Westphal v. City of St. Petersburg, No. 1D12–3563.

CourtCourt of Appeal of Florida (US)
Writing for the CourtPADOVANO
Citation122 So.3d 440
PartiesBradley WESTPHAL, Appellant, v. CITY OF ST. PETERSBURG/CITY OF ST. PETERSBURG RISK MANAGEMENT, and State of Florida, Appellees.
Docket NumberNo. 1D12–3563.
Decision Date23 September 2013

122 So.3d 440

Bradley WESTPHAL, Appellant,
v.
CITY OF ST. PETERSBURG/CITY OF ST. PETERSBURG RISK MANAGEMENT, and State of Florida, Appellees.

No. 1D12–3563.

District Court of Appeal of Florida,
First District.

Sept. 23, 2013.


[122 So.3d 441]


Jason L. Fox of the Law Offices of Carlson & Meissner, Clearwater; and Richard A. Sicking, Coral Gables, for Appellant.

Richard W. Ervin, III of Fox & Loquasto, P.A., Tallahassee, for Amicus Curiae Florida Workers Advocates, in support of Appellant.


Andre M. Mura of Center for Constitutional Litigation, P.C., Washington, D.C., for Amicus Curiae American Association for Justice, in support of Appellant.

Bill McCabe of Longwood, for Amicus Curiae Florida Justice Association, in support of Appellant.

Geoffrey Bichler of Bichler, Kelley, Oliver & Longo, PLLC, Maitland, for Amicus Curiae Police Benevolent Association, in support of 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; Pamela Jo Bondi, Attorney General, Allen Winsor, Chief Deputy Solicitor General, and Rachel E. Nordby, Deputy Solicitor General, Tallahassee, for Appellee State of Florida.

William H. Rogner, Winter Park, for Amicus Curiae Associated Industries of Florida; Associated Builders and Contractors of Florida; The Florida Chamber of Commerce; The Property Casualty Insurers Association of America; The Florida Justice Reform Institute; Publix Super Markets; United Parcel Service; The Florida Roofing, Sheet Metal and Air Conditioning Contractors Association; The Florida Retail Federation; The American Insurance Association; The National Federation of Independent Business; The Florida United Businesses Association,

[122 So.3d 442]

Inc.; and The Florida Association of Self Insured's, in support of Appellees.

George T. Levesque, General Counsel, Florida Senate, Tallahassee; and Daniel E. Nordby, General Counsel, Florida House of Representatives, Tallahassee, for Amicus Curiae The Florida Senate and The Florida House of Representatives, in support of Appellees.


EN BANC

PADOVANO, J.

This case is before the full court on motions by the State of Florida and the City of St. Petersburg for rehearing en banc. For the reasons that follow, we grant the motions, withdraw the panel opinion in Westphal v. City of St. Petersburg/City of St. Petersburg Risk Management and State of Florida, 2013 WL 718653 (Fla. 1st DCA Feb. 28, 2013), and recede from our previous en banc opinion in Matrix Employee Leasing, Inc. v. Hadley, 78 So.3d 621 (Fla. 1st DCA 2011).

We hold that 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 benefits is deemed to be at maximum medical improvement by operation of law and is therefore eligible to assert a claim for permanent and total disability benefits. This conclusion is supported by the text of the Workers' Compensation Law, as we shall explain, and it eliminates the possibility that disabled workers, like the claimant in this case, will fall into an indefinite gap in which they would not be entitled to apply for disability benefits. In light of our decision in this case, we find it unnecessary to consider the claimant's argument that the statute, as we previously construed it in Hadley, is unconstitutional as a denial of the right of access to the courts.

A brief statement of the history of the issue is needed to properly explain our decision. This court first addressed the potential problems created by the 104–week time limit on temporary disability benefits in City of Pensacola Firefighters v. Oswald, 710 So.2d 95, 98 (Fla. 1st DCA 1998). The claimant in that case was nearing the end of his eligibility for temporary benefits but he had not reached maximum medical improvement. We held that “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.’ ” Oswald, 710 So.2d at 98. (quoting § 440.02(19), Fla. Stat. (Supp.1994)). The underlying principle was described in the opinion as a “narrow but necessary exception” to the longstanding rule that permanent total disability benefits are not awardable before the claimant has reached maximum medical improvement. Oswald, 710 So.2d at 96–98. Because the claimant in Oswald was not able to show that he would be totally disabled after he reached maximum medical improvement, we held that he was not yet entitled to assert his claim.

The court adhered to the rule in Oswald in a number of panel decisions and in the en banc decision in Matrix Leasing, Inc. v. Hadley. The court in Hadley acknowledged that the applicable statutes may create a gap in disability benefits for those injured workers who are totally disabled on the expiration of temporary disability benefits but fail to prove prospectively that total disability will exist after the date of maximum medical improvement. Nevertheless, the court concluded that it could not interpret the statute to avoid the gap. Mr. Hadley had exhausted his 104 weeks of temporary total disability benefits but

[122 So.3d 443]

he needed to undergo several additional surgical procedures and he was not yet at maximum medical improvement. Applying the rule in Oswald, the court concluded that he was not entitled to apply for permanent total disability benefits until such time as he could offer medical proof that he was at maximum medical improvement or that he would be totally disabled once he reached maximum medical improvement.

Based on the rule in Hadley, the judge of compensation claims in this case denied a claim for permanent and total disability benefits. Mr. Westphal, a firefighter, felt a sharp pain in his back as he was moving heavy furniture while fighting a fire. By the time he returned to the fire station, he reported extreme pain and a loss of feeling in his left leg from the knee down. The city accepted the compensability of his low back and left knee injuries and provided both indemnity and medical benefits.

