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The Rise and “Phal” of the Workers’ Compensation System

The Rise and “Phal” of the Workers’ Compensation System- by: Diana I. Castrillon, Esq.

In February of 2013 a three-judge panel at the First District Court of Appeals in the case of Westphal v. City of St. Petersberg ruled that a portion of the Florida Workers Compensation statute was unconstitutional.  Specifically, the Court held:

“… that section 440.15(2)(a), Florida Statutes, is unconstitutional as applied,

to the extent that it limits entitlement to temporary total disability benefits

to 104 weeks, and we revive the repealed portion of the statute to allow for

entitlement temporary total disability benefits in an amount not to exceed

260 weeks.”

This was a monumental ruling in Florida where the words “unconstitutional” and “Worker’s Compensation” had not met in many, many years.

However, the powerful language of that original Westphal decision, would quickly be replaced with an en banc decision from a strongly divided First District Court of Appeals, in an 18-page majority opinion, followed by 58-pages worth of heated dissents. This en banc decision came out on September 23, 2013.   In the September ruling, the First DCA receded from the February 2013 opinion and reaffirmed the validity of the Florida Workers Compensation law.  The en banc decision further stated that the 104 week cap on Temporary Total Disability benefit is constitutionally sound – a complete contradiction to their earlier holding.

In reaching this sharply contrasting opinion, the Court even receded from an earlier en banc ruling in 2011 on the matter of Matrix Employee Leasing, Inc. v. Hadley, and ruled that, at the expiration of 104 weeks of Temporary Total Disability benefits, a claimant is eligible to receive Permanent Total Disability Benefits as a so-called “temporary PTD benefit.”

The original Westphal decision had such rich and powerful language, that it provided for summary challenges to the constitutionality of many aspects of the Florida Workers Compensation system.  Judge Wetherell, in his dissent to the original opinion, stated that the ruling “could have led to the incremental dismantling of the entire workers compensation system.”

However, despite the differing opinions, the en banc Court in Westphal did certify a question to the Florida Supreme Court as a “matter of great public importance.”   Specifically, they certified the following question:

“Is a workers who is totally disabled as a result of the work place 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?”

Based on this question, on October 8, 2013, the Claimant filed a notice to invoke the discretionary jurisdiction of the Supreme Court of Florida followed by the City of St. Petersburg filing a Cross Notice of Invoke Jurisdiction on October 21, 2013.   Thankfully, on December 9, 2013, the Supreme Court accepted jurisdiction and designated the case as “high profile.”      Technically, the question that was certified to the Supreme Court did not go to the constitutionality of the statute, however, the Supreme Court can still consider constitutional issues.   It is highly likely that the Claimant will argue against the constitutionality of the statute as applied in the hopes that the Court’s will give back some of the language that was lost from the initial panel decision in Westphal.  However, it is impossible to gauge whether the Supreme Court will give any consideration to the constitutional issues.  With oral arguments scheduled and briefs being submitted, Workers Compensation practitioners await action from the Supreme Court.


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