Opposition Brief — Myers v. City of North Miami

No. 03-555

Jn The

Supreme Court of the Gnited States

¢

ARTHUR MYERS,

Petitioner,

V.

CITY OF NORTH MIAMI AND INTEGRATED

ADMINISTRATORS INSURANCE COMPANY,

Respondents.

On Petition For Writ Of Certiorari

To The District Court Of Appeal Of Florida,

First District

RESPONDENTS’ RESPONSE FOR PETITION

FORA WRIT OF CERTIORARI

¢

WILLIAM C. ROBINSON

Florida Bar No. 386847

220 Courthouse Plaza

28 West Flagler Street

Miami, Florida 33130

Email: wcomp@bellsouth.net

Telephone: (305) 379-5035

Facsimile: (305) 379-5097

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Question One: Whether the Florida court of appeals

correctly concluded that the state workers compensation

statute allowing termination of supplemental benefits

pursuant to 440.15(1)e(1) Florida Statutes (1991), and

section 440.15(1)(f)1 Florida Statutes (1995) was not a

“reverse offset”, and therefore neither in conflict with, nor

preempted by 42 U.S.C. 424 which governs entitlement to

social security benefits?

Question Two: Whether the Florida court of appeals

correctly decided that the above-mentioned state statutes

which terminate supplemental benefits to certain injured

workers were not violative of the equal protection clause of

the United States Constitution, because the Florida

legislature had a legitimate state interest to reduce

workers compensation premium costs to business.

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Integrated

Administrators, is a subsidiary of Blue Cross Blue Shield

of Florida.

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Page

CASES

Acosta v. Kraco, Inc., 471 So.2d 24 (Fla.), cert.

denied, 474 U.S. 1022, 88 L. Ed2d 559, 106

i ER, Pe Ce ce sicinsecinsenseusnsacaisiniiiisisnaaneauieiiinatidibandiaenedi 3

Berry v. H.R. Beal & Sons, 649 A.2d 1101 (Me.

SP vncincstcnenasiniosaniaianmudiniensemabaniealeaaienaiinamiaiads 4

Burger King Corp. v. Moreno, 689 So.2d 288 (Fla.

BA Sk RTD vn essissinivieinacisin eriscenncensiecrsnsiachietetahbasetsinaanbanlidengiiaten 5

Brown v. Goodyear Tire & Rubber Co., 3 Kan. App.

2d 648, 599 P.2d 1031 (1979), aff’d, 227 Kan.

645, 608 P.2d 1356, appeal dismissed, 449 U.S.

914, 66 L. Ed. 2d 142, 101 S. Ct. 310 (1980).............0.0... 3

Culver v. Ace Electric, 971 P.2d 641 (S. Ct. Colo.

PID sitsssicstincccnssinsdicceencucelicectinnctcianeibinieatiaaneadaceaicmeadiaiiadiadinemaaa 4

Dixon v. Pasadena Yacht and Country Club, 731

SDE 141 CPR: TOt ECA, BGP inccvsrcsescvessescesccnscvsennannsvnns 5

Harris v. Department of Labor & Indus., 120 Wash.

WE BEL, BAS Ce TRG CIID cccvesnsesccssessinnsnccscssasnsssnainses 4

Injured Workers of Kansas v. Franklin, 942 P.2d

PE Cy TR FE Be ices iesnestnsviserecenstciisceensetmmnaions 4

McClanathan v. Smith, 186 Mont. 56, 606 P.2d 507

Cl cancshonnsisnitnidnenissiemmnianidinbadnantaieaeiiamliieiitis 4

McDowell v. Jackson Energy RECC, 84 S.W.3d 71

Ck CR, BE FD viinctecceninversecesuscesennnnensenieanienseednennnen 4

Orlando Regional Health-Care Systems v. Owens,

731 So.2d 1278 (Fla. Ist DCA 19GB) .......cccccoccsscccccrsecssees 5

Pankow v. General Motors Corp., 482 Mich. 892

SOIT cieite\cibesincdesiinahaidaehih hiiaiica esata lela 4

Vv

TABLE OF AUTHORITIES - Continued

Page

Peck v. General Motors Corp., 164 Mich. App. 580,

GET TE. Fede EE (ROT) ssteissnerdasioaioeas 4

Richardson v. Belcher, 404 U.S. 78, 30 L. Ed. 2d

aay Oe ee Se Se CITE cocescaaeomannaeaael 3

Rosa v. Warner Elec. Contr., 849 P.2d 845 (Colo. Ct.

App. 1992), aff’d, 870 P.2d 1210 (Colo.), cert.

denied, 513 U.S. 814, 130 L. Ed. 2d 25, 115 S. Ct.

