Jones v. Food Lion, Inc.

• Decision Date: 09 November 2016
• Docket Number: No. 1D15–3488.,1D15–3488.
• Citation: 202 So.3d 964
• Parties: Vincent JONES, Appellant, v. FOOD LION, INC. and Risk Management Services, Appellees.
• Court: Florida District Court of Appeals

202 So.3d 964

Vincent JONES, Appellant,
v.
FOOD LION, INC. and Risk Management Services, Appellees.

No. 1D15–3488.

District Court of Appeal of Florida, First District.

Nov. 9, 2016.

Bill McCabe, Longwood, for Appellant.

Janelle G. Koren of Sponsler, Bishop, Koren & Hammer, P.A., Tampa, for Appellees.

PER CURIAM.

In this workers' compensation appeal, Claimant argues the Judge of Compensation Claims (JCC) erred in finding that his claim for permanent total disability benefits was not ripe for adjudication because Claimant had not reached overall maximum medical improvement according to his authorized healthcare providers. Claimant argued below that his claim was nonetheless ripe given this Court's reasoning in Westphal v. City of St. Petersburg (Westphal I ), 122 So.3d 440 (Fla. 1st DCA 2013) (en banc). In Westphal I, this Court held:

[A] worker who is totally disabled as a result of a workplace accident and remains totally disabled by the end of his or her eligibility for temporary total disability is deemed to be at maximum medical improvement by operation of law and is therefore eligible to assert a claim for permanent total disability benefits.

Id. at 442.

The parties agreed at the time of the June 8, 2015, hearing that Claimant had not reached maximum medical improvement per his healthcare providers, that he was at that time temporarily partially disabled, and that he otherwise would be eligible for temporary partial disability benefits but for the expiration of the 104–week eligibility limitation found in paragraph 440.15(4)(e), Florida Statutes (2011). The JCC declined to extend this Court's reasoning in Westphal I to the facts of the case before him, concluding that the Westphal I opinion addressed only the circumstance wherein a claimant was temporarily totally disabled at the end of the 104 weeks of eligibility. This appeal followed.

202 So.3d 965

On June 9, 2016, the Florida Supreme Court released Westphal v. City of St. Petersburg (Westphal II ), 194 So.3d 311, 327 (Fla.2016), in which the court held paragraph 440.15(2)(a), Florida Statutes (2009), unconstitutional as applied to Westphal and all others similarly situated, as a denial of the right of access to courts guaranteed by article I, section 21, of the Florida Constitution. The supreme court reasoned:

cut[ting] off disability benefits after 104 weeks to a worker who is totally disabled and incapable of working but who had not yet reached maximum medical improvement ... deprives an injured worker of disability benefits under these

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