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A Constitutional Attack On Florida's 104 Week Cap For TTD

March 01, 2013 BY John Blackmon

        On February 28, 2013, the District Court of Appeal of Florida, First District, ruled that the 104 week limit on temporary total disability benefits under the Florida Workers’ Compensation Act, section 440.15(2)(a), was unconstitutional.  The underlying claim was brought by a firefighter and paramedic who had injured his back and knee while working for the City of St. Petersburg.  Westphal v. City of St. Petersburg, No. 1D12-3563 (2/28/13).  While recovering from surgery, and while still totally disabled, Westphal’s entitlement to temporary total disability benefits expired when he reached the 104 week cap.  Though incapable of working or obtaining employment, at least according to the court, Westphal was not entitled to permanent disability under Florida law because he had yet to reach maximum medical improvement.  Id.  As such, Westphal fell within what the court  described as a “statutory gap.”  Id.  He was disabled because of his work injury with no entitlement to lost time benefits, a situation Westphal contended was unconstitutional. 

            In its opinion, the appellate court initially framed the issue as follows:

[W]here the right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law State pursuant to Fla. Stat. s. 2.01, F.S.A., the Legislature is without power to abolish such right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

Id. (citing Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973)).  The court then turned its attention to the remedies that would have been available to a similarly injured worker in 1968, which was when Florida adopted the right of access to the courts and timely administration of justice.  Id.

            After discussing the fact that Florida’s Act gave Westphal’s employer certain rights, specifically the ability to select the treating physicians and confer with them, noting that Westphal was required to cooperate thereby giving up his inherent right to select medical providers and make “unfettered decisions about his medical care,” the court ruled that he was deprived of his “substantial common law and statutory remedies.” According to the court, his inability to obtain indemnity benefits beyond 104 weeks did not “comport with any legal or natural notion of justice.”  Id.  Westphal was in a situation in which he was forced to wait until the physicians chosen by his employer were of the opinion that he had reached maximum medical improvement to make a determination as to whether he might be entitled to additional indemnity benefits under the permanent total code section, with no guarantee this would ever come.  Id.  At this point, the court then focused on what was the heart of the problem – the 104 week period.  Discussing the fact that other states had significantly longer periods of entitlement, including Georgia, the court found that the 104-week limitation violated Florida’s constitutional guarantee that justice would be “administered without denial or delay.”  Id.  It went on to justify its holding by pointing to the fact that since 2003, workers’ compensation insurance premiums in Florida had declined 56%.  No doubt this decline was due, at least in part, to the legislative change allowing for a maximum of 104 weeks of indemnity exposure for employers and insurers. 

            There is no question that Westphal was between a proverbial rock and hard place.  Under Georgia law that might have been remedied by payment of PPD under O.C.G.A § 34-9-263, which also requires that the employee has reached MMI.  The problem with the decision, however, is that any cap or limit on indemnity benefits has the same potential, which the appellate court described as one of “economic ruination of the injured worker, with all the terrible consequences that this portends for the worker and his or her family.”  Id.  What the court essentially did was to look at the laws of other states that had longer entitlement periods, ultimately finding that because Florida’s was significantly shorter, it was unconstitutional on the grounds discussed above.  Basically  stated, the court legislated.

            It was in 1992 that Georgia capped TTD and TPD benefits at 350/400 weeks for non-catastrophic claims.  O.C.G.A. §§  34-9-261 and 262.  Thus far, these caps have not been challenged on a constitutional basis, at least in a reported decision.  Under Georgia law, “a statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.”  City of Macon v. Benson, 175 Ga. 502 (1932).  The courts may not like a particular statute, but should defer, if at all possible, to the will of the legislature.  

            Westphal is likely headed to the Florida Supreme Court for final determination.  It goes without saying that any cap or limit on indemnity benefits has the potential to harm an injured worker and his or her family.  The issue is where the line should be drawn.  Is it 104 weeks, 350/400 weeks, 450 weeks (Mississippi), 500 weeks (North Carolina) or no cap at all?  Whatever it is, it should be done by the legislature, not the appellate courts and it will be interesting to see what the Florida Supreme Court has to say about the matter. 

The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved. 

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H. Michael Bagley