Westphal v. City of St. Petersburg
| Decision Date | 28 February 2013 |
| Docket Number | CASE NO. 1D12-3563 |
| Court | Florida District Court of Appeals |
| Parties | BRADLEY WESTPHAL, Appellant, v. CITY OF ST. PETERSBURG/ CITY OF ST. PETERSBURG RISK MANAGEMENT & STATE OF FLORIDA Appellees. |
FILE MOTION FOR REHEARING AND
An appeal from an order of the Judge of Compensation Claims.
Date of Accident: December 11, 2009.
Jason L. Fox of the Law Offices of Carlson & Meissner, Clearwater; Richard A. Sicking, Coral Gables, for Appellant.
John C. Wolfe, City Attorney, and Kimberly D. Proano, Assistant City Attorney, St. Petersburg, for Appellees City of St. Petersburg/City of St. Petersburg Risk Management; and Pamela Jo Bondi, Attorney General, Timothy D. Osterhaus, Solicitor General, Allen Winsor, Chief Deputy Solicitor General, Rachel E. Nordby, Deputy Solicitor General, Office of the Attorney General, Tallahassee, for Intervenor State of Florida.
Bradley Westphal challenges an order denying his claim for permanent total disability benefits under the Florida Workers' Compensation Law. Westphalalso challenges the constitutionality of the current system of redress for workplace injuries found in chapter 440, Florida Statutes. We conclude and hold that section 440.15(2)(a), Florida Statutes (2009), is unconstitutional under article I, section 21, of the Florida Constitution, as applied to Westphal and others similarly situated, by limiting him to no more than 104 weeks of temporary disability benefits, despite the fact that he was at that time totally disabled, incapable of engaging in employment, and ineligible for any compensation under Florida's Workers' Compensation law for an indeterminate period. We reverse the order below and remand with instructions to grant Westphal additional temporary total disability payments, not to exceed 260 weeks, as would have been provided under the relevant statutory provisions in effect before the 1994 amendment of section 440.15(2)(a), Florida Statutes.
Westphal, a firefighter and paramedic, injured his back and knee in the course of his employment. Westphal suffered severe injuries, resulting in nerve damage in the legs and requiring spine surgery and other medical treatment. The Employer/Carrier (E/C) accepted the injury as compensable and paid Westphal temporary total disability benefits under section 440.15(2)(a), Florida Statutes.
While recovering from the most recent surgery, and while on a total disability status as declared by his workers' compensation doctors, Westphal'sentitlement to the 104 weeks of temporary total disability benefits expired, as required by 440.15(2)(a).1 At this point, however, Westphal was incapable of working or obtaining employment, based on the advice of his doctors and the vocational experts that examined him. In an attempt to replace his pre-injury wages that he was losing because of his injuries, approximately $1,500 per week, Westphal, being some three years removed from his workplace accident, filed a claim for permanent total disability benefits—a classification of benefits available to workers who have a disability total in quality and permanent in duration. See § 440.15(1), Fla. Stat. (2009).
Relying on the Court's decision in Matrix Employee Leasing, Inc. v. Hadley, 78 So. 3d 621 (Fla. 1st DCA 2011), the JCC properly denied Westphal's request for permanent total disability benefits, finding that because Westphal had not reached maximum medical improvement, it was too speculative to determine whether he would remain totally disabled from a physical standpoint after his maximum medical improvement status was reached. As the JCC acknowledged,Westphal fell into the "statutory gap" for indemnity benefits: He could no longer receive temporary benefits, and he was not yet eligible for permanent total disability benefits, despite the undisputed severity of his injuries and his inability to obtain employment, which would involve disobeying medical advice. As we stated in Hadley: "[w]here, as here, the employee is not at [maximum medical improvement] at the expiration of the 104 weeks, there is the potential for a 'gap' in disability benefits because [temporary total disability] benefits cease by operation of law after 104 weeks and entitlement to [permanent total disability] benefits is generally not ripe until the employee reaches [maximum medical improvement]." Id. at 624.
