By: Frank Garcia

As you are aware, this summer the Florida Supreme Court issued its ruling in the Westphal case holding that injured workers are eligible for up to 260 weeks of TTD benefits following an industrial accident.  The Florida Supreme Court held that the reduction of TTD benefits from 260 weeks to 104 weeks after the 1993 law changes were unconstitutional.  The Court reasoned that the diminution of TTD benefits deprived injured workers access to court for their injuries.  The Westphal decision was specifically limited to TTD benefits, but the rationale of the decision appeared to apply to TPD benefits as well, although the Court did not address that point in their decision.   

Since the Westphal decision was rendered, several Judges of Compensation Claims have addressed whether Westphal applies to TPD benefits as well, and they have reached different conclusions.  Judge Holley in Jacksonville and Judge Hill in Gainesville interpreted Westphal broadly to increase TPD benefit eligibility to 260 weeks.  Judge Humphries in Jacksonville and Judge Spangler in Tampa reached the opposite conclusion, and narrowly interpreted Westphal to only apply to TTD benefits.  This created confusion and inconsistent rulings throughout the state. 

On November 10, 2016, the Florida First District Court of Appeal provided some clarity on this issue.  In the case of Jones v. Food Lion, the court held that the Florida Supreme Court’s decision in Westphal was applicable to both TTD and TPD benefits, and the remedy allowing for 260 weeks of temporary benefits applied.  This decision is not yet final and can be appealed to the Florida Supreme Court.  However, that is unlikely given the strong language of the Florida Supreme Court in Westphal and the consistent application of its reasoning to all temporary indemnity classifications. 

Accordingly, we should be prepared to assess all claims moving forward based on the potential for 260 weeks of combined temporary benefit (TTD and TPD) exposure.  Given the extension of all temporary indemnity benefits to 260 weeks, we need to be more aggressive in communicating with doctors to push for overall MMI and working with employers to offer light duty work when available to limit temporary indemnity exposure.  We also need to review any case in which an injured worker remains on temporary restrictions and is not at MMI despite being paid 104 weeks of benefits, as that injured worker will now be eligible for ongoing TPD benefits up to 260 weeks.  In summary, injured workers will now be eligible for 5 years (260 weeks) of temporary indemnity eligibility for any claims moving forward in the State of Florida. 

If you have any questions, or would like to schedule a conference to discuss its impact on any of your cases, please feel free to contact our office.  You can count on Moran Kidd to keep you updated on the ever changing world of Florida’s workers’ compensation law, as well as continuing to aggressively defend claims on your behalf. 

11/11/2016 at 1:48 PM by morankidd | Categories: Articles