PALM BEACH POST

May 29, 2005

Florida erodes hazard aid for undocumented farmworkers

By John Lantigua

Palm Beach Post Staff Writer

FLORIDA CITY — The young agricultural worker displays raw skin over much of his face, neck and chest. On his hands and forearms, the flesh is swollen and cracked, like that of a lizard.

It has been four months since Ciro Diaz, 26, left a job spraying agrichemicals, but the condition he says was caused by that work is still virulent and visible. An acquaintance of his says not all the effects are evident to the eye.

"He is a young man, but he often forgets things," says Francisco Garza, a local representative for the Farmworkers Association of Florida, tapping his own forehead with a finger. "You start to wonder if the chemicals haven't affected him up here."

Diaz, through an attorney, recently filed a claim with the state's workers compensation system. In doing so, he has entered a legal labyrinth that has been engineered to deny him the legal protections that apply to most other workers.

In recent years, both the Florida Legislature and state compensation officials have taken specific steps to make it more difficult for undocumented workers, including agricultural workers injured by pesticides, to make claims — even as Florida outpaces any state in the union in per-acre use of agrichemicals.

Critics say the new laws have been written by business interests, particularly agrichemical companies and large agricultural operations, and passed by Florida lawmakers who take sizable campaign contributions from those same firms and their leaders.

"Farmworkers don't have political power in Tallahassee," says workers compensation attorney Gerald Rosenthal of West Palm Beach. "The Florida Fruit and Vegetable Association has power in Tallahassee."

The large farming and agrichemical associations deny they have anything to do with the new laws.

But farmworker advocates say more injured workers now go without medical treatment. In other cases, the victims show up at clinics or hospital emergency rooms but are unable to pay.

"That has shifted the cost of medical treatment from the employers and their insurance companies to the general public," says attorney Lisa Butler of Florida Rural Legal Services.

Law ignores field conditions

Steps the state has taken include an October 2003 overhaul of the workers compensation statute that forces victims to name specific chemicals and amounts used when claiming pesticide injury.

But Florida farmers often use many chemicals at the same time, which means the law as written cannot be applied to actual occurrences in the field.

"That statute was written after some attorneys were able to win cases concerning egregious behavior by agrichemical companies and other agricultural interests that injured either farmworkers or affected residents living near farm fields," says attorney Nina Sachs, a workers compensation expert at Findler & Findler of West Palm Beach.

"These exposures happen in an outdoor environment, and how is anyone to measure an exact amount applied?" says Sachs. "Sometimes, there is an acute incident and reaction, but other times the injuries are caused by multiple exposures over time. The burden of proof is unrealistic. The statute makes no sense."

Diaz, for example, worked for a Riviera Beach firm from August 2004 to January, applying herbicides to kill nuisance vegetation such as melaleuca and Brazilian pepper. Diaz claims the rubber gloves he was given would break within hours.

"They would be ripped by the thorns," Diaz says. "When I asked for more gloves, the supervisor said they were supposed to last a week, and he didn't give me more."

His hands show swelling and scars, which he says come from the chemicals.

Diaz also says the tank of herbicide spray he carried on his back often was not sealed properly. When he ducked under vines, the chemicals spilled all over his back, shoulders and neck.

"When I first met him in March, he had suppurating lesions," says Patrick Folan, office manager for Diaz's attorney, Adam Baron. "You could see the outline of the tank on his back where the stuff had spilled."

Diaz said his clothes would become soaked with herbicide, but he continued to work in them, despite warnings on product labels to the contrary. Folan says Diaz's condition was not caused by one incident that can be measured, as the statute indicates.

"It was a series of daily accidents that became a chronic condition," Folan says.

Changes reduce claims

A second recent change in Florida workers compensation procedure was a state compensation judge's ruling that any worker who cannot produce a legitimate Social Security number is ineligible for benefits.

But the overwhelming majority of Florida farmworkers are undocumented Latinos, mostly Mexicans, who are forced to buy false Social Security cards to gain employment in the fields. The Florida agricultural industry could not operate without them.

