on such workers the partial cost of their future
medical care. Equally disturbing, injured workers in
Florida no longer enjoy the “certain and speedy rem-
edy” of compensation promised by this Court in White.
Petitioner Stahl and millions of other injured workers
in and outside of Florida are exploited by what has
come to be known as the States’ “race to the bottom”:
Due to the multi-state structure of compensation laws,
States vie with one another to cut workers’ benefits,
reduce costs, to attract new business and industry.
Florida has proven to be more than an able competitor
in this race. By eliminating adequate benefits for work-
ers with permanent injuries, extinguishing full medi-
cal care and dismantling the compensation scheme as
a remedial system, Florida is leading the race.
This Court is uniquely positioned to decide this is-
sue which directly impacts the lives of millions of Flor-
ida workers and their families and indirectly affects
millions of injured workers and their families across
America.
A. The 1972 National Commission On State
Workmen’s Compensation Laws Attempted
To Ensure Fair And Adequate Compensa-
tion Laws And End The States’ Race To
The Bottom
Over forty-five years ago, Congress recognized
that “the vast majority of American workers, and their
families, are dependent on workmen’s compensation
for their basic economic security in the event such
workers suffer disabling injury or death in the course

8
of their employment” and that “the full protection of
American workers from job-related injury or death re-
quires an adequate, prompt, and equitable system of
workmen’s compensation. . . .” “Occupational Safety
and Health Act of 1970,” SEC. 27(a)(1)(A) and (B).
Finding “serious questions” of the “fairness and ade-
quacy” of present workmen’s compensation laws, Con-
gress established the National Commission on State
Workmen’s Compensation Laws to undertake a com-
prehensive study to determine if such laws provided an
“adequate, prompt, and equitable system” of compen-
sation. Id., SEC. 27(a)(2).
A fifteen-member Commission, appointed by Pres-
ident Nixon under the Occupational Safety and Health
Act of 1970, identified five major objectives for a mod-
ern workmen’s compensation program:
(1) Broad coverage of employees and of
work-related injuries and diseases;
(2) Substantial protection against interrup-
tion of income;
(3) Provision of sufficient medical care and
rehabilitation services;
(4) Encouragement of safety; with all objec-
tives dependent on,
(5) An effective system for delivery of the
benefits and services.
After 13 months of study including public hear-
ings, the Commission submitted its report in July 1972
finding that “the protection furnished by workmen’s

9
compensation to American workers presently is, in
general, inadequate and inequitable” further deter-
mining that significant improvements in workmen’s
compensation are necessary. National Commission on
State Workmen’s Compensation Laws, the Report of
the National Commission on State Workers’ Compen-
sation Laws, p. 18, 24-25, 119 (1972).
Inadequate and inequitable compensation laws
were found to be the product of three factors: State leg-
islators’ lack of interest and/or understanding due to
the complexity of compensation; the veto power of in-
terest groups including employers, insurance compa-
nies, unions and attorneys; and, most prominently,
interstate competition with States competing with one
another to cut workers’ benefits, reduce costs, and
thereby try to retain and/or attract new business and
industry. Report at 124. This “race to the bottom” is a
by-product of the “forces of efficiency and mobility” en-
couraged by the U.S. economic system; employers tend
to locate where the environment offers the best pro-
spect for profit. Report at 25, 124-125.
The Commission formulated 84 recommendations
– with 19 of these recommendations deemed essential
– for the improvement of State workmen’s compensa-
tion laws. Report at 26, 126-127. These recommenda-
tions did not have the force of law but were guidelines
for the States to voluntarily reform their compensation
laws. A majority of the Commission members con-
cluded that States should be given until July 1, 1975,
to remodel their laws and comply with the essential
recommendations. If States were still lagging at that

