The First District Court of Appeal has withdrawn the earlier decision of Westphal v. City of St. Petersburg, 38 Fla. L. Weekly D504a (Fla. 1st DCA February 28, 2013) which declared a portion of the workers’ compensation statute unconstitutional and issued Westphal v. City of St. Petersburg, 38 FLW D2029 (Fla. 1st DCA September 23, 2013) finding, after nineteen years, the legislature meant exactly what it said when it passed legislation in 1994 that requires a physician to place an employee at maximum medical improvement (MMI) at the conclusion of 104 weeks of collecting temporary total disability benefits even where the injured worker may not be medically at MMI.
The Westphal v. City of St. Petersburg, en banc court has clearly distinguished between legislative maximum medical improvement by operation of statute in essence mandating “statutory” MMI in cases where the doctor cannot state the employee has medically recovered from his injuries as well as they can reasonably hope for or where the doctor simply doesn’t know what the injured worker’s final condition will be.
Westphal’s plight and the plight of many other workers revolves around the meaning of MMI and the limited period of temporary benefits they can receive under the law at 104 weeks. As defined in F.S. 440.02(10) the date of MMI “means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based on reasonable medical probability.” Inescapably, MMI encompasses a medical opinion, yet the legislature created statutory MMI after 104 weeks. Before the statutory amendments to Chapter 440 effective January 1, 1994 this was rarely a problem since employees could receive a total of 260 weeks of temporary benefits and it was a very rare case where the doctors were still hopeful for lasting improvement after five years. In my experience, it never happened.
The Westphal v. City of St. Petersburg, en banc court obviously was loath to declare parts of the workers compensation law unconstitutional. It was left with no alternative but to recede from it’s earlier decisions trying to apply traditional MMI definitions, and exceptions to the rule, set forth in City of Pensacola Firefighters v. Oswald, 710 So.2d 95 (Fla. 1st DCA 1998) and Matrix Leasing, Inc v. Hadley, 78 So.3d 621 (Fla. 1st DCA 2011). The court in Westphal, en banc found the traditional medical definition of MMI simply does not work with the 104 week limit on temporary total disability benefits and, as such, the legislature should just get what they wished for, MMI by statute.
At the same time, totally disabled is exactly that: totally disabled. Workers should not be left in the cold due to the legislature legislating MMI while slashing temporary benefits to a point where the employee goes without compensation before the doctors have done all they can do to return the employee to the work force, assuming that can ever be accomplished.
The court noted that employers and workers compensation carriers are not without recourse. F.S. 440.15(1)(d) allows them to discontinue the payment of disability benefits to a worker who has regained earning capacity through rehabilitation.
The Westphal v. City of St. Petersburg, en banc court was very cautious in its decision. In the second paragraph of the opinion it states three times that it applies when the worker has exhausted 104 weeks of “temporary total disability benefits” (TTD) leaving a sea of uncertainty for those receiving temporary partial disability benefits (TPD) at the end of 104 weeks who have restrictions and may not be working due to the severity of those restrictions. Certainly workers will argue it’s a distinction without a difference, to which the employers and insurance companies will counter the court must have meant a difference with such a narrowly tailored opinion. The workers position sounds more persuasive since F.S. 440.15(3)(d), which the court pointed to for the proposition of “statutory” MMI, speaks generically to “temporary benefits” and doesn’t differentiate TTD from TPD benefits.
From the lawyers perspective, the question becomes who has to prove what when statutory MMI has been reached. If a person is totally disabled in the 104th week, don’t they remain totally disabled in the 105 week unless the doctor has changed his opinion. Therefore, aren’t they entitled to payment of permanent total disability benefits till such point as the employer or insurance carrier puts forth evidence to prove that the employee has regained earning capacity through rehabilitation. The language of Westphal v. City of St. Petersburg, en banc seems to suggest as much.
The question also arises as to who must prove what once the doctor places the employee at medical MMI with restrictions or releases the employee to light duty with restrictions before reaching medical MMI. Does the carrier have the right to then stop payments of PTD and is it now the employee’s burden to prove that no job is available within 50 miles of his residence? This position seems supportable.
Of course, the issue has been certified to the Florida Supreme Court as an issue of great importance and we can expect further review.