Kneer v. Lincare and Travelers Insurance
| Decision Date | 03 April 2019 |
| Docket Number | No. 1D18-1988,1D18-1988 |
| Parties | William KNEER, Appellant, v. LINCARE AND TRAVELERS INSURANCE, Appellees. |
| Court | Florida District Court of Appeals |
Dean Burnetti, Lakeland, and Bill McCabe, Longwood, for Appellant.
Steven H. Preston of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for Appellees.
In this workers' compensation appeal, Claimant argues that § 440.093(3), Florida Statutes, is unconstitutional, and that the finding that he had no psychiatric work restrictions is unsupported by competent substantial evidence. We affirm.
The facts are not in dispute. Claimant suffered an accident and back injury arising out of work performed in the course and scope of his employment in 2014. After the injury, Claimant underwent extensive back surgery. Claimant reached maximum medical improvement (MMI) for his back injury in January 2016, with a 10% permanent impairment. He was assigned permanent physical restrictions, including restrictions related to his ability to lift, carry, and stand.
About 18 months later, in August 2017, Claimant filed a petition for benefits (PFB) seeking psychological treatment for depression relating to his back injury. This claim did not arise from a new physical injury, but from the original accident and back injury. The employer/carrier (E/C) accepted compensability and authorized treatment. Claimant then filed a PFB in December 2017, seeking temporary partial disability (TPD) benefits extending back to January 2016, the date of physical MMI, for his mental injury.
The E/C opposed this petition asserting that the temporary disability claim was unsupported by the record and precluded by the workers' compensation statute, which cuts off temporary benefits for psychiatric injuries six months after a claimant reaches physical MMI. See § 440.093(3), Fla. Stat. The JCC agreed with the E/C's argument and denied temporary disability benefits, citing § 440.093(3), as well as Utopia Home Care/Guarantee Insurance Co. v. Alvarez , 230 So.3d 72 (Fla. 1st DCA 2017), and School Board of Lee County v. Huben , 165 So.3d 865 (Fla. 1st DCA 2015).
On appeal, Claimant brings a constitutional challenge to § 440.093(3)'s six-month limitation on temporary disability benefits for mental injuries once physical MMI is reached. He argues first that § 440.093(3) unconstitutionally denies his access to the courts, due process, and equal protection by forbidding him from receiving TPD benefits even though his psychiatric injury has not reached MMI. The standard of review for such constitutional challenges is de novo. See Medina v. Gulf Coast Linen Servs. , 825 So.2d 1018, 1020 (Fla. 1st DCA 2002).
Claimant's constitutional challenge is focused on § 440.093(3) of the workers' compensation statute, which reads as follows:
Subject to the payment of permanent benefits under s. 440.15, in no event shall temporary benefits for a compensable mental or nervous injury be paid for more than 6 months after the date of maximum medical improvement for the injured employee's physical injury or injuries, which shall be included in the period of 104 weeks[* ] as provided in s. 440.15(2) and (4). Mental or nervous injuries are compensable only in accordance with the terms of this section.
Under this section, an injured employee's ability to receive temporary benefits is linked to the existence and duration of the physical injury. First, § 440.093(1)"emphasize[s] the requirement of an ‘accompanying physical injury requiring medical treatment’ before payment of benefits for mental or nervous injuries is allowed." Utopia Home Care , 230 So.3d at 73 ; see also Indian River Cty. Sheriff's Dep't v. Roske , 417 So.2d 1161 (Fla. 1st DCA 1982) ; see also Superior Mill Work v. Gabel , 89 So.2d 794 (Fla. 1956). Then, subsection (3) sets a Huben , 165 So.3d at 867.
Under the system, injured workers can receive temporary disability benefits for mental injuries that accompany qualifying physical injuries for up to 260 weeks. But if the mental injury outlasts physical MMI, temporary benefits are payable for only six more months after reaching MMI (up to the 260-week maximum).
In Claimant's case, TPD benefits were not available based on his psychiatric injury because it arose more than a year after he reached physical MMI on the back injury. Under § 440.093 and the case law, Claimant missed the window for receiving TPD benefits related to his psychiatric injury. Had Claimant's psychiatric injury developed contemporaneously or closer in time with his physical injuries, he could have qualified for TPD benefits prior to physical MMI, and then for six months after reaching physical MMI. But because his psychiatric injury manifested more than a year after reaching physical MMI, he missed the period in which TPD benefits were available for it.