10
time, Congress should then act to secure compliance
with these essential recommendations. Report at 127.
The Commission believed that the threat of, or if nec-
essary, the enactment of Federal mandates would re-
move from each State the main barrier of effective
workmen’s compensation reform: the fear that com-
pensation costs may drive employers to move away
to markets where protection for disabled workers is
inadequate but less expensive. Report at 125. See
The National Commission on State Workers’ Compen-
sation Law: Some Reflections by the Former Chair-
man, John F. Burton, Jr., 40 IAIABC JOURNAL 15, 24
(Fall 2003).
The “Federal mandates” recommended and envi-
sioned by the Commission never materialized, perhaps
due to shifting political winds in Washington after
1972. Federal legislation inspired by the Commission’s
recommendations of minimum standards were ad-
vanced both by the “National Workers’ Compensation
Act of 1975,” S. 2018, and the “National Workers’ Com-
pensation Standards Act of 1979,” HR 5482. Both bills
sought to strengthen State workers’ compensation pro-
grams by providing “basic, national minimum require-
ments for State workers’ compensation laws” and
establish “minimum workers’ compensation benefits”
for injured employees. Id. Neither bill was enacted. In
2009, an attempt was made to reconvene a second na-
tional commission to study and renew recommenda-
tions for minimum standards in State compensation
laws. The “National Commission on State Workers’
Compensation Laws Act of 2009,” 111th Congress, HR

11
635 was introduced but opposed by most employers
and insurers and was never enacted. See, generally,
Should there be a 21st Century National Commission
on State Workers’ Compensation Laws? John F. Bur-
ton, Jr., American Bar Association, Workers’ Compen-
sation Sections Midwinter Seminar and Conference,
March 16, 2013.
Any realistic threat from Congress to the States
imposing minimum standards to their compensation
schemes is long dead. Without any threat of federal in-
volvement to guarantee the adequacy and equitability
of State workers’ compensation laws, the Florida legis-
lature has been free to continue the race to the bottom
with its sister states. Florida’s history in cutting bene-
fits to reduce costs in an effort to attract business is
well documented.
After enacting workers’ compensation in 1935,
Florida made few major changes to its law until 1979
when, “given the importance that workers’ compensa-
tion plays in bringing new and expanded business to
Florida . . . massive reforms” were made. Florida Sen-
ate Staff Analysis and Economic Impact Statement,
Bill: SC-12C, November 1, 1993. In 1988, the Florida
legislature intending to “ensure a stable and dynamic
economic climate,” and “attract and maintain busi-
nesses suitable to the state,” created the “Florida Eco-
nomic Growth and International Development
Commission,” which quickly concluded that “Florida’s
reputation as a high cost workers’ compensation state
inhibited economic growth.” Chapter 88-201, Laws of
Florida.

12
In 1990, Florida enacted further “reform” of its
compensation laws with the “Comprehensive Eco-
nomic Development Act of 1990” based again on cost
reduction as compensation costs were “causing severe
economic problems for Florida’s business community
and adversely impacting Florida’s ability to attract
new business development to the state.” Legislative
findings; Chapter 90-201, Laws of Florida.
And in 1993, Florida enacted a massive “reform” of
its compensation laws with Chapter 93-415. According
to the Florida Senate Staff Analysis and Economic Im-
pact Statement for Bill: SC-12C, November 1, 1993:
“Cost reduction legislation was the goal in 1935, when
Florida enacted its first workers’ compensation law, as
well as in 1979, 1989, and 1990. And once again cost
reduction is the goal in 1993.”
Slashing of benefits continued in 2003 when Flor-
ida enacted still yet another “reform” reducing benefits
in order to cut costs and attract business to Florida.
Per House of Representatives Staff Analysis for HB
1837, April 13, 2003: “ . . . total labor costs . . . is the
number two factor . . . businesses give as location fac-
tors for their business. It is clear that these costs are
hurting Florida’s ability to attract businesses, thereby,
limiting economic growth.”
Florida’s cumulative reforms in 1990, 1994 and
2003 have not only resulted in arbitrary and insignifi-
cant benefits, they have destroyed the requisite funda-
mental nature of compensation as remedial social

