Westphal v. City of St. Petersburg, No. SC13-1930

CourtUnited States State Supreme Court of Florida
Writing for the CourtPARIENTE, J.
PartiesBRADLEY WESTPHAL, Petitioner, v. CITY OF ST. PETERSBURG, etc., et al., Respondents. CITY OF ST. PETERSBURG, etc., Petitioner, v. BRADLEY WESTPHAL, Respondent.
Decision Date09 June 2016
Docket NumberNo. SC13-1976,No. SC13-1930

CITY OF ST. PETERSBURG, etc., et al., Respondents.

CITY OF ST. PETERSBURG, etc., Petitioner,

No. SC13-1930
No. SC13-1976

Supreme Court of Florida

June 9, 2016


In this case, we consider the constitutionality of section 440.15(2)(a), Florida Statutes (2009)—part of the state's workers' compensation law—which cuts off disability benefits after 104 weeks to a worker who is totally disabled and

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incapable of working but who has not yet reached maximum medical improvement. We conclude that this portion of the worker's compensation statute is unconstitutional under article I, section 21, of the Florida Constitution, as a denial of the right of access to courts, 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.

In Westphal v. City of St. Petersburg/City of St. Petersburg Risk Management, 122 So. 3d 440, 442 (Fla. 1st DCA 2013), an en banc majority of the First District Court of Appeal valiantly attempted to save the statute from unconstitutionality by interpreting section 440.15(2)(a) so that the severely injured worker who can no longer receive temporary total disability benefits, but who is not yet eligible for permanent total disability benefits, would not be cut off from compensation after 104 weeks.1 The judiciary, however, is without power to

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rewrite a plainly written statute, even if it is to avoid an unconstitutional result. See Brown v. State, 358 So. 2d 16, 20 (Fla. 1978) ("When the subject statute in no way suggests a saving construction, we will not abandon judicial restraint and effectively rewrite the enactment."). We accordingly quash the First District's decision.

Consistent with the views of both the petitioner, Bradley Westphal, and the principal respondent, the City of St. Petersburg, we conclude that section 440.15(2)(a) of the workers' compensation law is plainly written and therefore does not permit this Court to resort to rules of statutory construction. See Knowles v. Beverly Enters.-Fla., Inc., 898 So. 2d 1, 5 (Fla. 2004). Instead, we must give the statute its plain and obvious meaning, which provides that "[o]nce the employee reaches the maximum number of weeks allowed [104 weeks], or the employee reaches the date of maximum medical improvement, whichever occurs earlier, temporary disability benefits shall cease and the injured worker's permanent impairment shall be determined." § 440.15(2)(a), Fla. Stat. The statute does not—

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as the First District erroneously concluded—provide that the worker is at that time legally entitled to permanent total disability benefits, nor does it provide that the worker is automatically deemed to be at maximum medical improvement based on the cessation of temporary total disability benefits. See Westphal, 122 So. 3d at 444.

Applying the statute's plain meaning, we conclude that the 104-week limitation on temporary total disability benefits results in a statutory gap in benefits, in violation of the constitutional right of access to courts. The stated legislative intent of the workers' compensation law is to "assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker's return to gainful reemployment at a reasonable cost to the employer." § 440.015, Fla. Stat. (2009). Section 440.15(2)(a), however, operates in the opposite manner. The statute cuts off a severely injured worker from disability benefits at a critical time, when the worker cannot return to work and is totally disabled but the worker's doctors—chosen by the employer—deem that the worker may still continue to medically improve.

As applied to these circumstances, the workers' compensation law undoubtedly fails to provide "full medical care and wage-loss payments for total or partial disability regardless of fault." Martinez v. Scanlan, 582 So. 2d 1167, 1171-72 (Fla. 1991). Instead, for injured workers like Westphal who are not yet legally

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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 "system of compensation without contest" that stands as a reasonable alternative to tort litigation. Mullarkey v. Fla. Feed Mills, Inc., 268 So. 2d 363, 366 (Fla. 1972). Contrary to Justice Canady's dissenting opinion, the seminal case on the meaning of the Florida Constitution's access to courts provision, Kluger v. White, 281 So. 2d 1 (Fla. 1973), specifically discussed the test for determining the constitutionality of the workers' compensation statutory scheme under the access to courts provision, article I, section 21, of the Florida Constitution. The constitutional yardstick, which we applied in Martinez and Mullarkey for determining whether an access-to-courts violation occurred as a result of changes made to the workers' compensation statutory scheme, is whether the scheme continues to provide "adequate, sufficient, and even preferable safeguards for an employee who is injured on the job." Kluger, 281 So. 2d at 4.