The gap in which Westphal fell is the same statutory gap we identified in Hadley, wherein we cited numerous cases in which this court has upheld the rule announced in City of Pensacola Firefighters v. Oswald, 710 So. 2d 95 (Fla. 1st DCA 1998). In Oswald, we attempted to "ameliorate" this gap by allowing a severely injured worker to attempt to prove that he would ultimately be declared permanently and totally disabled, despite the fact that he was still recovering from his workplace injuries and still in need of additional medical treatment. Hadley, 78 So. 3d at 624.
Otherwise, if the doctor chosen by the employer determines that the claimant is still improving medically, a severely injured worker has no legal right to obtainany other disability benefits. As we recognized in Hadley, the occurrence of a "statutory gap" in disability benefits for a severely injured worker has not been a rare circumstance, and we have adhered to the Oswald rule many times. Id. at 625-26 ().
We now must answer a question not raised in Hadley, but noted by the dissenting opinion: Whether this "statutory gap" created under Florida's Worker Compensation Law violates article I, section 21 of the Declaration of Rights in the Constitution of the State of Florida. See Hadley, 78 So. 3d at 634 (Van Nortwick, J., dissenting). We emphasize that the constitutionality of the 104-week limitation on temporary total disability benefits was not an issue in that case—the issue presented in Hadley was one of statutory interpretation relative to Hadley's entitlement to permanent total disability benefits. See 78 So. 3d at 623 n.2. We now determine that Westphal is precisely the type of severely injured worker who has been denied access to courts and the constitutionally guaranteed right to the administration of justice without denial or delay, in violation of the Florida Constitution.
A determination concerning the constitutionality of a statute is a question of law reviewed de novo. See Sunset Harbour Condo. Ass'n v. Robbins, 914 So. 2d925 (Fla. 1st DCA 2005). Here, we review that provision of the constitution that guarantees Westphal access to the courts, but in addition, also guarantees that he will receive justice without denial or delay: "[T]he Courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay." Art. I, § 21, Fla. Const. (emphasis added). To the extent possible, courts have a duty to construe a statute in such a way as to avoid conflict with the constitution. See The Fla. Bar v. Sibley, 995 So. 2d 346 (Fla. 2008), cert. denied, 555 U.S. 1188 (2009). If a statute may be construed in multiple ways, one of which is unconstitutional, courts should adopt the constitutional construction. See D.S. v. J.L., 18 So. 3d 1103 (Fla. 1st DCA 2009). In Hadley, this court, in an en banc decision, concluded that the proper interpretation of the statutory scheme now before us is not "susceptible" to another interpretation, specifically one which removes the "gap" in disability benefits for individuals situated such as Westphal. See 78 So. 3d at 626. We are bound by this conclusion, and thus our constitutional analysis today is based on this court's interpretation of chapter 440 in Hadley.
In conducting our constitutional analysis, we must look to the statutory law in place when this constitutional amendment to Florida's organic law was adopted:
[W]here a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla. Stat. s. 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative toprotect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.
Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973).
Thus, we look to the statutory remedies that would have been available to a similarly injured worker in 1968, when Florida's electorate adopted both the right of access to the courts and the timely administration of justice in our organic law. We emphasize there are two different rights contained in the constitutional provision at issue: Both the right to enter the courthouse doors (or a reasonable alternative thereof), and, once inside, the right to the administration of justice "without sale, denial or delay."
As noted, Westphal was severely injured and disabled while performing his duty as a firefighter in 2009, but he was prohibited by law from suing his employer to recover any damages. Instead, under Florida law, Westphal was required to obtain any and all remedy for his injuries from the City, under the Florida Workers' Compensation Law, codified in chapter 440, Florida Statutes.
Under this law, the City—not Westphal—had the right to select and, if appropriate, de-select, the doctors who would treat his work-related injuries. Through this statutory system of recovery, the City had the right to meet and confer with their selected doctors without Westphal's involvement, and obtainotherwise-confidential medical...
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