13
legislation designed to provide needed medical and
wage replacement benefits with speed and certainty.
Neither Florida nor her sister States locked in
competition are likely to conform their compensation
laws to constitutional standards. This Court’s inter-
vention is necessary to stop the free fall.
B. Florida’s Lead In The Race To The Bot-
tom Has Destroyed Its Compensation
Scheme Which No Longer Provides Cer-
tain Definite And Easily Ascertained Ben-
efits
Injured workers in Florida today no longer benefit
from a compensation law designed to provide “a certain
and speedy remedy,” or the “sure . . . definite and easily
ascertained compensation,” promised by this Court in
White, 243 U.S. at 201, 204. This was not always so.
When enacted in 1935, Florida’s Compensation scheme
constituted “social legislation, the design, intent, and
purpose of which is to provide for injured workmen,
and – if they should die from injuries received in their
employment, for their dependents, in such a way that
the burden may fall on the industry served, not on so-
ciety.” Florida Erection Services v. McDonald, 395
So. 2d 203, 209 (Fla. 1st DCA 1981). By design, the
Florida scheme favored workers, arming them with
lowered burdens of proof, presumptions and judicial
doctrines to guarantee the speedy provision of benefits
so as to maintain the constitutional validity of compen-
sation as a reasonably just substitute. Procedural and

14
substantive provisions were embedded in the scheme
to compel the delivery of benefits and avoid the “prove
it” mindset of the tort system. An injured worker need
only show “a state of facts from which it may be rea-
sonably inferred” that the worker was injured during
the course and scope of employment. Johnson v. Koffee
Kettle Restaurant, 125 So. 2d 207 (Fla. 1960). Proof us-
ing the “markedly different” preponderance of the evi-
dence standard was rejected since compensation was
“a means devised to require industry to share with so-
ciety the expense of injuries caused by it”; using a pre-
ponderance of the evidence standard would “cut off
many who are entitled to workmen’s compensation.”
Johnson, 125 So. 2d at 299.
Injured workers were aided by the “Logical Cause
Doctrine”: Where a serious injury was conclusively
shown and a logical cause for it proven, the employer
who sought to defeat recovery for the injury incurred
the burden of overcoming the established proof and
showing that another cause of the injury was more log-
ical and consonant with reason. Crawford v. Benrus
Market, 40 So. 2d 889, 890 (Fla. 1949). Injured workers
were provided with rebuttable presumptions includ-
ing: 1) that every claim of an injured worker comes
within the provisions of the law; and 2) that sufficient
notice of the claim has been given to the Employer. Fla.
Stat. § 440.26 (1979).
As remedial legislation, both the Act itself and
the facts presented to a compensation judge or the
courts were to be “liberally construed” to establish the

15
provision of benefits under the Act. Gillespie v. Ander-
son, 123 So. 2d 458, 463 (Fla. 1960). Even in doubtful
cases, such doubt should be resolved in favor of the in-
jured worker “to protect him and fulfill the purpose of
the Act.” Alexander v. Peoples Ice Co., 85 So. 2d 846, 847
(Fla. 1955).
The Florida scheme once recognized it would be
fundamentally unfair to penalize injured workers with
preexisting impairments, and protected such workers
by operation of the maxim – part of “the basic philoso-
phy of our workmen’s compensation act” – that an “em-
ployer takes the employee as he finds him.” Evans v.
Florida Industrial Com., 196 So. 2d 748, 751 (Fla.
1967). The law prohibited apportionment of medical
and temporary benefits (those wage replacement ben-
efits when an injured worker is still recovering from
injuries) and limited apportionment to permanent dis-
ability benefits to circumstances where a preexisting
condition: 1) Was disabling at the time of the accident
and continued to be so at the time permanent disabil-
ity benefits became payable; or 2) Was producing no
disability at the time of the accident, but through its
normal progress was doing so at the time permanent
benefits became payable. Evans, 196 So. 2d at 752.
It was this system of workers’ compensation
which provided adequate, speedy and certain compen-
sation for which the Court in Kluger v. White, 281
So. 2d 1, 9 (Fla. 1973) remarked:
Workmen’s compensation abolished the right
to sue one’s employer in tort for a job-related