FF CIO a Pceesccnvnsniinsmvissndisabdnennniabidietis iia a ee 3

Rose v. Arkansas State Police, 479 U.S. 1, 93

L. Ed. 2d 183, 107 S. Ct. 384 (1986) .............ccccccosccessesses 2

Sasso v. RAM Property Management, 317 So.2d 204

Cia. Zh Ta Tes nssassanvscstnanesiotnanieneementabienssamamias sana 5

Scott v. Mohawk Canoe, 730 So.2d 731 (Fla. 1st

DCA 1999) sssseeeceseaserecsssssescssnesscesssseseneasenesesssceseseacssenessees 5

Tobin’s Case, 424 Mass. 250, 675 N.E.2d 781 (1997)......... 3

Vogel v. Wells Fargo, 9837 S.W.2d 856 (S. Ct. Tenn.

| | EO EE ERM Mac sn Nee 4

Wilkins v. Broward County School Board, 754 So.2d

CE ER. BAR Cs Gi ivantsnciiaanaassentetcaiaee eee 5

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1

OPINIONS BELOW

The opinion of Judge of Compensation Claims Kath-

ryn S. Pecko, dated January 16, 2002, in the case of Myers

v. City of North Miami, OJCC Nos. 91-000397MIA, 92-

001239MIA is unpublished. Her decision was appealed to

the Florida First District Court of Appeal, and consoli-

dated with Harrell v. Florida Construction, et al., 834

So.2d 352 (Fla. 1st DCA 2003). The Florida Supreme Court

declined to accept jurisdiction of the case July 16, 2003,

and it is reported at Harrell et. al. v. Florida Construction

Specialist, 851 So.2d 728 (Fla. Ist DCA 2003)

*

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JURISDICTION

The jurisdiction of this court is invoked pursuant to 28

U.S.C. Sec. 1257(a).

4

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STATEMENT

The opinion of the Florida First District Court of

Appeal is the best statement of the facts, and are fairly

restated by the petitioner in his brief. Respondent natu-

rally adopts, and incorporates that opinion for purposes of

this response.

+

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ARGUMENT

No judicial interpretation of federal, and state stat-

utes correlating the receipt of social security benefits, and

workers compensation benefits has accepted the peti-

tioner’s claim that it is illegal for state legislatures to

2

amend their workers compensation laws after the passage

of the Omnibus Reconciliation Act of 1981, due to violation

of the Supremacy Clause of the United States Constitu-

tion, and the preemption of federal social security law. In

1990 the state of Florida was faced with a crisis in workers

compensation due to high premium costs for employers.

The legislature was charged, by the then Governor Lawton

Chiles with reducing premium costs for businesses by

amending the benefit structure to injured workers. ‘To-

wards this end, the sweeping changes in the workers

compensation statute included the limitation on payment

of supplemental benefits authorized as cost of living

increases for injured workers receiving permanent total

disability workers compensation benefits, and eligible for

social security. The legislature of Florida was justified, due

to the insurance crisis in the state, in creating this cost

saving measure for business, and amending the state

statute did not violate the Supremacy Clause, or Equal

Protection Clause of the United States Constitution.

There is no supremacy clause violation in

440.15(1)e(1) Florida Statute 1991 because there is no

express intent by Congress in 42 U.S.C. Sec. 424a(d) to

usurp state authority over supplemental benefits.

440.15(1)e(1) Florida Statute does not create an offset,

reverse or otherwise, which could be interpreted as consti-

tutionally repugnant. Petitioner’s reliance on Rose uv.

Arkansas State Police, 479 U.S. 1, 93 L. Ed. 2d 183, 107

S. Ct. 334 (1986) is misplaced. In that case there was no

issue of congressional intent as legislative histories clearly

illustrated Congress’ intent to protect widows of police

killed_in the line of duty. In the instant case no similar

intent is expressed in the Omnibus Budget Reconciliation

Act of 1981 to assist this court in concluding Congress’

3

amendment to 42 U.S.C. Sec. 424a would tolerate no state

action in the coordination of social security and workers

compensation benefits. Thus far no legislative history or

other evidence has been presented to support the position

of the petitioner that any state action correlating workers

compensation benefits with social security is illegal. After

lengthy preemption analysis, petitioner’s argument,

relying on the violation of the Supremacy Clause was

correctly rejected by the Florida First District Court of

Appeal.