Diaz, for example, is from the Mexican state of Chiapas and is undocumented.

"Every day they pay these workers, the employers know they are undocumented and the Social Security numbers are false," says JoNel Newman, an attorney with Florida Legal Services in Miami. "But then when the worker makes a claim, they try to say they didn't know."

"They try to use it as an excuse for not paying workers compensation," says West Palm Beach attorney Rosenthal. "It's an easy way out."

After state compensation judges started applying the stiffer standard about two years ago, claims from at least 500 workers, including many employed in agriculture and construction, were dismissed.

The state has since made it possible to file an alternate form on which a worker must admit he has no Social Security number.

"But the workers are afraid that the state will use that form to deport them, so they don't file the claims," Sachs says. Many workers never even think of filing claims to begin with because work contractors have threatened them with losing their jobs, she says. Rosenthal says the recent changes led to 15 percent drop in compensation claims last year.

Farmworker advocates are fighting the changes in policy. Late last year, the First District Court of Appeal in Miami ruled that demanding Social Security numbers from claimants violates their constitutional right to privacy. The state has appealed that decision to the Florida Supreme Court and a ruling is pending.

Fee limits deter attorneys

A third change legislators made is that attorneys representing injured workers in compensation cases are now more restricted in the fees they can charge. This sounds like a way to protect workers, but private attorneys say it is the opposite.

"It's way of driving attorneys out of the workers compensation practice," says Rosenthal, who adds that attorneys for insurance companies and large agricultural companies are not limited in how much they charge.

Greg Schell of the Migrant Farmworker Justice Project says only about 10 percent of agricultural workers who sustain injuries or illness on the job end up being able to make a claim, in part because they can't get attorneys willing to help them.

Diaz is one of the lucky ones. He does have an attorney. Diaz also may have lucked out as far as his employer, Aquatic Vegetation Control of Rivera Beach, is concerned.

Folan says the adjuster for Aquatic Vegetation's insurance company, AIG, recently approved medical treatment for Diaz's skin problems, although the appointments have not yet begun. He says he also will request that Diaz receive payment for lost wages.

"Much of the time, because a worker is undocumented, they say he wasn't legally employed in the first place, so he isn't owed those wages," Folan says.

But James Burney, president of Aquatic Vegetation, says he does not oppose Diaz's receiving those wages. Burney also acknowledges that Diaz's "supervisor made a mistake" if he didn't supply Diaz with the necessary replacement gloves and allowed him to work in clothes wet with chemicals.

"We are not a negligent company," Burney says. "We try to take care of our people. But workers compensation is something that does need to be looked at because there are a lot of people out there who don't play by the rules."

Sachs, the workers compensation attorney, says it all goes back to the influence of large growers and agrichemical companies. Sachs recalls that she won a workers compensation case against U.S. Sugar Corp. in 2000. G.J. Henson, a 28-year employee of the firm, sustained paralysis of the diaphragm. Medical experts attributed it to his frequent close contact with pesticides and an adverse effect on his levels of cholinesterase, an enzyme the mind uses to send messages throughout the body. Henson still lives on oxygen support.

When U.S. Sugar appealed that ruling in 2001, large chemical companies, such as Dupont, and organizations, such as the Florida Fruit and Vegetable Association and Florida Fertilizer and Agrichemical Association, filed "friend of the court" briefs backing U.S. Sugar.

Mary Hartney of the agrichemical association said her group opposed the scientific arguments made in the case. "The only thing FFAA was against was junk science," she said.

And both she and Ray Gilmer, spokesman for the fruit and vegetable growers, deny any influence in the recent changes in pesticide injury laws. Gilmer goes on to tout his group's efforts to reinstitute "requirements for informing workers about chemicals used on farms."

Nina Sachs doesn't buy it.

"These mega-companies, they don't care," Sachs says. "They act as if these workers are disposable."