16
injury, but provided adequate, sufficient, and
even preferable safeguards for an employee
who is injured on the job, thus satisfying one
of the exceptions to the rule against abolition
of the right to redress for an injury.
But in 1994, cataclysmic changes fueled by Flor-
ida’s full sprint to the bottom were made to the Florida
scheme abolishing all of the lowered burdens of proof,
presumptions and judicial doctrines which had been
part of the law for almost 60 years. Liberal construc-
tion of the law and facts, long held to be an aspect of
“certainty” of recovery contributing “to the constitu-
tional validity of the worker’s compensation system.”
Regency Inn v. Johnson, 422 So. 2d 870, 876 (Fla. 1st
DCA 1982), was explicitly outlawed and replaced with
the legislative command that neither “the facts” nor
the compensation “laws” are “to be interpreted liber-
ally in favor of either employee or employer.” Fla. Stat.
§ 440.015 (2003). Workers must now prove their case
by a preponderance of the evidence, Branham v. TMG
Staffing Services, 994 So. 2d 1172 (Fla. 1st DCA 2008),
a standard which “cut[s] off many who are entitled to
workmen’s compensation.” Johnson, 125 So. 2d at 299.
Injuries due to occupational disease, repetitive expo-
sure, exposure to a toxic substance and/or mental or
nervous injuries now require proof by the “practically
unachievable” burden of “clear and convincing evi-
dence.” Fla. Stat. § 440.09(1), § 440.093(2) (2015).
Altman Contractors v. Gibson, 63 So. 3d 802 (Fla. 1st
DCA 2011) (Wolf, J., dissenting).

17
The 1994 reforms went much further. Aside from
truncating substantive medical and wage benefits,
Florida abolished its remedial compensation scheme
“the design, intent and purpose of which is to provide
for injured workmen” Florida Erection, 395 So. 2d at
209, and instituted a tort-like, “prove it” system of
justice replete with higher standards of proof and in-
creased standards to prove causation or the “compen-
sability” of an injury. “[T]he basic philosophy of our
workmen’s compensation act” – that an “employer
takes the employee as he finds him,” Evans, 196 So. 2d
at 751, was abolished and replaced with the test of “Ma-
jor Contributing Cause” (MCC). Fla. Stat. § 440.02(32);
§ 440.09(1)(b) (1994). An even more stringent version
of the MCC test was instituted in 2003. Fla. Stat.
§ 440.09(1)(a)(b) (2003). Under current law, workers
must establish – in order to receive any medical or dis-
ability benefits – that their accident is more than 50%
responsible for the injury compared to all other causes
combined for which treatment or benefits are sought.
Fla. Stat. § 440.09(1)(a)(b) (2015); Gallagher Bassett
Services v. Mathis, 990 So. 2d 1214 (Fla. 1st DCA
2008). Proof of MCC is not only mandatory at the out-
set; in order to continue to receive medical or disability
benefits, workers must be able to constantly prove that
the accident is and remains more than 50% responsible
for the injury as compared to all other causes com-
bined. Farnam v. U.S. Sugar, 9 So. 3d 41 (Fla. 1st DCA
2009). Under Florida’s current scheme, the delays and
difficulty of proof of liability and damages feared in
White have been replaced with the delays and diffi-
culty of proving causation to recover meager benefits.

