The Sheriff’s Operations Center, a possibly sick building, has dominated and embittered relations between the Sheriff’s Office and the county government administration over the past 13 months. The confrontation between Sheriff Rick Staly and County Administrator Craig Coffey bubbled over earlier this month when Staly all but called for Coffey’s dismissal.
But that’s only one of two major disputes centering over the building.
The other is the ongoing struggle between the Sheriff’s Office’s insurance carrier and some 30 sheriff’s employees who have filed workers’ compensation claims, seeking payment of medical and other bills for the ill effects they say they’ve suffered while working in the building.
That’s the struggle that led to an Aug. 30 order by the administrative law judge in the case requiring the building to be left untouched until it could be inspected by the employees’ representative. And that’s the struggle that led to the agreement with the insurance carrier that the building’s air would be further tested today by an industrial hygienist, a step long sought by the employees affected: they do not trust the county’s own testing, which cleared the building as safe in early summer.
But getting the building tested by an independent scientist is a small victory amid several defeats for the employees who, judging from the way their cases have been treated so far by the judge in charge of their cases, seem headed for defeat in their claims for workers’ compensation.
Technically, the workers’ comp battle pits employees against Sheriff Rick Staly–their employer and his insurance carrier. In reality, even the employees’ attorney, Geoffrey Bichler (one of two attorneys representing the employees; Jeffrey Appel is the other) says the sheriff is not actually opposed to the workers’ claims, but Staly says he doesn’t get to decide what the insurance carrier does. It’s created an odd dynamic, with the sheriff himself speaking negatively against his own insurance carrier and its legal tactics, as Bichler does. But with no effect, either on the carrier or on the judge handling the claims.
Staly says his carrier’s position does not reflect his own. “In fact I have been fighting with my carrier, but they’re an insurance company, so their goal, like all insurance companies, they don’t want to pay a claim,” he said, “and unfortunately there’s Florida law that allows to fight them the way they are, and unfortunately they haven’t kept me informed. That’s part of the problem with our carrier.” He added: “While the litigation is against the Sheriff’s Office, basically there’s not much we can do because it’s in their hands,” meaning the carrier’s hands. “I want to do what’s right with my employees. If I could change workers’ comp carrier today, I would.” With all the pending claims, he said he can’t: no other insurer would cover the Sheriff’s Office. “I’m stuck,” he said.
That doesn’t help the employees so much as it squeezes them further in the middle of the battles: they may have paid a serious price with their health, and may end up having to pay an equally heavy price financially since they don’t have the deep pockets the insurance carrier–paid by taxpayers by way of the Sheriff’s Office–does.
“They’re just throwing up roadblocks–I mean the sheriff’s insurance carrier and their defense counsel,” Bichler says. “They’re filing motion after motion, they’re doing everything possible not only to defeat the claims but to stand in the way of allowing this to move in an orderly resolution.”
Just last week (on Dec. 4) Wilbur Anderson, the administrative law judge from the Office of Compensation Claims, ruled against all 30-some employees’ motion for a $2,000 advance to help pay their medical bills, pending a more permanent resolution of the case.
The ruling was not a surprise. In October, Anderson ruled against the employees’ request for an advance of nearly $6,000 to each of them. The money was to pay for today’s testing of the sheriff’s Operations Center by an independent industrial hygienist, for an independent medical evaluation of each employee, and for legal costs of $2,000 per employee. The insurer opposed the motion, even though under law the standard for such an advance did not set a high bar: the payment had to be in the best interest of the employee, it had to “not materially prejudice” the employer and its carrier (Staly would not have objected), and it had to be “reasonable under the circumstances of the case.” The employees’ request seemed to meet all three conditions.
Anderson, calling the case “totally controverted” (but without explaining why or defining the term) ruled that absent evidence that employees are “entitled” to any compensation, they are not entitled to the advance. Since the cases haven’t run their course, there’s no way to know yet whether the employees are entitled to compensation, and today’s testing is intended to gather what could potentially be part of the evidence making the employees’ case. But Anderson in essence posited a future conclusion based on just such an absence of evidence to justify his denial.
Nor was he convinced that such an award wouldn’t prejudice the sheriff or his insurance carrier in the case. He said he “rejected” the claim that the request was reasonable, saying that by having denied the claim on the first two grounds, the third had to be denied as well. It was oddly circuitous reasoning, but not unusual for judges reaching what appeared to be predetermined conclusions.
