The First District Court of Appeals has flip-flopped and has retracted from their previous ruling in Westphal v. City of St. Petersburg. If you recall, we published an article a few months ago indicating that the Court held that the Florida Workers Compensation law limiting temporary total benefits to 104-week limitation was unconstitutional as applied.
The court stated that this 104-week limitation unjustly left an injured worker in precarious position during the so-called “statutory gap period (the statutory gap period refers to the period between the expiration of 104-weeks of lost wage benefits and maximum medical improvement), in that the worker did not qualify for Permanent total disability, because he/she hadn’t reached MMI yet. Fast forward to September 23, 2013, the First DCA issued a ruling opening that the 104 week limit on temporary total disability benefits is not unconstitutional. Further, the Court completely throughout any/all mention of Constitutionality, and came up with its own analysis concerning the statutory gap period and Maximum Medical Improvement eligibility.
The First DCA effectively ruled the same without extending TTD benefits. the analysis The Court opined that the 104-week limitation is a legal test, to determine an injured workers’ eligibility for permanent benefits. Judge Padovano, writing for the majority, notes that the law requires a physician to evaluate an injured worker and assign an impairment rating six weeks before the expiration of TTD benefits (104 weeks). This ensures that the injured worker is not stuck in the statutory gap period. If that permanent impairment status is total disability, the court says that temporary permanent total disability benefits will be paid. However, this snapshot into the Claimant’s status will occur at week 98, six weeks before the 104-week limit has expired. If Claimant is projected to be and remains disabled from all available work on the 104th claimant is classified as PTD. The court wished to ensure that the injured workers stuck in the gap were provided for. Thus, the court suggested that a follow-up reconsideration of an injured worker’s status at medical MMI was preferable to not providing for these injured workers. However, the 1st DCA certified this “newfound determination” as a question of great public importance for the Supreme Court to answer.
It Seems as if the 1st DCA reversed course in fear of setting a new precedent. The opinion rendered by Judge Thomas is said to have been one of the greatest challenges to workers compensation since a 1993 re-write of the statute. The initial opinion would have awarded up to 260 weeks of temporary lost wage benefits to injured workers. The 1st DCA distanced itself as far away as possible from the same constitutionality opinion it rendered a few months back. The Court ran scared from the possibility of setting a FAIR precedent that actually favored injured workers. Once again, the 1st Supreme Court to resolve their muddled differences of opinion. The next step is for the Supreme Court to accept jurisdiction and answer the following question:
Is a worker who is totally disabled as a result of a workplace accident, but still improving from a medical standpoint at the time temporary total disability benefits expire, deemed to be at maximum medical improvement by operation of law and therefore, eligible to assert a claim for permanent and total disability benefits?
Please view the Full Opinion at https://opinions.1dca.org/written/opinions2013/09-_UPDATE:WESTPHAL REVISITED23-2013/12-3563.pdf