Westphal v. City of St. Petersburg En Banc decision filed September 23, 2013
The First DCA has rendered their opinion en banc—the entire court reviewed the panel decision—and rejected the panel decision.
The appellate Court’s holding on the issue of whether Westphal was entitled to file for PTD benefits prior to being placed at medical maximum improvement was a practical solution. The Court held 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.” (emphasis added) Thus, if a claimant is not at MMI at 104 weeks and otherwise remains disabled, a claimant can file for PTD benefits. The claimant does not need medical proof that he/she is at MMI at that point. The Court ruled that the 104 week limitation on temporary benefits is a temporal “deadline” at which time MMI must be assigned, by law. §440.15(3)(d), Fla. Stat. (2009). There should be no gap in benefits for claimants who remain disabled. Thus, the claimant can file for PTD, prior to medical MMI, but he would need to prove his entitlement to that classification of benefits.
The Court removed the gap created by earlier case law by receding from any conflicting precedent. Through this pragmatic maneuver the Court was able to avoid the constitutional issues faced head-on by the original panel. In addition, the majority’s decision avoided discussion of any expansion of entitlement to temporary benefits (the 260 week proposal of the earlier panel discussion). The question of whether this interpretation of §440 of the Florida Statutes is permissible was certified by the Court to the Florida Supreme Court as a question of great public importance. The decision was far from unanimous with multiple concurrences, and a strong dissent from Justice Wetherell.
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