Dissatisfied with these statutory parameters, Claimant cites Westphal and argues that § 440.093(3)'s limitation on temporary benefits for psychiatric injuries violates his constitutional right to access the courts, as well as his due process and equal protection rights. In Westphal , the Florida Supreme Court ruled that the workers' compensation statute's 104-week cap on temporary benefits in § 440.15(2)(a) violated article I, § 21, of the Florida Constitution. Mr. Westphal suffered a workplace injury that left him totally physically disabled and unable to work. Westphal , 194 So.3d at 327. After receiving temporary total disability benefits for 104 weeks, the statute terminated benefits, leaving him totally disabled, unable to work, and statutorily prevented from receiving disability wages for an indefinite period, until an employer-authorized doctor determined that he reached MMI. Id.
The Florida Supreme Court determined that the statute's 104-week temporary benefits cap denied Mr. Westphal's right of access to courts because it withheld disability benefits indefinitely, at a time "when the worker cannot return to work and is totally disabled." Id. at 314. By terminating Mr. Westphal's benefits after just 104 weeks, the Court held that the system did not function as a reasonable alternative to tort litigation. Id. It held that 260 weeks of temporary total disability benefits would henceforth be available to Mr. Westphal and others like him, up from the 104 weeks authorized in § 440.15(2)(a). Id.
Claimant argues that his situation requires a similar analysis and modification of a statutory limitation, so that he can receive temporary benefits for his lingering psychiatric injury. But we don't read Westphal to require this result. In Westphal , the Court recognized the existence of a "tipping point" when the diminution of workers' compensation benefits—measured from the 1968 Constitution's adoption of the right of access to courts—renders the workers' compensation system unconstitutional. Id. at 323. The Court's chief consideration was whether Florida's workers' compensation system provided a "reasonable alternative to tort litigation." Id. (citing Kluger v. White , 281 So.2d 1 (Fla. 1973) ). The Court proceeded to measure a 70% reduction in temporary benefits for injured workers since 1968, which applied "even if the worker remains incapable of working for an indefinite period of time." Id. at 325. And it concluded that the 104-week limitation was unconstitutional for workers like Mr. Westphal, who couldn't use the tort system to recover for their workplace injury, couldn't work, and faced interim "economic ruination" because their benefits were statutorily cut off during the recovery period until an E/C-appointed doctor declared them to be at MMI. Id. at 326.
Claimant's circumstances are different and substantially more favorable than those faced by Mr. Westphal. Unlike Mr. Westphal, Claimant has already qualified for permanent benefits and he can work. Claimant reached physical MMI and received permanent benefits and an impairment rating based on his physical injury. His benefits don't depend upon receiving a favorable decision from an E/C-appointed doctor. Furthermore, Claimant has no work restrictions due to his psychiatric injury. In fact, Claimant's doctors think it's in his best interest from a psychiatric perspective to return to work. These factors make Claimant's situation different from the ruinous situation faced by Mr. Westphal.
Under these circumstances, we see no Westphal -type constitutional problem with the statute's limitation on psychiatric benefits. See § 440.015, Fla. Stat. (). Although § 440.093(3) draws narrower parameters for receiving temporary benefits for psychiatric injuries than for physical injuries, it does not force claimants to wait indefinitely to receive permanent disability benefits, or expose claimants to economic ruination while awaiting qualification for permanent benefits, as was Mr. Westphal's situation. See W.G. Roe & Sons v. Razo-Guevara , 999 So.2d 708, 709 (Fla. 1st DCA 2008) ().
Another reason we don't see a constitutional problem with § 440.093(3), is that its six-month-post-physical-MMI limitation on temporary benefits applies only to psychiatric injuries, which have historically received less favorable treatment in Florida law. Had Claimant's psychiatric injury arisen closer-in-time to, or contemporaneously with, his related physical injury, he would have qualified to receive TPD benefits. But his psychiatric injury arose more than a year after his physical...
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