18
Even workers able to prove major contributing
cause may have needed benefits delayed, denied or
reduced under the 2003 reforms which direct that
all benefits – needed medical treatment, temporary
disability and permanent disability benefits – be ap-
portioned due to a worker’s pre-existing disability or
impairment. Fla. Stat. § 440.15(5)(b)(2). Injured work-
ers without virginal spines, shoulders, hips, knees or
other conditions before an accident may have their
medical and wage benefits reduced by up to 49%
through apportionment – even though such workers
sustained compensable injuries. See, Frankel v. Loxa-
hatchee Club, Inc., 179 So. 3d 384 (Fla. 1st DCA 2015)
(employer responsible for only 75% of costs of shoulder
surgery as 25% of need due to pre-existing rotator cuff
condition per employer’s physician).
A key piece of Florida’s full sprint to the bottom
starting in 1994 and completed in 2003, lies in the hi-
jacking of injured workers’ medical care. Although
Florida always rejected the National Commission’s
“essential recommendation” that workers “be permit-
ted the initial selection of his physician,” Report at 78,
79, employers historically enjoyed the power of initial
selection of care subject to a workers’ veto. The 2003
reforms stripped workers of any choice in their medical
care with employers now possessing the unfettered
right to select all “authorized” physicians that treat an
injured worker. Fla. Stat. § 440.13(3). And, since work-
ers have no expectation of privacy in such medical care,
Fla. Stat. § 440.13(4)(c), S & A Plumbing v. Kimes, 756
So. 2d 1037 (Fla. 1st DCA 2000), employers have free

19
rein to twist the arms of their handpicked physicians
to limit treatment and obtain favorable opinions on
MCC and apportionment.
Insurance company doctors not only make the crit-
ical decisions on MCC and apportionment, but also
control decisions on ability to return to work, maxi-
mum medical improvement, work restrictions and the
percentage (if any) of permanent impairment. An
injured worker has the right to a “one time change”
in authorized physicians, but the employer has the
right to select the replacement physician. Fla. Stat.
§ 440.13(2)(f ). Thus, unless an injured worker can af-
ford the $1000 or so to obtain a one-time Independent
Medical Exam (IME), Fla. Stat. § 440.13(5), the worker
is stuck with the treatment and opinions from the em-
ployer’s physician.
For many injured workers, Florida’s compensation
scheme, once designed to provide speedy, certain and
modest benefits, has morphed into a Kafkaesque world
where, in order to obtain benefits, they must navigate
a procedurally difficult system (including complex
Daubert hearings), prove their case using evidence
from authorized doctors, and overcome Major Contrib-
uting Cause and apportionment defenses. Many in-
jured workers struggling to receive benefits now face a
higher standard than “proximate cause” in the tort
civil system. Injured workers no longer fear the delays
and dangers of Florida’s tort system: they fear the de-
lays and danger of a compensation system that pro-
vides meager and illusory benefits.

20
For those injured workers suffering from perma-
nent disabling injuries and trying to feed and keep a
roof over their families’ head, their nightmare truly be-
gins when they discover that Florida’s compensation
scheme no longer provides any benefits for permanent
loss of wage earning capacity. This bad dream intensi-
fies when workers discover that they must now par-
tially pay for their medical care out of meager benefits
they receive based upon an arbitrary impairment rat-
ing.
C. Florida’s Lead In The Race To The Bot-
tom Has Resulted In Arbitrary And Pat-
ently Inadequate Benefits With The Loss
Of Any Benefits For Permanent Loss Of
Earning Capacity And Elimination Of
Full Medical Care
Florida’s elimination of any benefits for perma-
nent loss of wage earning capacity has resulted in
workers no longer being provided with wage replace-
ment benefits within a “reasonable and definite scale,
by way of compensation for the loss of earning power
incurred in the common enterprise.” White, 243 U.S.
at 203. In order for compensation to be the exclusive,
constitutional remedy for a workplace injury, White
teaches us that injured workers must be “entitled to
moderate compensation in all cases of injury,” not “un-
reasonable in amount” based upon “the loss of earning
power.” White, 243 U.S. at 201, 204, 206. (Emphasis
supplied). Although compensation is not required to be
based “solely upon loss of earning power” and may

