Greetings,

Yesterday, the 1^st DCA confirmed that the Fla Supreme Court’s decision in the Westphal case applies to both Temporary Total and Temporary Partial Disability.

In Jones v. Food Lion, Case No. 1D15-3488 (attached), the claimant filed for PTD at the expiration of 104 weeks, even though he was not at MMI.  The case was heard by the JCC before the Fla Sct decision in Westphal, so the JCC found the claim for PTD was not ripe.  The 1^st DCA agreed that PTD was not ripe, but for the reason now that he is eligible for 260 weeks of TPD.

The 1^st DCA concluded that the Fla Supreme Court’s reasoning also encompasses any “gap” created by the 104 week cap on TPD.  Similar to Westphal, a claimant who was receiving TPD and reached the 104 week-cap would suffer a reduction in benefits and would be cut off from the ability to receive any disability benefits at all.

Most of us had been operating under this assumption that this was where it would shake out. 

It applies to all claims with a date of accident after 1/1/1994 that were cut off at 104 weeks.  However, recall any claims with a date of accident between  1/1/1994-9/30/2003 have a 401 week limit on the window for temporary benefits to be paid.

Fla statute 440.15(3)(c).  ( This is not in the 2003 statute, so any claims after 10/1/2003 have no such window)

Duration of temporary, impairment and supplemental income benefits- The employee’s eligibility for temporary benefits, impairment income benefits, and supplemental benefits terminates on the expiration of 401 weeks after the date of the injury.

As always let me know if you have any questions.

Jones v. Food Lion

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Please join us for our firm’s holiday events (invitations attached):

Orlando:  12/08

Tampa: 12/15

Atlanta:  12/13

Hope to see you there. 

Sincerely,
Morgan Indek | Partner