Mr. Westphal sought and obtained temporary total disability benefits for a period of 104 weeks but he was still totally disabled at the time those benefits expired. He filed a petition seeking compensation in the form of permanent and total disability benefits, and the judge of compensation claims considered the petition in a hearing and denied it.

The judge rejected the testimony of an independent medical examiner, Dr. Victor Hayes, M.D., to the effect that Mr. Westphal would be totally disabled at the time he reached maximum medical improvement and relied instead on the testimony of Mr. Westphal's treating physician, Dr. David McKalip, M.D. As a part of his treatment, Dr. McKalip performed two surgical procedures on Mr. Westphal's back. He testified that Mr. Westphal was still recovering from the second surgery and that it was too soon to render an opinion as to the nature and extent of any permanent work restrictions he might impose once Mr. Westphal reached maximum medical improvement from the surgery.

The final order denying the petition explains why the judge accepted the testimony of Mr. Westphal's treating physician over the contrary testimony offered by the independent medical examiner. The judge stated in the order, “While claimant urges reliance on the opinion of his independent medical examiner, Dr. Hayes, I choose to rely on the testimony of Dr. McKalip, the orthopedic surgeon who recently performed surgery on April 11, 2012, as being in the best position to determine whether or not the claimant has reached physical maximum medical improvement.”

The judge also rejected Mr. Westphal's argument that he would still be totally disabled after eventually attaining maximum medical improvement. On this point, the judge made the following finding: “Based on Dr. McKalip's testimony, and the en banc decision from the First District Court of Appeal in Matrix Employee Leasing v. Hadley, 78 So.3d 621 (Fla. 1st DCA 2011), I find that the claimant has not reached [MMI] from a physical standpoint and it is too speculative to determine whether he will remain totally disabled after the date of [MMI] has been reached from a physical standpoint.” (emphasis added.) Because Mr. Westphal had not proven that he would be totally disabled when he reached maximum medical improvement, the judge denied the claim for permanent and total disability benefits.

Mr. Westphal then appealed to this court. He argues that the 104–week limit on temporary total disability benefits results in a denial of the constitutional right of access to courts for those workers who remain totally disabled but are still improving when their temporary benefits expire. This is the issue that ultimately prompted the court to hear the case en

[122 So.3d 444]

banc. However, we need not address the constitutional validity of the statutory limitation on temporary disability benefits, because the controversy is one that can be resolved on another ground.

We now conclude that we interpreted the Workers' Compensation Law incorrectly in Hadley and that we should recede from the rule we adopted in that case. Nothing in the text of the applicable statutory provisions suggests that the Legislature intended to create a gap in which some totally disabled workers will be ineligible to apply for disability benefits. Moreover, the notion that there can be a period of time during which a disabled worker is not entitled to be compensated for his or her workplace injury is contrary to the basic purpose of the Workers' Compensation Law.

Section 440.15(2)(a) of the Workers' Compensation Law provides that a disabled worker is eligible for temporary total disability benefits for a maximum of 104 weeks but it does not suggest that...

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18 practice notes
  • Banks v. Jones, No. 1D15–0330.
    • United States
    • Court of Appeal of Florida (US)
    • July 12, 2016
    ...citations omitted).This court acknowledged the vital importance of precedent and stare decisis in Westphal v. City of St. Petersburg, 122 So.3d 440, 447 (Fla. 1st DCA 2013), quashed on other grounds by Westphal v. City of St. Petersburg, 194 So.3d 311 (Fla.2016). We noted with approval the ......
  • In re Doe, No. 1D13–5458.
    • United States
    • Court of Appeal of Florida (US)
    • April 11, 2014
    ...regulation prohibiting the storage of a firearm in a vehicle on the university's property); Westphal v. City of St. Petersburg, 122 So.3d 440 (Fla. 1st DCA 2013) (addressing a constitutional challenge to a worker's compensation statute); Haridopolos v. Citizens for Strong Schools, Inc., 81 ......
  • Westphal v. City of St. Petersburg, No. SC13–1930
    • United States
    • United States State Supreme Court of Florida
    • June 9, 2016
    ...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 unconstitutio......
  • Westphal v. City of St. Petersburg, No. SC13-1930
    • United States
    • United States State Supreme Court of Florida
    • June 9, 2016
    ...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 unconstitut......
  • Request a trial to view additional results
18 cases
  • Banks v. Jones, No. 1D15–0330.
    • United States
    • Court of Appeal of Florida (US)
    • July 12, 2016
    ...citations omitted).This court acknowledged the vital importance of precedent and stare decisis in Westphal v. City of St. Petersburg, 122 So.3d 440, 447 (Fla. 1st DCA 2013), quashed on other grounds by Westphal v. City of St. Petersburg, 194 So.3d 311 (Fla.2016). We noted with approval the ......
  • In re Doe, No. 1D13–5458.
    • United States
    • Court of Appeal of Florida (US)
    • April 11, 2014
    ...regulation prohibiting the storage of a firearm in a vehicle on the university's property); Westphal v. City of St. Petersburg, 122 So.3d 440 (Fla. 1st DCA 2013) (addressing a constitutional challenge to a worker's compensation statute); Haridopolos v. Citizens for Strong Schools, Inc., 81 ......
  • Westphal v. City of St. Petersburg, No. SC13–1930
    • United States
    • United States State Supreme Court of Florida
    • June 9, 2016
    ...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 unconstitutio......
  • Westphal v. City of St. Petersburg, No. SC13-1930
    • United States
    • United States State Supreme Court of Florida
    • June 9, 2016
    ...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 unconstitut......
  • Request a trial to view additional results

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