IS THE TEXAS WORKERS COMPENSATION ACT UNCONSTITUTIONAL?

 

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Recent cases raise the issue that benefits have eroded to the point of destruction of the quid pro quo that workers compensation has traditionally been based on.  That quid pro quo was described as:

       Workers’ compensation systems are designed around a quid pro quo: employees secure “a practical  and expeditious remedy for their industrial accidents,”…. while employers secure “a limited and determinate liability,”

Cardillo v. Liberty Mutual Co., 330 U.S. 469, 476, 67 S.Ct. 801, 806, 91 L.Ed. 1028 (1947).

The quid is the giving up the right to sue.  The quo is  the giving of benefits.  Padgett states there is no more sufficient quo and therefore the Florida Act, as applied, violates equal protection of the laws and  due process.

Workers’ compensation is an exclusive remedy to workers that work for a covered employer.  This means no lawsuits to injured workers for these workers.

In Texas, in my opinion (assuming a compelling case could be made for erosion of benefits) the outcome could include violation of the open Courts clause in the Texas Constitution.

Some of the erosions noted are:

  1. Lack of physician choice;
  2. Lack of income replacement for workers that cannot return to their former occupations; and
  3. Erosion of attorney’s fees.

      The [Florida] Act may arguably have been a reasonable alternative to tort litigation up to 1968. The benefits in the Act have been so decimated since then that it no longer provides a reasonable alternative to tort litigation.

Cortes v. Velda Farms, 2014 WL 6685226 (Fla.Cir.Ct.), 8

In my opinion, the biggest problem Texas Courts will have with the current Act/system is lack of physician choice.  If Carriers have an “approved medical network” then they steer the injured worker there.  It goes without saying that these network physicians are chosen for their ability to limit exposure to the Carriers and employers for medical costs.  Sounds too much like Obamacare for Texas.

 

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