November 03, 2013 BY John Blackmon
Update on the Constitutional Attack On Florida's 104 Week CAP on TTD
In March of this year (Volume 25, No. 146), we reported on a decision from the First District of the Florida Court of Appeal, which held the 104 week cap on TTD was unconstitutional on the grounds that it denied right of access to courts. Westphal v. City of St. Petersburg, No. 1D12-3563 (2/28/13). Westphal, a firefighter, had reached the limit on entitlement to TTD, yet remained totally disabled. He was prevented from filing for permanent disability because the judge in his workers’ compensation claim found that he had not reached “maximum medical improvement,” a condition precedent. The court, which obviously was sympathetic to Westphal’s predicament, found that he had been deprived of his “substantial common law and statutory remedies.” In rendering its decision, the court also discussed the fact that other jurisdictions had longer periods of entitlement and that since 2003, workers’ compensation insurance premiums in Florida had declined 56%.
We predicted that the case might be headed to the Florida Supreme Court for review. It did not, but in September of this year the court of appeal receded from its prior decision and entered a new one. 122 So.3d 440 (2013). The court backed off from its previous holding but still gave Westphal the relief he sought. Instead of finding the limit unconstitutional, the court resolved the matter based on an interpretation of Florida Statute 440.15, holding that an injured worker who was still disabled at the end of his eligibility for TTD is deemed to be at maximum medical improvement as a matter of law, even if the individual might make a sufficient recovery in the future to return to work. In such case, the injured worker would not need to present medical proof that he or she had reached MMI before filing a claim for permanent disability. In reaching its decision, the court noted:
The existence of a gap in benefits would also promote a disparity in the way that disabled workers were treated. A disabled worker who reaches maximum medical improvement relatively quickly is fully compensated. But a disabled worker who is told that he or she may be well enough to return to work someday may have no compensation at all beyond the initial 104-week period. We do not believe that the Legislature intended to create such a disparity. It is reasonable to conclude that the Legislature meant to ensure the ‘prompt delivery of benefits’ to all workers who are injured on the job, not just some of them.
Our conclusion that a disabled worker is entitled to receive disability benefits continuously route the course of his or her disability is also consistent with the overall statutory scheme. Section 440.15(1)(d) authorizes an employer to discontinue the payment of disability benefits to a worker who has regained earning capacity through rehabilitation. Thus, the status of maximum medical improvement is not truly permanent. When an employee is deemed to be at maximum medical improvement by operation of law, the employer is not stuck with that determination forever. The worker’s status and eligibility for benefits can change with the circumstances.
Id. at 446-447.
The court’s decision to avoid striking the statute on constitutional grounds and instead find a solution based on statutory construction/interpretation was a wise one. In the original decision, it was obvious that the court was of the opinion that Florida’s 104 week limit was too short and that perhaps employers had been given a break in their insurance premiums at the expense of injured workers. However, that limit, like all limits or caps, is one that should be set by the legislature, not the courts. This said, there is no doubt that individuals like Westphal were in a bad situation. They were totally disabled and without any income benefits yet denied from filing for permanent disability because they supposedly had not reached maximum medical improvement. The court remedied this by finding that if they were still disabled at the end of their eligibility for TTD, they were at MMI as a matter of law.
There will always be arguments going both ways about limits on entitlement to weekly benefits. In comparing our limits to those in Florida, Georgia workers fare much better. Assuming ongoing payment of weekly indemnity benefits, they have a period of up to 350/400 weeks (6.7 to 7.6 years) to file for lifetime disability via a catastrophic designation under O.C.G.A. § 34-9-200.1. Though there is a potential gap after reaching the cap, it is ameliorated somewhat by payment of PPD pursuant to O.C.G.A. § 34-9-263. However, in most cases it is fairly clear well before the 350/400 week cap whether an individual’s injury is catastrophic, and there is no requirement that a Georgia employee show that he or she has reached MMI before filing for the designation. And the court’s statement in Westphal that an employer is not stuck with that determination forever is accurate under Georgia law as well. Status and eligibility for benefits can change with the circumstances. A catastrophic designation is not written in stone and can be removed if circumstances warrant.
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.
H. Michael Bagley