As the Florida Supreme Court wrestles with whether the state’s workers compensation law is constitutional, the Florida Courier begins a series of stories on how the law has devastated one family of a worker who was allegedly killed by his employer’s negligence.
BY THE FLORIDA COURIER STAFF
FORT LAUDERDALE – It was just another construction accident, little-noticed by any media other than the Florida Courier, where it made the front page.
From the Sept. 20, 2013 issue:
“Clayton Bailey, a native of Jamaica who emigrated here, became an American citizen, and started a new life, died Monday after being allegedly crushed by construction materials as he worked on an infrastructure project in Miami-Dade County. He was 38.
“Bailey was employed by Ric-Man Construction Florida, Inc., a heavy construction company located in Deerfield Beach, where he had worked as a pipelayer for almost nine years. According to the company website, Ric-Man “excels in heavy underground and tunnel construction and delivers nothing but quality and expertise.
“Bailey’s death set off a number of investigations that are still running their course, thus leaving his grieving family in the dark as to the exact circumstances of his death…Meanwhile, Bailey’s family continues to wonder exactly what happened. Ric-Man Construction has little to say.”
After a grief-filled homegoing service at the small Dania Beach church in which the Bailey family worshipped, Patdrica Bailey, a secretary at McNicol Middle School in Broward County, put her grief aside and took action.
She and Bailey had been married for more than eight years. The couple has five children – two each from previous relationships and a daughter, Trinity, that they had together.
Trinity was six and just starting first grade at the time her father was killed. For some time after his death, she kept trying to text messages to him. There was never a response.
When told that her father had “gone to heaven,” she asked, “Why did he leave me here?”
Patdrica retained the legal services of Eugene K. Pettis, a partner in the well-regarded personal injury firm of Haliczer Pettis and Schwamm of Fort Lauderdale. At the time, Pettis was just finishing his term as the first African-American president of the Florida Bar, the organization that regulates more than 100,000 lawyers who are licensed to practice in Florida.
Over the next two years, Pettis’s firm got worker’s compensation payments flowing to Patdrica and Trinity, and worked with the attorney for Clayton’s two other minor children to get benefits due them. Patdrica and Trinity began to get regular grief counseling.
The law firm tracked investigations by the Miami-Dade Police Department’s Homicide Division, the Fort Lauderdale office of the federal Occupational Safety and Health Administration (OSHA), and Miami-Dade County Medical Examiner’s Department, while hiring its own consultants and investigators to get to the cause of Bailey’s death.
Almost a year after Bailey was killed, Pettis filed a wrongful death lawsuit against Darryl David – the foreman on the jobsite on the day Bailey was killed – on behalf of Bailey’s surviving wife Patdrica and his three children.
It was then that the Bailey family’s fortunes and wellbeing collided with the harsh reality of Florida’s workers compensation scheme. They learned:
•Workers compensation benefits are capped in Florida at a low $150,000 in cases where a worker is killed on the job. The money is then split among the surviving spouse, if any, and all minor children.
•Workers compensation benefits are mandatory. In exchange for taking the benefits, the worker’s family can file a wrongful death action against an employer only under extremely limited circumstances – even if the benefits received are not enough to support the deceased worker’s family.
•There’s never been a case in the state of Florida in which an injured worker or a deceased worker’s family has ever successfully sued an employer covered by workers compensation insurance.
Lawmakers passed a major overhaul of the system in 2003 that sought to reduce costs amid what business groups described as an insurance crisis.
Over the years, the Florida Legislature has made the legal standard of proof so high that it’s akin to proving the employee was killed as a consequence of first-degree murder.
Under current Florida law, the employee must prove, “with clear and convincing evidence,” that the employer “deliberately intended to injury the employee” or “engaged in conduct that it knew, based upon explicit warnings specifically identifying a known danger, was virtually certain to result in death or injury to the employee, and the employee was not aware of the risk because the danger was not apparent, and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising an informed judgment, and the conduct was a legal cause of the employees’ injury or death.”
In the case of Bailey’s death, his family learned:
•Ric-Man Construction was the only contractor on the job. This was important because if subcontractors worked on the jobsite, they could have been sued, allowing the Bailey family to possibly access additional compensation.
•The family might not receive more than $150,000 – despite the fact that Ric-Man admitted to federal investigators that the equipment that killed Bailey was improperly secured. Ric-Man cut a deal with federal regulators, paid a modest fine, and went on to bid and complete more construction jobs – including an infrastructure project on the street on which the Bailey family lives – without missing a beat. For weeks, Patdrica and Trinity silently watched Ric-Man employees work in front of their home.
•The family might not receive more than $150,000 – despite the fact that Clayton Bailey made $90,000 a year and, at age 38 and in good health, had decades of probable net earnings for his family had he lived. Florida’s workers compensation doesn’t take into account the age, health, number of survivors, or yearly salary of employees who are killed on the job.
Justices weigh in
Patdrica Bailey isn’t the only Floridian who has been decimated by how Florida’s workers compensation scheme operates. The Florida Supreme Court has decided to wade into a case that potentially has major implications for the entire system.
Last month, the state’s highest court agreed to review the system after more than a decade of legal wrangling. The case, which stems from injuries suffered in 2003 by Hialeah Hospital nurse Daniel Stahl, challenges the constitutionality of the workers-compensation law.
Critics argue that the law went too far in reducing benefits for injured workers. Stahl’s filings with the court contend that changes lawmakers made in 2003 to the system “decimated and eviscerated” benefits for injured workers. It also contends that injured workers have been deprived of rights because they are blocked from pursing claims in civil trials outside of the decades-old workers compensation legal system – the same system that caps wrongful death benefits at $150,000.
As an indication of the potential high stakes, some of the state’s most influential business groups and organizations on both sides of the issue will file friend-of-the-court briefs with the state Supreme Court.
The Florida League of Cities, the Florida Chamber of Commerce, Associated Industries of Florida, the Florida Retail Federation, the National Federation of Independent Business, the Florida United Businesses Association and the Florida Roofing, Sheet Metal and Air Conditioning Contractors Association all want the law to remain intact.
Florida Workers Advocates and the Florida Justice Reform Institute, among others, want the law declared unconstitutional.
Change the law
That’s where Patdrica Bailey stands. She’s fervently praying that Florida’s current workers compensation law gets dumped or drastically changed so she can go after Ric-Man Construction, or get more than just approximately one year of her 38-year-old husband’s salary after the benefits are split among his children.
“Ric-Man was not committed to Clayton,” she said. “He was the best worker they had…As the owner of a company…you are responsible for all your workers. Construction is dangerous. Everybody on a jobsite should have everybody’s back.
“Just saying, ‘I’m sorry for your loss’ is not enough. And the little workman’s comp we got was a slap in the face. He meant everything to us…it’s as if you (Ric-Man) are laughing in our faces. This will last with us forever. He had a full life ahead of him.
“I’m looking for justice in my husband’s death and a change in the law. Not just for me, but for people who will come after me and who have to deal with the same issues.
“We now have to struggle to make ends meet. We shouldn’t have to depend on the government (for support), when we weren’t depending on them in the beginning,” she explained.
“The world needs to know what’s happening here. Ric-Man Construction left one man behind.”
Next in the series: Did Ric-Man Construction get away with murder?