Special Analysis Regarding Florida Westphal Decision

The decision announced yesterday in the case of Westphal v. City of St. Petersburg & State of Florida has potentially enormous ramifications for the workers' compensation industry, employers and claimants in the state.

In response to internal discussions, questions received by esteemed clients -- and rumors in circulation – the Florida law firm of MKRS has issued the following Q & A Bulletin to its clients to help clarify and answer many of the early questions this decision has created.

Q.        The initial MKRS bulletin described both the TTD and TPD "104 week" limitation as having been stricken, but the opinion specifically strikes only the TTD -- not the TPD limitations: explain?

A.        That is absolutely correct: the actual "holding" is limited to TTD.

However, following analysis and discussion it is our conclusion that while an argument can be made to show the precise circumstances and dire straits affecting this particular individual can only occur in the TTD setting (and remember, bad cases still make bad law: this one did); we note:

1. There are several substantive similarities between the two situations. Consider an individual returned to work at 50% of former earnings who is still on TPD after 104 weeks presents a similar plight albeit with a better financial situation (50% of AWW versus Westphal's zero); or, a construction worker with a 5 pound lifting restriction is released to light or sedentary duty who cannot find work after the hundred fourth week: we believe a case challenging that outcome will meet the same fate.
   
   
2. There is sufficiently provocative language in the opinion, with its foundation in "natural justice" and its having employed such words as "repugnant," and like, in the TTD setting, that we deduce it would be futile to "defend," in the "next case," the 104 week TPD limitation in the belief it will be stricken for the same infirmities.
   
   
3. We look to a 1989 Supreme Court decision striking the disparity in the $1000 death benefit as between dependents outside the country versus the 50k for those within: it happened that the legislature raised the amount to $50,000 - and residents to $100,000 during the pendency of the appeal, but narrowing the gap did not "cure" the constitutional infirmity: rather, the fact there was any disparity rendered it unconstitutional. While not directly applicable, borrowing such thinking leads us to the conclusion TPD will suffer a similar fate if challenged.

Bottom line: as an aggressive tactical option, an E/C may still assert that the strictly literal holding in Westphal does not impact a TPD case that has gone beyond the 104 weeks (or even TTD, until Westphal is absolutely final, discussed below). Moreover, a claimant's appeal from an adverse ruling can in most cases be avoided or stopped midstream by an E/C's decision to make full payment of the amount in controversy even though the E/C has won at trial. However, if challenged all the way, we anticipate the TPD limitation will also fall.

Q.        When does this decision actually become effective?

A.        It depends, literally!

Because the District Court struck a state statute as unconstitutional, stay is automatic, pending Supreme Court review. Our bulletin #1 was not clear in this particular respect: in most instances the District Court would have indicated 'concern' over constitutionality, but then certify the decision to the Supreme Court. That did not happen here: on its face the opinion is final and binding - - until and unless the Supreme Court quashes the order of the District Court - - but it's actual and immediate governing effect will be stayed until the Supreme Court decides one way or the other.

Bottom line: It would be wise to move to stay or continue any impacted, pending matter or even pretrial stip until the Supreme Court outcome. There should not be much objection or judicial resistance to this, even though claimants will be chomping at the bit to go forward.

Q.       Are there other events that may impact finality:

A.       Yes, but....

Motion for Rehearing en banc: we were surprised the Court did not decide the case en banc on its own motion, and ordinarily, the employer/state would file a motion for full determination by all 15 judges of the 1st DCA rather than leave such an important question to only the three. If the full Court then decided to hear it, it might change the outcome if enough judges disagreed strongly enough, in sufficient number to overturn the result (there were three dissenting justices even in the notorious Aguilera case, out of seven!).

HOWEVER: given the enormous significance of the case and its guaranteed appearance before the Supreme Court, the employer and the state may just forgo this interim step and put the matter in the Supreme Court's hands sooner rather than later. That is our projection. 

At this point, however, we have no reasonable basis upon which to project the Supreme Court's handling of the TTD issue in Westphal except to say, in the light of the 2008 Murray decision, odds slightly favor affirmance of the DCA decision.

Q.        Are other elements of the law now in jeopardy?

A.        We believe the answer might be: yes.

There is no direct cause and effect but for instance, the recent 'cost' decision in Frederick v. Monroe County Sch. Bd., 99 So.3d 983 (Fla. 1st DCA 2012) is presently before the Supreme Court: Claimant, following advice of an authorized treating physician, filed a PFB for shoulder surgery; E/C denied and obtained an IME opposing surgery, an event followed by an EMA who supported E/C's IME -- leading Claimant to voluntarily dismiss the case, which would seem to track the statutory purpose for an EMA, i.e., cut down on litigation. Nevertheless, E/C pressed and Claimant was hit with over $11,000 in costs. There is no clear indication the court will take the case all the way but the current cost structure of the act is, we believe, vulnerable.

There are also believed to be as many as three other cases before the District Court entailing challenges to other perceived weaknesses in the law, such as Claimant-paid IME/EMA and MCC/apportionment. Because we do not have sufficient additional information at this time, apart from this heads-up, there is little point in reporting further until and unless actual opinions emerge.

As always, our attorneys are available to assist with any question, concern or need regarding this or any other matter. As a final note, coincidentally, this topic has already been made a focus of presentations at the upcoming Workers Compensation Convention through both George Kagan's NWCR Panel and Robert Rodriguez's Mock Trial presentation, which will feature the judge who presided over the trial of the matter at issue, the Honorable Stephen L. Rosen!

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About the Contributor:

H. George Kagan was named among the "Top 100" Florida Super Lawyers for two years and included among Florida Super Lawyers for the last eight (including, as was recently announced, 2013).  In 2012 he received Martindale-Hubbell's 30^th Anniversary “AV- Preeminent” rating (Highest Possible Peer Review Rating in Legal Ability & Ethical Standards), and has for seventeen years seen continuous inclusion in Best Lawyers in America.  He is also immediate past chair of the national Workers' Compensation Committee of DRI: Voice of the Defense Bar, where he inaugurated the National Workers' Compensation Review, now in its 4^th year. 

In 2010 George was inducted into the American Bar Association's College of Workers' Compensation Lawyers, and his firm, Miller Kagan Rodriguez & Silver was designated as one of the nation's ‘Best Law Firms' by US News and World Report from 2010 to 2012.  In January 2012, he was inducted into the inaugural class of the Florida Workers' Compensation Hall of Fame.  Also in 2012, George lectured on the foundational topic of ‘medical benefits' at ‘The Forum' –- the combined Florida Bar Board Certification Course tied to the WCCP Claims Professionals CWCL Certification course.

You can learn more about Mr. Kagan here.

His firms website is www.mkrs.com.

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