An MKRS Law Analysis:

Westphal v. City of St. Petersburg, Part II


All right, the 104 week ‘cap’ is constitutional: now what?

Following our initial bulletin yesterday, here is “the rest of the story.”

What do we actually do now?  As a preview, there may be some “be careful what you wished for” in the new burdens that are now upon us.

  • Where an employee is still TTD as “legal” (but not actual/medical) MMI approaches: in the now much more important evaluation that is to occur six weeks before expiration of the 104 weeks (under section 440.15(3)(d)), it must first be determined what “permanent impairment” will exist at 104 weeks (with permanent impairment now redefined more broadly than just ‘PIR’);
    • If that ‘permanent impairment’ status is ‘total disability’ (regardless of whether it’s projected to last four more weeks, four years, or forever), we now resurrect the long buried (and counter intuitive) “temporary permanent total disability” (specifically mentioned in the dissent but not in the majority opinion).  That is what E/C must now pick up administratively, i.e., ‘PTD’ — subject to reclassification later — on attainment of either a capacity to return to available work, or “actual” MMI, whichever occurs first.  
  • Conceptually, we are taking a ‘snapshot’ of claimant at “legal” MMI (actually, that is when we must decide what to do after evaluating the picture actually snapped on the 98th week).
    • If claimant is projected to be and remain “disabled” from all available work on the 104th week, then that’s the “permanent impairment” — that is to say — PTD, until and unless something changes down the line, such as, claimant ceases to be disabled near or at actual, medical MMI – in which case E/C then administratively reclassifies to the newly established PIR (and Claimant says ‘thanks’ for the support — or maybe not).
  • Which brings us to the Claimant’s bar: E/C should not be hit with PFB’s aimed at locking in PTD when that is the administrative status at the time of filing.  Such PFB’s should be dismissed as premature until and unless administrative reclassification occurs.
    • But, if no administrative action is taken at the 104th week, even if payments continue (without being reclassified as permanent), then a PFB does become ripe under Westphal.

So, what is going on – or what went on here – and what’s next? 

  • First, the majority acknowledges: if there is any way to construe a statute as constitutional, that must be done ahead of striking it as unconstitutional, and the only way to do that here, the majority reasoned, was to reconsider their earlier cases (which in essence found the ‘gap’ to exist because, the court earlier concluded, there was no such thing as “temporary permanent total disability”).
    • The above exercise led the majority to conclude its earlier cases were erroneous, and that it was the legislature’s original intent that so-called “temporary permanent total disability” was the correct answer for the ‘still-disabled at 104 week’ claimant, and that a follow-up reconsideration of such claimant’s status – to be undertaken at ‘actual’/medical MMI — is the preferable, “correctable” situation — versus an ‘uncorrectable’ uncompensated “gap” in benefits like the one which resulted from their earlier but now-repudiated 104 week/MMI cases.  The majority belatedly salutes the wisdom of dissenting Judge Van Northwick, in the Matrix v. Hadley case, who warned the “patch created in Oswald leaves many disabled claimants stuck in the gap.”
  • BOTTOM LINE: going forward, E/C will have its hands full as the 98th week approaches in TTD cases!

But wait a second: what about the Supreme Court certification?   

  • The 1st DCA ‘certified the question’ to the Florida Supreme Court, but as signaled in our first bulletin, it is a different certification than in cases where the DCA has passed on the constitutionality of the act.  Rather, the DCA certified the question as ‘a matter of great public importance,’ and while the difference is not crucial, there is far less likelihood now that the Supreme Court will go back to the “unconstitutional” stage.  Instead, the Court will either ratify or repudiate the 1st DCA’s new construction of what to do at MMI.
    • BUT: there are some vicious dissents which might just get the attention of the Court.
  • BOTTOM LINE: like a bad outcome on Groundhog’s Day, we will experience several more months of “uncertainty.
    • However, even if the Supreme Court takes us back to where we were (and somehow also finds the ‘gap’ ‘constitutional’), we are only conditionally picking up these “temporary permanent total disability” cases, and will be just as empowered to back out of these decisions administratively later (though maybe not without a fight!).

But what about the 58 pages (!) of concurring and dissenting opinions?! 

