Workers’ compensation is a statutory “quid pro quo” mechanism that requires workers to relinquish their rights to sue employers in tort in exchange for employers paying for insurance that provides injured workers with medical benefits and loss-of-income protections. Workers gain by receiving simplified entitlement and expedited benefits, and employers gain by capping the risk of potentially devastating tort awards. Effective at first, Florida’s workers’ compensation legislation has not kept up with developments in tort and contract law, resulting in an imbalance in the quid pro quo transaction that pushes the scheme towards unconstitutionality.
This Article explains how an “unholy trinity” of affirmative defenses available to the employer—contributory negligence, assumption of risk, and the fellow servant rule—historically rendered an injured worker’s tort recovery untimely and uncertain. Workers’ compensation arose to equitably balance workers’ relinquishment of highly unpredictable tort recovery against employer-provided benefits that were guaranteed, but limited. The Article shows, however, that the archaic quid pro quo justification can no longer support Florida’s Workers’ Compensation Act as an injured worker’s exclusive remedy in light of Hoffman v. Jones’s replacement of contributory negligence with comparative fault, a de facto merger of the assumption of risk into comparative negligence, and a near-complete erosion of the fellow servant rule. Noting that Florida’s Constitution only allows statutory denial of one’s “day in court” if a reasonable alternative is provided, the Author argues that Florida’s workers’ compensation law is no longer a constitutionally reasonable alternative to workers’ increased ability to recover in tort. To restore balance, the Author proposes that the Florida Legislature either re-introduce the original “opt-out” mechanism, abolished in 1970, which would allow workers to contract out of workers’ compensation, or adopt a “double-protection” system that would enable workers to subsequently recover in tort any shortfall between workers’ compensation benefits and the total value determined for tangible and intangible injuries.