Anderson appeared to leave the door open for an advance of $2,000 or less, money to go strictly for testing of the building. So the employees’ attorney filed just such a motion. “Without an advance of compensation, the Employee is unable to secure scientific evidence as to the cause of the Employee’s medical conditions and the source of the Employee’s exposure,” that motion stated.
Anderson rejected it on Dec. 4.
His reasoning goes a long way to suggest how Anderson will rule in the end come March, when a final hearing is scheduled in the employees’ cases: “Step one requires me to determine whether Claimant has not returned to the same or equivalent employment with no substantial reduction in wages, or has suffered a substantial loss of earning capacity or a physical impairment, actual or apparent,” Anderson wrote. “No evidence has been presented that this requirement has been met. There is no evidence as to whether Claimant has returned to the same or equivalent employment with no substantial reduction in wages. Nor is there any evidence at this point that Claimant has suffered a substantial loss of earning capacity or a physical impairment, actual or apparent.”
Going further, Anderson cast doubt on the employees’ own affidavits that they were requesting the advance because they “do not have the financial means” to pay the money themselves “without jeopardizing [their] financial security.” Anderson seemed to ridicule the claim: “Based on the evidence before me, Claimant could be destitute, extremely wealthy, or anywhere in between. I am therefore unable to determine whether this particular Claimant has a real financial need for the advance,” the judge wrote, denying the claim. To a large extent, the judge is merely interpreting Florida’s worker’s comp la, notoriously unfriendly to employees as opposed to employers and insurers.
That left the employees with no option but to launch a GoFundMe account this week, with a fund-raising goal of $150,000. It launched on Dec. 10. By today, it had raised $100.
“They’re daring us to prove it but they don’t want us to have the opportunity to get the evidence in place to substantiate these claims,” Bichler said. “So they’re spending a great deal of money defending and avoiding responsibility. I’ll just tell you candidly, the sheriff I think wants this to be done the right away, he wants to take care of his officers, so I’m not sure how the insurance carrier wants to operate with respect to the sheriff.”
The employees’ claims read similarly: “Exposure to unknown toxins/mycotoxin in Sheriff’s Operation Center resulting in respiratory impairment; blurred vision; rashes and hives on hands, lower back, and torso; bacterial infection in nose and blood; immune deficiency, mental nervous injury and cognitive impairment. Part(s) of body injured: multiple- hands, torso, lower back, respiratory, eyes, nose, immune system, blood, brain. Character of disability: Exposure to unknown toxins.”
The administrative law judge issued a “preservation order” on Aug. 30, requiring the Operations Center to be left untouched. The order applies to the Sheriff and his insurance carrier, even though the county is the landlord. Following that, the administrative law judge ruled, “it would be appropriate to have the county move forward with any additional invasive inspection.” That may be ahead, in compliance with a recommendation by the Centers for Disease Control to cut sections of drywall and examine conditions the federal agency suspects may indicate the presence of mold and other toxins. The county has so far resisted that step, pointing to the administrative order not to do anything invasive in the building. But that will be next. Bichler and the sheriff, who has pushed for just such an analysis, intend to have his own observers in place for that step.
Bichler said that even if the current cases don;t succeed before the administrative law judge, he may yet press for an appeal on constitutional grounds. The fact that he is considering that step suggests how precarious the employees’ position has become.
The employees at the heart of the case meanwhile appear to be behind a campaign to fire Craig Coffey, launching a Facebook page to that effect sometime in the past few weeks. A sample entry: “‘Faking’ This is the word used by County Administrator Craig Coffey to describe the employees of the Flagler County Sheriff’s Office who have been fighting allergic reactions, painful rashes, vision problems, loss of memory, crippling headaches, and in some cases, life changing incurable diseases. Has he apologized? Has he shown any sign of compassion? Has he shown the slightest interest in searching for alternatives? NO. All he has done is spin every recommendation, every truthful story, heartbreaking account, or horrible reality of this situation in to feeble attempts to cover up the [atrocity] of a problem building that he helped create. It is disgusting and appalling to think that someone in such a high position within the County could think so little of the citizens and first responders.”