By: Mike Quiggins, Partner, Tallahassee

Earlier this year, the Florida Supreme Court issued its long awaited decision in Westphal that found Section 440.15 to be unconstitutional, and revived the pre-1994 law allowing for up to 260 weeks of temporary total disability benefits.  Since the Westphal decision, the workers’ compensation industry has debated whether the Supreme Court opinion also encompassed the separate category of temporary partial disability benefits. Last month, we highlighted a JCC decision that specifically ruled on TPD entitlement, finding that Westphal was not applicable to TPD benefits. The First DCA decided, however, to give us the answer in Jones v. Food Lion, Case No. 1D15-3488, in which the Court held that the Westphal decision applies to both temporary total and temporary partial disability benefits.

In Jones, the claimant filed a petition for PTD benefits, even though it was stipulated that the claimant was not at overall MMI as of the date of the hearing. The claimant was temporarily partially disabled, but had exhausted 104 weeks of benefits. The claimant argued that his claim was ripe, as he was at MMI based on the ruling in Westphal I; however, the JCC declined to follow that argument, as the Westphal I opinion was limited to temporary total disability benefits, and found the claim for PTD was not ripe at the time of the merits hearing. The First DCA affirmed the JCC’s ruling; however, it did so using Westphal II, which found that temporary benefits were extended to 260 weeks. The First DCA, in Jones, found that the Supreme Court’s reasoning extended the protection to 260 weeks for all temporary benefits. The Court found that since the claimant was partially disabled, he was entitled to up to 260 weeks of benefits, so the claim for PTD was not ripe. The First DCA made it clear that it was not ruling on the applicability of the other elements of FS 440.15(4)(1991).

 Based on this case, the injured worker in Jones and other similarly situated injured workers can receive up to 260 weeks of TPD benefits.  This outcome is not all that surprising as many of us felt that the 104 week cap would not apply to TPD given the Supreme Court’s reasoning in Westphal. As in Jones and Westphal, the 104 week statutory cap caused a “gap period” where the claimant was not entitled to receive temporary compensation nor could he/she file a claim for PTD because overall MMI had not been reached.  As most of us know, a claim for PTD is premature prior to the date of maximum medical improvement. See, Hernandez v. Geo Grp., 46 So.3d 1123 (Fla.1^st DCA 2010).

From a practical perspective, how many claims do you have where the claimant actually exhausts 104 weeks of temporary benefits? Probably a very small percentage of your claims, right? Now, think about the number of claimants that will actually exhaust 260 weeks.   I believe the Westphal and Jones opinions will actually provide carriers with additional time for a claimant to achieve a better physical outcome, especially when an injured worker has had a delay in consistent treatment due to legal and medical disputes early on in the claim or, in the cases of severe accidents, where a claimant is continuing to recover from multiple surgeries.  I believe these cases will allow carriers additional time to assess whether a claimant is PTD and make a decision as to whether to provide PTD benefits administratively as opposed to engaging in prolonged litigation, resulting in exposure to large attorney’s fees based on present value of PTD benefits.

Temporary partial disability benefits will likely continue to be a major focus in litigation in the foreseeable future. In Jones, the DCA declined ruling on the applicability of the other 1991 elements for TPD benefits. If you recall, the 1991 version of the statute required job searches, and the burden was on the claimant to prove the loss of earnings was related to work restrictions, and not because of economic conditions, lack of employment, or misconduct. Further, the 1991 statute provided for 260 weeks of TPD benefits. Not until 1994 was the number of weeks combined for temporary benefits. These are points to consider in making a determination for payment of temporary partial disability benefits in these rare cases.

In the meantime, the exposure for temporary partial disability benefits can be limited by effective claims handling. Encourage employers to offer suitable employment within the worker’s restrictions.   Require employers to accurately complete 13 week wage statements and furnish supporting wage documents to the carrier so that the AWW can be determined to avoid underpayments in temporary benefits.  Make sure to provide earnings reports to claimants who are receiving disability benefits. Follow up to ensure completion, and make certain any collateral earnings are offset.

As always, we will continue to monitor the court’s rulings in these cases. If you have questions regarding a specific fact pattern, please feel free to contact our attorneys.