21
“take into consideration any substantial physical im-
pairment attributable to the injury, whether it imme-
diately affects earning capacity or not,” such
compensation must “produce a fair result” and not be
“unreasonable, arbitrary, or contrary to fundamental
right.” New York C. R. Co. v. Bianc, 250 U.S. 596, 602,
603, 40 S. Ct. 44, 63 L. Ed. 1161 (1919) (upholding com-
pensation payable for serious facial or head disfigure-
ment).
Florida’s compensation scheme once followed
these dictates providing modest benefits to a worker
for the permanent loss of earning power. This loss of
earning power is reflected in the concept of “disability”
as opposed to “impairment”; “impairment” means “any
anatomic or functional abnormality or loss determined
as a percentage of the body as a whole, existing after
the date of maximum medical improvement,” while
“disability” means “incapacity because of the injury to
earn, in the same or any other employment, the wages
which the employee was receiving at the time of the
injury.” Fla. Stat. § 440.02(11) and (19) (1993).
From 1935 until 1979, permanently impaired
workers were entitled to “Permanent Partial Dis-
ability” benefits which took into account the projected
economic loss for “scheduled” injuries, Fla. Stat.
§ 440.15(3)(a)-(t) (1978) and for “unscheduled” injuries.
Fla. Stat. § 440.15(3)(u) (1978). For an unscheduled in-
jury (such as a herniated disc), workers were compen-
sated for their physical impairments in an amount
equal to their percentage of permanent impairment
multiplied by 350 weeks and multiplied again by their

22
full compensation rate. If their loss of wage earning ca-
pacity (“disability”) exceeded the percentage of impair-
ment, the higher number was awarded to compensate
for a “disability” greater than the “impairment.” Fla.
Stat. § 440.15(3)(u).
From 1979 to 1990, Florida switched and followed
an almost pure “wage loss” concept for determining
permanent partial disability. Except for impairments
“due to amputation, loss of 80% or more of vision . . . or
serious facial or head disfigurement,” workers with
physical impairments were only compensated for
their actual, demonstrable loss of wages. Fla. Stat.
§ 440.15(3)(a)(b) (1979); Regency Inn v. Johnson, 422
So. 2d 870, 874-875 (Fla. 1st DCA 1982). Workers with
even 1% of impairment were entitled to receive up to
520 weeks (ten years) of wage loss benefits (for “dis-
ability”).
Between 1990 and 1994, Florida continued to
use the “wage loss” scheme but severely curtailed po-
tential benefits for workers suffering impairment
based upon conditions and a limited schedule. Fla.
Stat. § 440.15(3)(a)(b) (1990). Under the schedule,
wage loss benefits ranged from 26 weeks of eligibility
for impairment ratings up to 3%, to 364 weeks of eligi-
bility for impairment ratings greater than 24%. Fla.
Stat. § 440.15(3)(b)(4)(d).
But in 1994, the cataclysmic changes fueled by
Florida’s full sprint to the bottom started the death of
benefits for loss of earning power or “disability.” Bene-
fits for impairments due to amputation, loss of 80% or

23
more of vision or serious facial or head disfigurement,
were subsumed in a schedule: permanently impaired
workers’ benefits were limited to 3 weeks of compensa-
tion for each percentage point of impairment, with ben-
efits calculated at 50% of the temporary total rate. Fla.
Stat. § 440.15(3)(a)(3) (1994). In determining impair-
ment, use of the new Florida Impairment Guide was
mandated; a guide generally carrying lower anatomi-
cal impairment ratings than previously used schedules
such as the Minnesota Department of Labor and In-
dustry Disability Schedule and the Guides to the Eval-
uation of Permanent Impairment by the American
Medical Association. The only remaining “disability”
benefits, based on a wage loss formula, were reserved
for workers sustaining impairments of 20% or more of
the body as a whole measured under the new guide-
lines. Fla. Stat. § 440.15(3)(b).
As of 2003, Florida eliminated all compensation
for partial loss of wage earning capacity (“disability”)
and instituted a scheme where limited benefits are
provided based upon an impairment rating per the
Florida Impairment Guidelines and a schedule: Two
weeks of benefits for each point of impairment up to
10%; three weeks for impairment from 11% to 15%;
four weeks for impairment from 16% to 20%; and, 6
weeks for impairment of 21% and higher. Fla. Stat.
§ 440.15(3)(g). Benefits are calculated at 75% of the
temporary total rate but reduced by 50% for each week
the worker has earned income equal to their pre-injury
wages. Fla. Stat. § 440.15(3)(c).

