Supreme Court Decides Westphal
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SUPREME COURT DECIDES WESTPHAL
104 WEEK CAP ON TEMPORARY DISABILITY BENEFITS IS UNCONSTITUTIONAL
The Supreme Court of Florida issued an opinion in the case of Bradley Westphal v. City of St. Petersburg, et al, No. SC 13-1976 (Fla. June 9, 2016), and held that Florida Statute §440.15(2)(a), as amended in 2009, is unconstitutional as a denial of the right of access to courts, because it deprives an injured worker of disability benefits for an indefinite amount of time – thereby creating a system of redress that no longer functions as a reasonable alternative to court litigation.
The Supreme Court of Florida accepted jurisdiction to evaluate and determine the constitutionality of F.S. §440.15(2)(a)(2009) which limits temporary disability benefits to an injured worker who is not eligible for permanent total disability benefits, to a period of 104 weeks. The Supreme Court issued a 46-page opinion, including very interesting concurring and dissenting opinions, setting forth a brief history of changes to Florida Workers’ Compensation Law since 1968.
The Supreme Court recited the legislative intent of the workers’ compensation law to “assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful employment at a reasonable cost to the employer.” The Court found that F.S. §440.15(2)(a) (2009) operates in the opposite manner and cuts off a severely injured worker from disability benefits at a critical time, when the worker cannot return to work, is totally disabled, and when the doctors, chosen by the employer, deem the worker may still continue to medically improve.
The Supreme Court held that when applied to these circumstances, the workers’ compensation law fails to provide “full medical care and wage-loss payment for total or partial disability regardless of fault” and does not function as a reasonable alternative to tort litigation.
The Court ruled that the limitation in the workers’ compensation law preceding the 1994 amendments to F.S. §440.15(2)(a) is now revived, which provides for temporary total disability benefits not to exceed 260 weeks – five years of eligibility rather than only two years, a limitation previously determined to pass constitutional muster.
Although the Supreme Court has rejected constitutional challenges to the workers’ compensation law in the past, the Court noted precedent clearly established that when confronted with a constitutional challenge based on access to courts, the Supreme Court must determine whether the law “remains a reasonable alternative to tort litigation.” The Court held that the “reasonable alternative” test is then the lynch pin and measuring stick, and that there must eventually come a “tipping point”, where the diminution of benefits becomes so significant as to constitute a denial of benefits – thus creating a constitutional violation.
The Supreme Court compared the current rights of a worker such as Westphal, to the rights of those workers injured in 1968 and described the extent of changes over time in the workers’ compensation system as “dramatic”. The Court noted that since 1968, the Legislature reduced the provision of disability benefits and gave employers and insurance carriers the virtually unfettered right to select treating physicians in workers’ compensation cases. Further, the Court noted that the right of the employee and the employer to “opt-out” of the workers’ compensation law and preserve their tort remedies was repealed. Additionally, the Court noted a heightened standard that the compensable injury be the “major contributing cause” of a worker’s disability and need for treatment, and the requirement that the injured worker pay a medical copayment after reaching maximum medical improvement. The Court also noted the current law allows for apportionment of all medical costs based on a pre-existing condition, significantly reducing the benefits to which many injured workers are entitled.
The Supreme Court decision included a concurring opinion from Justice Lewis, who wrote as follows; “In lieu of continuing to uphold the Workers’ Compensation law with rewrites, judicial patches, and flawed analyses, Chapter 440 should be invalidated where defective and the Legislature required to provide a valid, comprehensive program.”
On the other hand, Justice Canady wrote a dissenting opinion arguing that the statutory limitation on the period of eligibility for temporary total disability benefits does not violate the right of access to courts and noted that today’s workers’ compensation system allowed Westphal substantially greater temporary total disability benefits than any 1968 statutory right provided, and that the amendment limiting temporary total disability benefits to 104 weeks did not “abolish” any pre-existing right. Justice Canady pointed out that Westphal does not dispute the State’s assertion that the aggregate compensation paid to him for temporary total disability benefits substantially exceeded the aggregate compensation for such benefits that would have been available under the pre-1968 law, even when pre-1968 benefits are adjusted for inflation. Further, Justice Canady stated he was inclined to agree that substantial evidence does not support the determination of the Judge of Compensation Claims that Westphal did not establish that he would meet the requirement for permanent total disability when he reached maximum medical improvement.
PRACTICE TIPS:
I believe this decision will apply to both temporary total disability and temporary partial disability benefits under Florida Statute §440.15.
Carriers should review all cases where the claimant was previously placed at statutory MMI for a determination of whether overall MMI has been reached.
Due to the complexity of many of these cases from both a medical and legal standpoint, I recommend discussion with defense counsel regarding the appropriate classification of benefits. Each of these cases should be considered on an individual basis.