AN MKRS SPECIAL BULLETIN
Westphal v. City of St. Petersburg and State of Florida
Florida’s first District Court of Appeal has struck the 104 week limitation on temporary indemnity benefits as an unconstitutionally inadequate remedy.
Until a legislative solution is found, the court has installed the 260 week limit, which was in effect before 1994, thus more than doubling present exposure to temporary indemnity: TTD/TPD.
MKRS will study the opinion carefully in the days to come and report further. In the meantime; HERE IS WHAT WE KNOW NOW:
- This opinion affects all presently open and outstanding claims:
- It does not apply to already-adjudicated and/or settled claims.
- The court has ruled the rest of the statute can remain intact
BRADLEY WESTPHAL V. CITY OF ST. PETERSBURG/ CITY OF ST. PETERSBURG RISK MANAGEMENT & STATE OF FLORIDA: Fla 1st DCA 2/28/13
UPDATE # 2
Upon discussions within the firm, questions received by esteemed clients — and rumors in circulation — MKRS offers the following Q and A in follow-up to our initial bulletin yesterday.
A. That is absolutely correct: the actual “holding” is limited to TTD.
However, following analysis and discussion it is our conclusion that while an argument can be made to show the precise circumstances and dire straits affecting this particular individual can only occur in the TTD setting (and remember, bad cases still make bad law: this one did); we note:
- There are several substantive similarities between the two situations. Consider an individual returned to work at 50% of former earnings who is still on TPD after 104 weeks presents a similar plight albeit with a better financial situation (50% of AWW versus Westphal’s zero); or, a construction worker with a 5 pound lifting restriction is released to light or sedentary duty who cannot find work after the hundred fourth week: we believe a case challenging that outcome will meet the same fate.
- There is sufficiently provocative language in the opinion, with its foundation in “natural justice” and its having employed such words as “repugnant,” and like, in the TTD setting, that we deduce it would be futile to “defend,” in the “next case,” the 104 week TPD limitation in the belief it will be stricken for the same infirmities.
- We look to a 1989 Supreme Court decision striking the disparity in the $1000 death benefit as between dependents outside the country versus the 50k for those within: it happened that the legislature raised the amount to $50,000 – and residents to $100,000 during the pendency of the appeal, but narrowing the gap did not “cure” the constitutional infirmity: rather, the fact there was any disparity rendered it unconstitutional. While not directly applicable, borrowing such thinking leads us to the conclusion TPD will suffer a similar fate if challenged.
Bottom line: as an aggressive tactical option, an E/C may still assert that the strictly literal holding in Westphal does not impact a TPD case that has gone beyond the 104 weeks (or even TTD, until Westphal is absolutely final, discussed below). Moreover, a claimant’s appeal from an adverse ruling can in most cases be avoided or stopped midstream by an E/C’s decision to make full payment of the amount in controversy even though the E/C has won at trial.However, if challenged all the way, we anticipate the TPD limitation will also fall.
Q. When does this decision actually become effective?
A. It depends, literally!
Because the District Court struck a state statute as unconstitutional,stay is automatic, pending Supreme Court review. Our bulletin #1 was not clear in this particular respect: in most instances the District Court would have indicated ‘concern’ over constitutionality, but then certify the decision to the Supreme Court. That did not happen here: on its face the opinion is final and binding – – until and unless the Supreme Court quashes the order of the District Court – – but it’s actual and immediate governing effect will be stayed until the Supreme Court decides one way or the other.
Bottom line: It would be wise to move to continue any impacted, pending matter or even pretrial stip until the Supreme Court outcome. There should not be much objection or judicial resistance to this, even though claimants will be chomping at the bit to go forward.
Q. Are there other events that may impact finality:
A. Yes, but….
Motion for Rehearing en banc: we were surprised the Court did not decide the case en banc on its own motion, and ordinarily, the employer/state would file a motion for full determination by all 15 judges of the 1st DCA rather than leave such an important question to only the three. If the full Court then decided to hear it, it might change the outcome if enough judges disagreed strongly enough, in sufficient number to overturn the result (there were three dissenting justices even in the notorious Aguilera case, out of seven!).
HOWEVER: given the enormous significance of the case and its guaranteed appearance before the Supreme Court, the employer and the state may just forgo this interim step and put the matter in the Supreme Court’s hands sooner rather than later. That is our projection.
At this point, however, we have no reasonable basis upon which to project the Supreme Court’s handling of the TTD issue in Westphal except to say, in the light of the 2008 Murray decision, odds slightly favor affirmance of the DCA decision.
Q. Are other elements of the law now in jeopardy?
A. We believe the answer might be: yes.
There is no direct cause and effect but for instance, the recent ‘cost’ decision in Frederick v. Monroe County Sch. Bd., 99 So.3d 983 (Fla. 1st DCA 2012) is presently before the Supreme Court: Claimant, following advice of an authorized treating physician, filed a PFB for shoulder surgery; E/C denied and obtained an IME opposing surgery, an event followed by an EMA who supported E/C’s IME — leading Claimant to voluntarily dismiss the case, which would seem to track the statutory purpose for an EMA, i.e., cut down on litigation. Nevertheless, E/C pressed and Claimant was hit with over $11,000 in costs. There is no clear indication the court will take the case all the way but the current cost structure of the act is, we believe, vulnerable.
There are also believed to be as many as three other cases before the District Court entailing challenges to other perceived weaknesses in the law, such as Claimant-paid IME/EMA and MCC/apportionment. Because we do not have sufficient additional information at this time, apart from this heads-up, there is little point in reporting further until and unless actual opinions emerge.
WHAT HAS HAPPENED: The 1st DCA has granted a Motion for Re-Hearing en banc!
WHAT THIS MEANS: The Westphal opinion, striking the 104 week cap on TTD as unconstitutional, was issued by a DCA panel of 3 judges (most cases are), but in exceptional matters the Court may rehear a matter en banc, which means all 15 judges.
WHAT’S NEXT: The full Court may either vote to keep the opinion in Westphal as it is via a majority (8 judges or more); modify it or vacate, in which case we will be back to 104 weeks – – except for one more thing: the Florida Supreme Court will undoubtedly get the case for final disposition.
ANALYSIS: Given the Florida Supreme Court will have the final say, it is slightly less important now how the full DCA votes, although striking the law will gain the “mandatory” attention of the Court whereas an opinion affirming validity of the statute, a more common event, will not, but this one will have a history still likely get the Court’s attention.
SO: The striking of the 104 TTD cap is not final. For now, pending matters relating one way or the other to a 104 week cap (including TPD and “mental/injury” claims under section 440.093) will probably be (or should be pushed to be) suspended at the trial and appellate level until the Supreme Court acts.
YOU MAY ALSO BE INTERESTED IN KNOWING: MKRS is presently defending a challenge to the constitutionality of the six month/104 week cap on psychiatric claims under §440.093 and has moved to consolidate that appellate matter with Westphal for joint determination.
As always, our attorneys are available to assist with any question, concern or need regarding this or any other matter. As a final note, coincidentally, this topic has already been made a focus of presentations at the upcoming Workers Compensation Convention through both George Kagan’s NWCR Panel and Robert Rodriguez’s Mock Trial presentation, which will feature the judge who presided over the trial of the matter at issue, the Honorable Stephen L. Rosen!
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