Jim Rosica
The state’s Supreme Court on Thursday delivered another blow to Florida’s workers’ compensation law.
In a 5-2 decision, the court ruled unconstitutional part of the law that “cuts off disability benefits … to a worker who is totally disabled and incapable of working but who has not yet reached maximum medical improvement,” or in other words, the person cannot heal any further.
That cutoff “is unconstitutional … as a denial of the right of access to courts,” said the opinion by Justice Barbara Pariente.
That’s because “it deprives an injured worker of disability benefits under these circumstances for an indefinite amount of time — thereby creating a system of redress that no longer functions as a reasonable alternative to tort litigation,” it added.
Justices Charles Canady and Ricky Polston dissented, saying they reject the argument that a limit in law “on the period of eligibility for temporary total disability benefits violates the right of access to courts.”
Thursday’s decision in Westphal v. City of St. Petersburg amounted to the second in a one-two punch against the state worker’s comp regime, mandated to pay workers who get hurt on the job.
In April, the court also struck down the law’s legal fee schedule as unconstitutional, saying it was a violation of due process. That decision also was authored by Pariente.
Soon after, state insurance regulators were hit with a 17-percent rate hike request from insurers in the cost of workers’ comp to employers. An umbrella organization making the request directly attributed the increase to the Court’s decision in Castellanos v. Next Door Company.
The Westphal case involves a dispute over disability benefits for an injured St. Pete firefighter. Bradley Westphal, then 53, severely hurt his back lifting heavy furniture as he fought a December 2009 fire, records show. Arguments were held nearly two years ago.
The issue was over “the severely injured worker who can no longer receive temporary total disability benefits, but who is not yet eligible for permanent total disability benefits, (being) cut off from compensation after 104 weeks,” or almost two years, the opinion said.
That essentially forces an injured worker into a legal twilight zone.
“(F)or injured workers like Westphal who are not yet legally entitled to assert a claim for permanent total disability benefits at the conclusion of 104 weeks of temporary total disability benefits, the workers’ compensation law lacks adequate and sufficient safeguards and cannot be said to continue functioning … as a reasonable alternative to tort litigation,” Pariente wrote.
Florida’s worker’s comp system has long been caught in a tug-of-war between labor and business interests.
Opponents have criticized the 2003 changes put in place by Gov. Jeb Bush and the Legislature, saying they were draconian and favored employers at the cost of injured employees. Companies said the new system cut costs, which helps businesses grow jobs. And the changes also were intended to reduce lawsuits over benefits.
Pariente wrote that the decision “revived” a previous section of law, allowing “temporary total disability benefits not to exceed 260 weeks — five years of eligibility rather than only two years.”
Justice R. Fred Lewis concurred, but said reviving the old part of the law “simply moves the goal posts without eliminating the unconstitutional statutory gap that will still persist for those who remain totally — but not permanently — disabled after 360 weeks,” or nearly seven years.
The majority decision “leaves Florida workers in an only marginally better position than they were” before, he added. The state’s worker’s comp system is still “fundamentally unconstitutional and in need of legislative — not judicial — reform.”
Canady, while disagreeing that Westphal was wrongly denied access to the courts, partly agreed.
The “decision to substantially increase weekly compensation for temporary total disability and to reduce the number of weeks that such benefits are paid is a trade-off that is a matter of policy within the province of the Legislature,” Canady wrote in his dissent.
“The Legislature — rather than this Court — has the institutional competence and authority to make such policy judgments.”
3 comments
Dina Padilla
June 10, 2016 at 7:27 pm
The two year cap on temporary disability was being used without legislation since the early 90’s until legislators across the states. I t was then used as precursor to force Injured Workers onto the SSA/Medicare and other employee/employer paid federal programs. Then in the 2000’s the two ear became the law. Anyone filing for Workers compensation under the law was then subjected to much less than two years. Now there are states who just want to be able to opt out. More often than not injured workers were not given the right medical care thus having to lengthen their time for more temporary disability and too, other body parts were over compensating. We need reform of the workers compensation systems across the state and not punish any further injured workers for something that is not their fault. Employers need to accept their responsibilities and do what is necessary to morally and financially take care of their workers and injured workers alike and not just leave them uncared for when they need it themost. Employees do the utmost to help the employers profit and this same attitude should be the same for employers for their employees.. Employers need to be reformed in the thinking that they will do what is necessary to make sure their employees are not harmed at the workplace. Then the savings will begin. Employers too can than fight to honestly secure lower rates from the insurance industry. Now that is a concept.worthy for all.
David M Hall CPCU, ALCM
June 13, 2016 at 9:40 am
I think the real question is where to draw the line. There are clearly a subset of people gaming the system. How do you make sure that WC pays the people it should pay while weeding out Doctor patient, or provider fraud. Do nothing and the cost for those who should provide it will be unsustainable, go too far and you penalize those the system was designed for in the first place. Clearly something needs to be done. Costs in states with uninformed advocates or un-reviewed systems are soaring. Are we capable of intelligent conversation that would lead to a reasonable answer?
Dina Padilla
June 13, 2016 at 3:09 pm
Since the 80’s, under Reagan’s Administration, injuring workers has become nothing but a profit making business for many in the Workers compensation system who did not exist before. Injuring workers for profit Should be a criminal offense as well as crimes against humanity. The insurance companies for employers has been in control of every aspect of the workers compensation system that figures out how to cheat injured workers out of every benefit possible guaranteed by state constitutions (federal mandates and standards) and is nothing but an abysmal failure except for its own existence. When employers do their very best to make sure they provide a healthy and safe working environment plus cut the fraud and corruption that permeates the insurance industry, all to not pay injured workers their rightful benefits is one of this country’s insidious, hideous and odious schemes against workers, only then will the costs greatly decline. Propublica/NPR show many of the problems and times that by millions. Of course the insurers will continue to rail against any entity who dares to expose the insurance industry for what it really is, an injuring workers profit machine.
BTW, I’m not just an advocate for injured workers but an injured workers for over 30 years and who has researched the existence of the real workers compensationystem here in the U.S..
Footnote. The same problems are occurring in Canada & England where their health care systems are universal government run.
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