The Florida Fiasco - Padgett and Recreational Boating

What fun.   In Florida Workers’ Advocates, Workers’ Injury Law &Advocacy Group and Elsa Padgett v. State of Florida, the Court held that the gradual erosion of workers’ rights through successive amendments to the law rendered the Workers’ Compensation statute unconstitutional under the Florida Constitution.  Of course, this has created quite a frisson in the Workers’ Compensation Community, now largely ensconced in Orlando for their annual gripe fest.  For not only is the Florida Act now in doubt, but all other states need to review the logic of the case and measure their current statutes against their state constitutions – and, of course, the Federal Constitution.  Oh joy, open your books at New York Central Railroad v White, and work on through the cases in the early twenties.

But what does this have to do with the Longshore and Harbor Workers' Compensation Act?  Surely nothing since 1930 has so far changed the Act as to render it unconstitutional.  (Although there were whispers that the landward extension might not be as constitutional as all that, the whispers seem to have ceased).  So that’s fine.

Now consider the Longshore and Harbor Workers' Compensation Act, section 2 (3) at the end: ”if the individuals described in clauses (A) through (F) are subject to coverage under a State workers’ compensation law”. Of course, (F) covers recreational vessel builders and repairers.  So all these folk are suddenly going to have to hope the Padgett case will be overturned or get Longshore cover in a hurry.  What an enjoyable time for a lawyer or a broker.  Do you advise your clients to protect themselves in case, by taking out the insurance?  Do you advise them to report the cases to the Department of Labor and then deny them?  Or do you advise them that the Padgett case is of doubtful validity and to wait it out?

Of course, the Department of Labor regulations want a decision on its merits from the State to the effect that the worker is not covered under state law. See 29 CFR §701.401 (a): “For these purposes, a worker or dependent must first claim compensation under the appropriate state program and receive a final decision on the merits of the claim, denying coverage, before any claim may be filed under this Act.”  This presupposes a state program, and a valid one at that.  Both Texas and Oklahoma have opted out provisions from their state programs.  The regulation is going to get a lot of scrutiny in the near future.  A change, however, like the mythical Englishman of song, (ask Eartha Kitt), takes time.

The quickest best solution is for Florida to adopt an Act above suspicion.  They could always adopt the Longshore and Harbor Workers' Compensation Act.  It has stood the test of time.