By: Mary Frances Nelson, Partner, Fort Myers

Last month, Judge Spangler entered a Compensation Order in the case of Stuckey v. Hillsborough Area Regional Transit, OJCC Case No. 12-027186, denying payment of temporary partial disability benefits outside of the 104 weeks. This marks the first case that has had an order on this issue since the Supreme Court issued its opinion in Westphal v. City of St. Petersburg, SC13-1930; SC13-1976.

Briefly, Ms. Stuckey went to hearing in 2014, which resulted in an order by Judge Lorenzen awarding TPD until the claimant was at MMI, or 104 weeks had been paid, whichever came first. 104 weeks of benefits expired on February 6, 2016. The claimant was placed at MMI on May 17, 2016. A petition was filed, requesting payment of TPD benefits from February 6, 2016 through May 17, 2016. Judge Spangler heard the issue at a final hearing in September. He found that FS 440.15(4)(e) governs the benefits in question, and that TPD benefits should be limited to 104 weeks total.

In his Order, Judge Spangler found Westphal to be persuasive authority in his opinion, but did confirm that Westphal only addressed the extension of TTD benefits, as provided in FS 440.15(2)(a). Aside from that distinction, Judge Spangler also found that the claimant in the Stuckey case did have an earning capacity prior to MMI, and there was no indication that she should be eligible for PTD benefits following overall MMI. Because of these clear distinctions, Judge Spangler felt that there were enough differences in the cases to merit a denial of TPD benefits. He went on to question the ability of the Court to find a rational basis to change the TPD portion of the statute, when the variety of factors associated with an award of TPD seem to be more vague than a TTD status. Although he acknowledged that dating back to the 1993 statute, these two classes of benefits shared the same cap, he found that the current version of the statute maintains a 104 week cap on TPD benefits.

Since the Westphal decision was published, there have been questions about the applicability of the decision to the remainder of FS 440.15. Since TPD benefits were not at issue in the Westphal case, the holding was limited to the class of benefits being sought—TTD benefits. The order has been appealed to the First DCA, and can be found at 1D16-4526. As this case and others like it develops, we will provide updates. In the meantime, this is an area with enough questions that payment of TPD benefits after the expiration of 104 weeks, should be carefully considered by the carrier and counsel. Our firm will continue to be available to discuss these cases at any time.