  • We saved these for last because, meaning no disrespect to their honorable authors, they are in effect ‘least,’ for now.
    • However, they are particularly strong and even vicious; dissenters all but call the majority outlaws – – and they give the Supreme Court a lot to think about, particularly Judge Thomas. If the Supreme Court doesn’t act, the whole court must adhere to the majority opinion going forward.
    • If the Supreme Court does act, well, let’s just cross that bridge when we come to it.
  • Picking some highlights of these opinions for those interested; first, Judge Benton believes the majority’s’ new ruling does ‘more damage,’ so to speak, than did the earlier rule (under which Westphal was decided at the JCC level).  For instance, where a surgery near or soon after expiration of 104 weeks may make claimant better 6 to 8 weeks later, the majority opinion serves to effectively, improperly extend “TTD” past 104 weeks — at the expense of a great administrative burden (PTD, then un-PTD).
  • Judge Thomas believes the majority’s fix is a court made invention that steals power, unconstitutionally, from the executive branch (and if that message especially gets the ear of the Supreme Court, we will have problems).
    • Judge Thomas warned that in 1993, the legislature noted Florida PTD benefits were awarded at levels more than five times the national average, and that is what we may now be going back to, via the majority’s impermissible intermingling of the concepts of “impairment” and “disability” (hinted at in our note above).
    • He adds: the fact the legislature has reenacted the statute many times after the two leading cases were decided long ago signals its acceptance of the plan as previously construed.
    • Judge Thomas believes there will be more fights over benefits, not fewer, and that rates will increase in light of the new pressure on PTD.  He projects litigation will increase based first on employers becoming more aggressive trying to end TTD as the deadline approaches, and second; in litigation seeking to reclassify administrative ‘temporary’ PTD from claimants’ unwilling hands after they grow accustomed to it.
  • Judge Wetherell points out the court has never receded from an en banc opinion before (not to mention that in doing so, it has rejected 15 years’ worth of settled case law).
    • Judge Wetherell says it is unclear whether the majority elected to reinterpret the statute simply to avoid declaring the statute unconstitutional (this thought did occur to us), or whether it just had a few more votes needed in order to recede from the older Oswald opinion, which is an illicit process in his view.

 Further Thoughts And Suggestions:

1.    What About TPD Cases?

a.    Apart from pointing out there is no clear-cut, binding application of Westphal to TPD cases, this is a difficult call.

b.    Because there is no such thing as ‘PPD’ (permanent partial disability), there is no convenient status to accept ‘temporarily.’  Claimant is not “totally” disabled, so ‘temporary’ PTD does not seem right.  What to do?

c.    Our feeling at this moment is: the closer a ‘TPD’ claimant is to really being ‘TTD,’ based on severity of restrictions and unavailability of work (and full comp rate being paid without reduction), the more likely such claimant be considered now for administrative acceptance under so-called ‘TPTD’ (but actually called PTD while such designation is being paid).

 2.    Suggestions For The 98th Week:

The message cannot be more clear, and even the 98th week may be too late but it’s a good starting point for discussion.

a.    As the 104th week approaches, treating/examining physicians will chart the course going forward — but shall we leave it entirely up to them, given new complexities that even the legal branch can hardly understand?

b.    It would seem instead incumbent on Claims to take full advantage of the right to conference with the physician — and then put someone in the room with the doctor armed with more than good intentions and a formulaic understanding of the new benefit categories.  It is suggested the defense attorney, who may later depose the physician and defend the claim going forward, would be best suited — at least until this new order sorts itself out.

 3.      Psychiatric TTD at 104 weeks: Davis vs. NASCAR

Those who attended the Case Law Update at the recent WCEC heard mention of the then-pending Davis case, wherein MKRS Law was defending the constitutionality of the separate but similar ‘six months/104 weeks’ psychiatric temporary benefits statute (Section 440.093).  In so doing, we also attacked the Westphal decision, but — coincidentally or not — Claimant chose to settle that case about week ago. So, the opportunity to have the court address that statute at the same time is now over.

a.    Therefore, as a projection: if a qualifying Claimant remains “totally” psychiatrically disabled at 104 weeks, it may be prudent to classify that claimant too as “TPTD,”  so to speak.


MKRS will continue to keep its esteemed industry and claims clients abreast of developments, while continuing to defend their interests, just as it has been doing since 1958. 

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