Accordingly, we hold that the statute as written by the Legislature is unconstitutional. However, we conclude that this unconstitutional limitation on temporary total disability benefits does not render the entire workers'

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compensation system invalid.2 Rather, we employ the remedy of statutory revival and direct that the limitation in the workers' compensation law preceding the 1994 amendments to section 440.15(2)(a) is revived, which provides for temporary total disability benefits not to exceed 260 weeks—five years of eligibility rather than only two years, a limitation we previously held "passes constitutional muster." Martinez, 582 So. 2d at 1172.


In December 2009, Bradley Westphal, then a fifty-three-year-old firefighter in St. Petersburg, Florida, suffered a severe lower back injury caused by lifting

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heavy furniture in the course of fighting a fire. As a result of the lower back injury, Westphal experienced extreme pain and loss of feeling in his left leg below the knee and required multiple surgical procedures, including an eventual spinal fusion.

Shortly after his workplace injury, Westphal began receiving benefits pursuant to the workers' compensation law set forth in chapter 440, Florida Statutes (2009). Specifically, the City of St. Petersburg began to provide both indemnity benefits, in the form of temporary total disability benefits pursuant to section 440.15(2), Florida Statutes, and medical benefits.

Under section 440.15(2)(a), entitlement to temporary total disability benefits ends when a totally disabled injured worker reaches the date of maximum medical improvement or after 104 weeks, whichever occurs earlier. § 440.15(2)(a), Fla. Stat. The "date of maximum medical improvement" is defined in section 440.02(10), Florida Statutes (2009), as "the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability." Westphal did not reach maximum medical improvement prior to the expiration of the 104-week limitation on temporary total disability benefits.

At the expiration of temporary total disability benefits, Westphal was still incapable of working or obtaining employment, based on the advice of his doctors

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and the vocational experts that examined him. In an attempt to replace his pre-injury wages of approximately $1,500 per week that he was losing because of his injuries, Westphal filed a petition for benefits, claiming either further temporary disability or permanent total disability pursuant to section 440.15(1), Florida Statutes (2009).

A. Judge of Compensation Claims Decision

The Judge of Compensation Claims (JCC) held a hearing on Westphal's petition and subsequently denied the claim for permanent total disability benefits based on its interpretation of City of Pensacola Firefighters v. Oswald, 710 So. 2d 95 (Fla. 1st DCA 1998), and Matrix Employee Leasing, Inc. v. Hadley, 78 So. 3d 621 (Fla. 1st DCA 2011). In Oswald, the First District held that to receive permanent total disability benefits, "an employee whose temporary benefits have run out—or are expected to do so imminently—must be able to show not only total disability upon the cessation of temporary benefits but also that total disability will be 'existing after the date of maximum medical improvement.' " 710 So. 2d at 98, abrogated by Westphal, 122 So. 3d at 448 (quoting § 440.02(19), Fla. Stat. (Supp. 1994)). The First District also observed that the statutory scheme could create a statutory gap—a period of time when totally disabled individuals would no longer be eligible for temporary total disability benefits and could not receive any disability benefits until, possibly, finally being declared eligible for permanent

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total disability benefits. Id. at 97-98. In Hadley, the First District again acknowledged the concern of a statutory gap in benefits, but reaffirmed Oswald nonetheless. See Hadley, 78 So. 3d at 624-25, receded from by Westphal, 122 So. 3d at 442.

Based on this line of case law, the JCC denied Westphal's claim. In its final order, the JCC found that Westphal had not reached maximum medical improvement and that it was "too speculative to determine whether he will remain totally disabled after the date of [maximum medical improvement] has been reached from a physical standpoint." Thus, Westphal fell into the statutory gap—still totally disabled at the cessation of temporary total disability benefits, but not yet entitled to permanent total disability benefits because he could not prove that he would...

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