Earlier today, the Florida Supreme Court rendered its opinion in the workers’ compensation case Westphal v. City of St. Petersburg. The Court held the 104 week limitation of Temporary Total Disability (“TTD”) benefits in section 440.15(2)(a), Florida Statutes, to be in violation of an injured workers’ constitutional right to access to courts. The remedy reached by the court is to “revert” to a pre-1994 version of 440.15(2)(a), which provided payment of up to 260 weeks (5 years) of TTD benefits, before an injured worker reaches what is referred to as Statutory Maximum Medical Improvement (“MMI”).
While the impact of the Court’s opinion will be broad, the facts of Westphal were quite rare. An injured worker had been paid TTD benefits for 104 weeks, was still on an off-work status, and the workers’ compensation physician refused to release the claimant to return to work or place the claimant at MMI, until additional surgery was performed.
The result was that the claimant was no longer entitled to TTD benefits (because of the statutory limitation of 104 weeks), but at the same time could not apply for permanent benefits, because he was not yet at overall MMI. This created a rare “gap” in benefits, where the claimant was clearly unable to work due to a work-related injury but at the same time was not entitled to disability (out of work) payments. The Judge of Compensation Claims denied additional TTD benefits, and held that the injured worker could not apply for Permanent Total Disability (“PTD”) benefits because he was not at MMI. On appeal, the First DCA attempted to avoid a constitutional issue by interpreting Chapter 440 to allow – in this limited circumstance – for the injured worker to apply for PTD benefits while in this “gap.”
Impact of Recent Decisions
The Florida Supreme Court, following recent Constitutional opinions on attorney’s fees in Miles and Castellanos, held that 440.15(2)(a) could not be interpreted to avoid the constitutional question. Using the same constitutional access to the court’s reasoning that was recently applied to strike down limitations on attorney’s fees, the Court held that the plain meaning of 440.15(2)(a) resulted in an unconstitutional violation of an injured workers’ access to courts. Simply put, the Statute did not provide an injured worker any redress when they found themselves in this “gap.” The only remedy the Court could agree on was to extend the 104 week limit on TTD benefits to 260 weeks, as it was in the pre-1994 version of 440.15(2)(a). The Court held that while this may still leave room for a limited number of injured workers to fall into this “gap,” previous opinions in the 1990s held that 260 weeks passed constitutional muster.
Unfortunately, the Court’s opinion does not limit the change from 104 to 260 weeks to this rare factual scenario. It appears that all TTD benefits, but also Temporary Partial Disability benefits. While the Westphal opinion does not specifically address partial disability benefits, the reasoning provided by the Court would seem to apply to both.
Key Take Away
We continue to recommend a practical approach for employers to limit these circumstances and reduce potential runaway workers’ compensation claims costs (and their resulting premium increases). By taking an active role in claims, and maintaining active communication with their insurance adjuster and defense counsel, businesses can work to offer modified duty work during an injured workers’ treatment. This reduces the need for an injured worker to be at home on an off-work status, and thereby decreases TTD costs. By informing physicians of modified duty availability, the physician often releases an otherwise “off-work” employee to return to work. These practical strategies avoid the delay that led to the “gap” found in the Westphal case, and in many cases lead to the quick resolution of a claim.