Petitioner’s equal protection argument, that state

laws which terminate workers compensation benefits upon

receipt of social security benefits is wrong, has been raised

in many states, and been largely rejected. They have been

upheld in most states as constitutional. Although some

state supreme courts have decided this issue differently

from the decision below, it appears the better view, and

probably most prominent, concludes no constitutional

challenge exists. As stated by the Supreme Court of

Massachusetts in Tobin’s Case, 424 Mass. 250, 253, 675

N.E.2d 781 (1997):

For these reasons, there is universal agree-

ment that statutes like G. L. c. 152, § 35E, pro-

mote legitimate governmental goals and do not

violate rights of equal protection. See Richardson

v. Belcher, 404 U.S. 78, 82-84, 30 L. Ed. 2d 231,

92 S. Ct. 254 (1971); Rosa v. Warner Elec. Contr.

849 P.2d 845, 848 (Colo. Ct. App. 1992), aff’d,

870 P.2d 1210 (Colo.), cert. denied, 513 U.S. 814,

130 L. Ed. 2d 25, 115 S. Ct. 69 (1994); Acosta v.

Kraco, Inc., 471 So. 2d 24, 25 (Fla.), cert. denied,

474 U.S. 1022, 88 L. Ed. 2d 559, 106 S. Ct. 576

(1985); Brown v. Goodyear Tire & Rubber Co., 3

Kan. App. 2d 648, 653, 599 P.2d 1031 (1979),

4

aff’d, 227 Kan. 645, 608 P2d 1356, appeal dis-

missed, 449 U.S. 914, 66 L. Ed. 2d 142, 101

S. Ct. 310 (1980); Berry v. H.R. Beal & Sons, 649

A.2d 1101, 1103 (Me. 1994); Peck v. General Mo-

tors Corp., 164 Mich. App. 580, 599, 417 N.W.2d

547 (1987), vacated on other grounds sub nom.

Pankow v. General Motors Corp., 432 Mich. 892

(1989); McClanathan v. Smith, 186 Mont. 56, 66,

606 P.2d 507 (1980); Harris v. Department of La-

bor & Indus., 120 Wash. 2d 461, 478-481, 843

P.2d 1056 (1993).

Add to this chorus recently decided McDowell v. Jackson

Energy RECC, 84 S.W.3d 71 (S.Ct. Kentucky 2002),

Injured Workers of Kansas v. Franklin, 942 P.2d 591 (S. Ct.

Kansas 1997), Vogel v. Wells Fargo, 937 S.W.2d 856 (S. Ct.

Tenn. 1996), Culver v. Ace Electric, 971 P.2d 641 (S. Ct.

Colo. 1999), and it becomes clear the equal protection

argument has been constantly rejected.

The state statute enacted by the Legislature in 1990 is

not violative of the equal protection clause of the United

States Constitution because there is a rational basis for

cessation of the supplemental benefit, particularly in light

of the workers compensation crisis, which existed in this

state at the time of its enactment. The legislative pream-

ble of the workers compensation law as amended in 1990

consistently refers to cost savings as a basis for amending

the statewide compensation benefits scheme. Clearly equal

protection is not violated when the legislature predicates

its statutory changes to the delivery mechanisms of

workers compensation benefits upon cost savings, and the

need to encourage business development in the state at a

time when workers compensation coverage would have

been cost prohibitive without legislative action. Case law

is clear that in cases involving the area of economics and

5

social welfare, state classifications must bear some ra-

tional basis to the legislative goal to be achieved in order

to be consistent with equal protection principles. That is to

say there must be a rational basis for classifications

created by the legislature to achieve objective goals for the

state. Sasso v. RAM Property Management, 317 So.2d 204

(Fla. lst DCA 1983).

Industry looks to the courts to interpret the laws so as

to maintain the stable business climate, and not to disturb

the existing precedent which has been relied upon for

more than 10 years. This industry in Florida cannot take

another shock wave overturning established laws already

rightly decided by the courts. The first district court of

appeals has considered this statute on several occasions.

In Wilkins v. Broward County School Board, 754 So.2d 50

(Fla. lst DCA 2000) the court noted three cases in 1999

alone considered this statute. See Orlando Regional

Health-Care System v. Owens, 731 So.2d 1278 (Fla.1st

DCA 1999); Dixon v. Pasadena Yacht and Country Club,

731 So.2d 141 (Fla. 1st DCA 1999); Scott v. Mohawk

Canoe, 730 So.2d 731 (Fla. lst DCA 1999); Burger King

Corp. v. Moreno, 689 So.2d 288 (Fla. 1st DCA 1997). While

there is disagreement as to whether or not the specific

constitutional arguments raised by Petitioner were raised

in the above-mentioned cases, it is submitted the statute

has been adequately reviewed, and its constitutionality

rightly decided by the Florida First District Court of

Appeal.

The constitutionality of this state statute is not

legitimately in issue, and the interpretation of the law

requires adherence to stare decisis. Jurisdiction does not

6

lie upon the arguments presented, and this court’s discre-

tion should not be exercised.

,

CONCLUSION

This court should decline to exercise its discretionary

jurisdiction because the district court of appeal properly

concluded the state statute constitutional.

Respectfully submitted,

WILLIAM C. ROBINSON

Attorney for Respondent

220 Courthouse Plaza

28 West Flagler St.

Miami, Florida 33130

Telephone: (305) 379-5035

Email: wcomp@bellsouth.net

Florida Bar No: 386847