By Irene Rodriguez and Anthony V. Cortese
There were three pivotal appellate decisions in workers’ compensation this year. The Hillsborough County Bar Association Workers’ Compensation Section has scheduled a luncheon seminar on December 11 where top local attorneys, including some of those handling these three important cases, will address these decisions and other pending appellate cases. We invite interested attorneys to mark your calendars and join us at additional seminars on February 4, 2014, and April 23, 2014.
In Westphal v. City of St. Petersburg, 1D12-3563 (1DCA, February 28, 2013), (Westphal I) affirmed, on other grounds, en banc, 1D12-3563 (1DCA, September 23, 2013) (Westphal II) the First District Court of Appeals attempted to correct the gap in indemnity benefits that occurs when statutory maximum medical improvement (MMI) occurs before actual MMI. In 1994, temporary benefits were reduced to 104 weeks from 260 weeks. After 104 weeks, an individual could receive additional full indemnity benefits only by proving entitlement to permanent and total disability on the date of actual maximum medical improvement from all work-related conditions. The burden of proof was to prove a speculative medical and vocational condition at a speculative future MMI date, which is practically impossible. Westphal I determined that to rectify this, the 104-week limitation should be unconstitutional and the prior statute, which allowed for 260 weeks of temporary benefits, should be reinstated prospectively.
The ruling that the law was unconstitutional was revisited by the First District by an en banc panel. Westphal II first ruled that the 104-week limitation was constitutional. Westphal II then ruled that if a person is totally disabled at statutory maximum medical improvement, the person is entitled to permanent and total disability benefits. This is a major change in the law.
The other major decision in 2013 is Jacobson v. Southeast Personnel, 1D12-1103 (June 5, 2013). In Jacobson, the question was about the constitutionality of the part of the statute that says that a claimant’s attorney may only receive a fee based on a percentage of benefits obtained on behalf of the claimant. The facts involved a situation where the claimant’s attorney was defending the claimant against a petition by the employer/carrier for costs after litigation. The claimant’s counsel requested a retainer to be approved to allow a reasonable fee to be paid, and the judge of compensation claims refused. The law is that a claimant’s attorney can be paid only a statutory percentage of benefits obtained. In a cost claim against the claimant, the claimant cannot be awarded any benefits, so his or her attorney may not be paid. The court held the act unconstitutional at this time with regard to the defense of a petition for costs.
The changes in Westphal II will have a dramatic impact. The willingness of the First District in Westphal I and Jacobson to consider the unconstitutionality of recent legislation may signal more to come in pending cases on appeal.
