TTD @ 104 WEEKS – CLAIMANT DEEMED TO BE AT STATUTORY
MMI & ELIGIBLE TO FILE FOR PTD
440.15, Fla. Stat:
(2) TEMPORARY TOTAL DISABILITY.- …….. in case of disability total in character but temporary in quality, 66 2/3 percent of the average weekly wages shall be paid to the employee during the continuance thereof, not to exceed 104 weeks except as provided in this subsection, s. 440.12(1), and s. 440.14(3). Once the employee reaches the maximum number of weeks allowed, or the employee reaches the date of maximum medical improvement, whichever occurs earlier, temporary disability benefits shall cease and the injured worker’s permanent impairment shall be determined.
PENSACOLA FIREFIGHTERS V. OSWALD:
City of Pensacola Firefighters v. Oswald, 710 So.2d 95, 98 (Fla. 1st DCA 1998). The claimant in that case was nearing the end of his eligibility for temporary benefits but he had not reached maximum medical improvement. The District Court of Appeals held that “an employee whose temporary benefits have run out-or are expected to do so imminently-must be able to show not only total disability upon the cessation of temporary benefits but also that total disability will ‘be existing after the date of maximum medical improvement.’ ” Oswald, 710 So.2d at 98. (quoting § 440.02(19), Fla. Stat. (Supp.1994)). The underlying principle was described in the opinion as a “narrow but necessary exception” to the longstanding rule that permanent total disability benefits are not awardable before the claimant has reached maximum medical improvement. Oswald, 710 So.2d at 96-98. Because the claimant in Oswald was not able to show that he would be totally disabled after he reached maximum medical improvement, the court held that he was not yet entitled to assert his claim.
MATRIX V. HADLEY:
The court adhered to the rule in Oswald in a number of panel decisions and in the en banc decision in Matrix Leasing, Inc. v. Hadley. The court in Hadley acknowledged that the applicable statutes may create a gap in disability benefits for those injured workers who are totally disabled on the expiration of temporary disability benefits, but fail to prove prospectively that total disability will exist after the date of maximum medical improvement. Nevertheless, the court concluded that it could not interpret the statute to avoid the gap. Mr. Hadley had exhausted his 104 weeks of temporary total disability benefits but he needed to undergo several additional surgical procedures and he was not yet at maximum medical improvement. Applying the rule in Oswald, the court concluded that he was not entitled to apply for permanent total disability benefits until such time as he could offer medical proof that he was at maximum medical improvement or that he would be totally disabled once he reached maximum medical improvement.
WESTPHAL V CITY OF ST PETERSBURG:
A. Judge Padovano
Westphal v. City of St. Petersburg, 714 So.3d 436 (Fla. 1st DCA 2013). Holding: On rehearing en banc, the District Court of Appeal, Padovano, J., held that a worker who remains totally disabled at the end of eligibility for temporary total disability benefits is deemed to be at maximum medical improvement as a matter of law and may immediately assert a claim for permanent total disability benefits, receding from Matrix Employee Leasing, Inc. v. Hadley, 78 So.3d 621, and abrogating City of Pensacola Firefighters v. Oswald, 710 So.2d 95.
What does Westphal mean?
Does not extend benefits beyond 104 weeks. Merely enables a claimant to file a claim for PTD.
104 week limitation is a deadline on the issue of MMI only.
104 week limit does not terminate the claimant’s right to compensation – just the classification of benefits.
Claimant should not have to wait months with no benefits before being able to file for PTD.
When claimant is deemed to be at MMI by operation of law, the employer is not stuck with that determination forever. The work status and eligibility for benefits can change with the circumstances.
Why the Court receded from Oswald and Hadley:
The Court did not want to find the statute to be unconstitutional. “Slippery slope.”
Oswald did not “work out” the way the Court thought it would. The Court attempt to expand benefit to Claimant’s in Oswald to ensure the continuous flow of benefits. However the rule in Oswald / Hadley was used almost exclusively as authority to deny benefits.
Question Certified to the Florida Supreme Court:
Is a worker who is totally disabled as a result of a workplace accident, but still improving from a medical standpoint at the time temporary total disability benefits expire, deemed to be at maximum medical improvement by operation of law and therefore eligible to assert a claim for permanent and total disability benefits?
Practically what does Westphal mean?
1. If a claimant is TTD at the expiration of 104 weeks the employer/carrier should consider:
a. Payment of TTD beyond 104 weeks
Attempt to thwart the filing of a PTD claim
Loss in supplemental benefits only
b. Voluntary acceptance of the claimant as PTD vs JCC determination
Cease PTD once medical and vocational evidence establishes the claimant’s employability
Vs. Petition for Modification.
