104 Week Cap of Temporary Total Disability Deemed Unconstitutional
On 2-28-13, the First District Court of Appeals (DCA) ruled Florida’s 104 week cap on temporary total disability benefits to be unconstitutional as a denial to courts and a denial of administration of justice without delay.
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Bradley Westphal, a firefighter and paramedic for the City of St. Petersburg injured his back and knee while working in 2009. Mr. Westphal had back surgery and incurred nerve damage in his leg. The claimant exhausted 104 weeks of temporary total disability before he reached a level of maximum medical improvement. As the claimant had not reached MMI after exhausting temporary total disability, he was not eligible for temporary partial disability (TPD) or permanent total disability (PTD). The City of St. Petersburg ceased temporary total disability payments.
Westphal applied for permanent total disability benefits but was denied by a work comp judge as he was not at maximum medical improvement and it was considered too speculative to award the claimant with PTD benefits. Nine months after the temporary total disability benefits had been exhausted, enough medical evidence was available for the claimant to be awarded permanent total disability. The employee then brought suit against the City of St. Petersburg and the State of Florida for temporary total disability benefits during the nine month statutory gap in disability benefits.
Question of Gap In Benefits Between Temporary Total Disability and Temporary Partial Disability
In a previous DCA case, Matrix Employee Leasing, Inc. vs. Hadley, the DCA had ruled there is a statutory gap in benefits between the expiration of 104 weeks of temporary total disability benefits and temporary partial disability benefits when the employee does not reached MMI after 104 weeks. The question of the constitutionality of the law was not raised in Hadley, so it was not addressed. Westphal’s attorney seeing the opening the Hadley decision had created, questioned the constitutionality of the 104 week limitation on temporary total disability benefits.
New Law Required 260 Weeks of Temporary Total Disability
The DCA when given the opportunity to review the constitutionality of the 104 weeks of temporary total disability benefits decided the statute could not stand as written. The DCA decision was based on workers’ compensation being the exclusive remedy for injured workers without giving the injured worker a system to redress for the economic damages incurred after the 104 weeks of temporary total disability are exhausted. By declaring the temporary total disability limitation as unconstitutional, the court revived the 1991 temporary total disability law requiring employers/insurers to pay 260 weeks of temporary total disability benefits.
In what was probably an oversight by the DCA, they did not address the constitutionality of temporary partial disability being limited to 104 weeks, only temporary total disability. The affect the temporary total disability decision will have on TPD is unknown at this time, but we would speculate an enterprising employee’s attorney will now definitely question the constitutionality of TPD being limited to 104 weeks and will achieve the same results as Westphal.
Fortunately, the DCA did rule that their decision applies to the Westphal case and future cases, but declined to make their decision retroactive to prior work comp claims that have become final. The DCA decision is final and binding. However, in Florida, whenever a District Court declares a statute to be unconstitutional, there is an automatic Supreme Court review. Unless, the Supreme Court overrules the DCA, all open and future claims will be governed by this DCA decision.
Employers Face Increase in Indemnity Exposure
Employers and insurers who have open temporary total disability claims where the employee now seeks to continue temporary total disability benefits beyond 104 weeks should have their defense attorney stay or continue any hearings on the issue until the Supreme Court rules.
The major immediate impact of the DCA decision is the increase in indemnity exposure to employers and insurers. This will increase settlement value of all open temporary total disability claims as the plaintiff attorneys will know the employer/insurer has much more to lose if they do not settle with the injured employee. A secondary impact is the impetus it will provide to seriously injured employees in Florida to malinger.
Author Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.
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