24
The 1994 and 2003 reforms remove any doubt that
Florida indeed is winning the race. Yet, by eliminating
compensation calculated upon wage earning capacity,
Florida no longer provides the “moderate compensa-
tion,” not “unreasonable in amount” based upon “the
loss of earning power” as promised by this Court in
White, 243 U.S. at 201, 204-205. Instead, Florida now
provides unreasonable, meager benefits under an arbi-
trary scheme using a guide that itself warns that “Un-
der no circumstances shall this guide be used to
determine disability.” The 1996 Florida Uniform Per-
manent Impairment Rating Schedule, p. 4. The arbi-
trariness of awarding permanent benefits solely on an
impairment rating is further illustrated by a historical
perspective of what a permanently disabled worker,
similar to Petitioner Stahl, would have received for a
herniated disc injury resulting in a substantial loss of
earning capacity: from 1935-1978 (assuming a 50%
loss of wage capacity), up to 175 weeks in disability
benefits; from 1979 until 1990, up to 525 weeks in dis-
ability benefits; from 1990 until 1993, up to 78 weeks
in disability benefits; from 1994 until 2003, 18 weeks
in impairment benefits; and, effective 2003 to date, 12
weeks in impairment benefits.
Compensation benefits are supposed to prevent
pauperism, not to encourage it; unless of course, resul-
tant pauperism serves the purpose of forcing a desti-
tute injured worker to cheaply settle his workers
compensation claim and provide an employer with a
complete release of both compensation and employ-
ment rights, an end game event which has become the

25
norm in Florida today. Countless hard working Florid-
ians suffer career ending injuries through an em-
ployer’s negligence and are left without any true
remedy, a reality similar to Petitioner Stahl’s plight: a
total of $5,472 in benefits to replace an annual income
of $47,424 (Stahl Petition p. 17). And as icing on the
cake, out of these meager impairment benefits, perma-
nently injured workers must now pay for a portion of
their future medical care per Fla. Stat. § 440.13(14)(c).
As Justice Lewis of the Florida Supreme Court re-
cently remarked in a concurring opinion overturning
Florida’s limitation of 104 weeks of Temporary Bene-
fits:
“The reality is that Workers’ Compensation
benefits have been steadily chipped away and
reduced by the Legislature to such an extent
that intelligent, able jurists have now con-
cluded enough is enough and declared the
entire statutory scheme unconstitutional (ci-
tations omitted). . . . Florida needs a valid
Workers’ Compensation program, but the cha-
rade is over. Enough is enough, and Florida
workers deserve better.” Westphal v. City of St.
Petersburg, 2016 Fla. LEXIS 1197 (Fla. June
9, 2016).
------------------------------------------------------------------
CONCLUSION
Injured workers in Florida deserve better. But nei-
ther the Florida Courts, the United States Congress
nor the Florida legislature can or will provide a

26
remedy. This Court can and should provide Petitioner
Stahl with the appropriate remedy by granting his Pe-
tition. This Court’s granting of Stahl’s Petition will
send reverberations within the national compensation
system and will signal that the race is over as the bot-
tom has been reached. For the reasons stated above
and in Stahl’s Petition, amicus prays that this Court
grant Stahl’s Petition for a Writ of Certiorari, and hold
Florida Statute § 440.15(3) and Florida Statute
§ 440.13(14)(c) unconstitutional as violative of the Due
Process Clause of the Fourteenth Amendment.
Respectfully submitted,
RICHARD E. JOHNSON, ESQUIRE
Counsel of Record
LAW OFFICE OF
RICHARD E. JOHNSON
314 W. Jefferson St.
Tallahassee, FL 32301
Phone: (850) 425-1997
richard@nettally.com
Counsel for Amicus Curiae

Stahl Amicus of FLANELA FILED

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