In the landmark Decision Westphal v. City of St. Petersburg, slip opinion # 1D12-3563, http://opinions.1dca.org/written/opinions2013/02-28-2013/12-3563.pdf issued by the First District Court of Appeal on February 28, 2013, the court held that section 440.15(2)(a), Florida Statutes (2009), is unconstitutional under article I, section 21,of the Florida Constitution, as applied to Westphal and others similarly situated, by limiting him to no more than 104 weeks of temporary disability benefits, despite the fact that he was at that time totally disabled, incapable of engaging in employment, and ineligible for any compensation under Florida’s Workers’Compensation law for an indeterminate period. The court reversed the order of the Judge of Compensation Claims (JCC) and remanded with instructions to grant Westphal additional temporary total disability payments [TTD], not to exceed 260 weeks, as would have been provided under the relevant statutory provisions in effect before the 1994 amendment of section 440.15(2)(a), Florida Statutes.
Article 1, Section 21. Access to Courts provides: ” The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” Westphal was held in a legal limbo when his TTD benefits were exhausted at the end of 104 weeks. At the same time he could not prove entitlement to permanent total disability benefits because entitlement to PTD requires a finding of maximum medical improvement (MMI) or physician’s testimony that even though the employee was not at MMI, when the employee ultimately reached MMI in the future they would have restrictions entitling the employee to PTD. Westphal could not satisfy either condition. As is often the case, physicians don’t have a crystal ball and are not willing to make a guess as to the employee’s medical outcome before major medical procedures have been tried. As such, his justice was clearly being delayed.
The court also found that Westphal was was being denied redress for his injuries in violation of Article 1, Section 21 of the Florida Constitution because during the period of time after losing entitlement to temporary benefits and until he reached MMI, if ever, and could be entitled to PTD, he went without any compensation. The court held this system of redress does not comport with any notion of natural justice, and its result is repugnant to fundamental fairness, because it relegates a severely injured worker to a legal twilight zone of economic and familial ruin tied to the vicissitudes of physicians selected and controlled by the insurance carrier.
The decision has a dramatic impact on catastrophically injured workers who fall into the “statutory gap” for indemnity benefits. After the Westphal decision, the worker can receive on-going payments of temporary total disability benefits for five years. Without question, the decision will help to ameliorate the statutory gap for catastrophically injured workers.
The Westphal v. City of St. Petersburg decision may have much larger implications for payment of temporary partial disability benefits (TPD). Westphal specifically addressed TTD. Nevertheless, it can be strongly argued that it’s rationale is equally applicable to workers who have exhausted 104 weeks of benefits and are not at MMI who still have physical restrictions preventing them from returning to their former employment. They need additional medical care to improve their condition to get them to MMI and return them to the work force. The legal twilight zone of economic and familial ruin for the injured worker with disabling restrictions who is not at MMI after 104 weeks, who may recover from their injuries and return to work after further treatment, is just as real as the facts of Westphal.
The wisdom of Westphal v. City of St. Petersburg is clear. The court has made it abundantly clear that Florida’s workers compensation system was one of the worst in the 50 states. If the Florida legislature has any inclination to be fair to the injured worker it will not engage in another iteration of depriving workers with an unfair workers compensation system.