Question remaining:
Is a worker who is totally PARTIALLY disabled as a result of a workplace accident, but still improving from a medical standpoint at the time temporary total disability benefits expire, deemed to be at maximum medical improvement by operation of law and therefore eligible to assert a claim for permanent and total disability benefits?
B. CONCURRING: Justice Wolf with Justice Lewis joining:
Agrees with holding but does not Supreme Court to revisit Hadley. Why?
Does not want Court to address constitutionality of the statute. Why?
Holding will “allow a claimant with a legitimate permanent disability to receive needed benefits.”
C. CONCURRING in RESULT: Justice Benton with Justice Ray joining:
“The real effect of this new rule will be felt in cases in which no gap in benefits can be proven. Consider the case where the claimant is totally disabled at the end of 104 weeks because of surgery necessitated by an industrial accident but sure to be right as rain after six weeks’ convalescence. In such a case, the new rule is an end run around the two-year limit on temporary benefits. See §§ 440.15(2)(a), 4(e), Fla. Stat. (2009); FN4Okeechobee Health Care v. Collins, 726 So.2d 775, 776 (Fla. 1st DCA 1998) (holding temporary benefits cannot be paid for more than 104 weeks). This is brazen defiance of a clear statutory directive”.
D. **** CONCURRING in result with DISSENT in part: Justice Thomas:
Claimant entitled to PFB under current law in Oswald & Hadley; JCC should not have rejected the Claimant IME testimony. Authorized physician testimony was confusing and irreconcilable. Claimant via his IME proved disability once “true” MMI is obtained.
**** However see Justice Wetherell dissent: Did Justice Thomas “reweigh the evidence”?
I vigorously dissent, however, from the majority’s opinion, which in my view violates Florida’s “strict” separation of powers provision in article II, section three of the Florida Constitution. Fla. House of Representatives v. Expedia, Inc., 85 So.3d 517 (Fla. 1st DCA 2012). The majority opinion enacts new substantive law that creates a legal entitlement to permanent total disability benefits at the expiration of temporary total disability benefits, regardless of whether the claimant will remain totally disabled when reaching maximum medical improvement.
So why remand the case for any purpose other than to enter judgment in favor of Mr. Westphal? Under the majority’s new version of the statute, there is nothing left for Mr. Westphal to prove, as the majority opinion declares that “an injured worker who is still totally disabled at the end of his or her eligibility for temporary disability benefits is deemed to be at maximum medical improvement as a matter of law, even if the worker may get well enough someday to return to work….
In my view, rather than defer to the proper branch of government, the majority opinion rewrites a statute.
The legislature has defined MMI as follows: ” ‘Date of maximum medical improvement’ means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.”§ 440.02(10), Fla. Stat. (emphasis added). We have no constitutional authority to evade this unambiguous definition, as recognized by our supreme court in State v. Egan:
Interestingly, only one state has defined maximum medical improvement in the terms enacted by the majority opinion. In Texas, by statute, a claimant is deemed to have reached maximum medical improvement when the claimant’s temporary disability benefits expire. Texas Labor Code sections 401.11(30)(a) and (b) (2009) define maximum medical improvement, in part, as “the earliest date after which … further improvement to an injury can no longer be reasonably anticipated” OR “the expiration of 104 weeks from the date on which income benefits begin to accrue,” whichever is earlier. FN8 No other state so defines the term maximum medical improvement, either by statute or judicial opinion. But the majority opinion declares that henceforth maximum medical improvement shall not mean what the legislature says it means, but it shall mean what the majority opinion thinks the statute should say, that is, when the disabled claimant’s temporary indemnity benefits have expired. Thus, the majority opinion engrafts Texas statutory law onto Florida’s statute, in abrogation of legislative power.
E. DISSENT: Justice Wetherell and Justice Roberts and Rowe joining: Claimant NOT entitled to PFB under current law in Oswald & Hadley;
Stare decisis
Here, there is no compelling reason to recede from the rule announced in Oswald. Nothing except the composition of the court and the minds of several judges has changed since Hadley when this court, sitting en banc, reaffirmed Oswald and expressly rejected the precise interpretation of section 440.15 that the majority opinion now embraces.
What will the Florida Supreme Court do?
Accepted jurisdiction on 10/8/13
10/21/13 City of St. Petersburg filed a Cross Notice of Appeal
Address the certified question or address constitutionality of the statute?
If Court address the certified question only will they agree to recede from Oswald & Hadley; or agree with Justice Thomas?