By JIM SAUNDERS
THE NEWS SERVICE OF FLORIDA
For the second time in less than two months, the Florida Supreme Court on Thursday ruled that part of the state’s workers’ compensation insurance system is unconstitutional.
Justices, in a 5-2 decision, ruled in favor of Bradley Westphal, a St. Petersburg firefighter who suffered a severe back injury while on the job in 2009. The case focused on a workers’ compensation law that led to Westphal’s benefits being cut off after two years, creating what the Supreme Court described as a “coverage gap.”
“As applied to Westphal, the current workers’ compensation statutory scheme does not just reduce the amount of benefits he would receive … but in fact completely cuts off his ability to receive any disability benefits at all,” said the 34-page majority opinion written by Judge Barbara Pariente and joined fully by Chief Justice Jorge Labarga, Peggy Quince and James E.C. Perry. “It does so even though there is no dispute that Westphal remained a severely injured and disabled firefighter under active treatment by doctors the city selected for him.”
The ruling was a victory for labor groups and plaintiffs’ attorneys, who have long argued that the Legislature has gone too far in taking away the rights of injured workers in an effort to hold down insurance costs for businesses. The Supreme Court ruled in April that a law limiting attorney’s fees in workers’ compensation cases was unconstitutional.
In a concurring opinion Thursday, Justice R. Fred Lewis wrote that he thinks the broader workers’ compensation system “is fundamentally unconstitutional and in need of legislative — not judicial — reform.”
“I have a full appreciation for the judicial attempts to save the workers’ compensation statute from total disaster,” Lewis wrote. “Florida needs a valid workers’ compensation program, but the charade is over. Enough is enough, and Florida workers deserve better.”
But the Florida Chamber of Commerce, the National Federation of Independent Business and the Property Casualty Insurers Association of America quickly issued statements warning that Thursday’s ruling could hurt businesses. Florida Chamber President and CEO Mark Wilson, for example, described it as a “further sign that Florida’s workers’ comp system is under attack.”
The Westphal case dealt with one component of the system, which generally is designed to get injured workers back on the job while trying to minimize costly legal battles. Disputes about worker benefits are handled outside the typical civil courts system.
Westphal was paid what are known as “temporary total disability” benefits for two years, which has been the limit for those types of payments under state law. But when Westphal sought to receive permanent total disability benefits, a judge of compensation claims ruled that the request was premature because it had not been determined that Westphal had reached “maximum medical improvement.” That created a gap until Westphal could get permanent benefits several months later.
Thursday’s ruling found that Westphal had been denied his constitutional right of access to courts because he lost benefits without adequate legal redress under the workers’ compensation system. The majority ordered that the state return to a pre-1994 law that allowed five years of temporary total disability benefits in situations such as the Westphal case.
But Justice Charles Canady, in a dissent joined by Justice Ricky Polston, indicated that the court should look to the Legislature’s policy-making powers in deciding the issue. While lawmakers reduced the number of weeks of benefits, Canady wrote that they had increased compensation amounts.
“(The) decision to substantially increase weekly compensation for temporary total disability and to reduce the number of weeks that such benefits are paid is a trade-off that is a matter of policy within the province of the Legislature,” Canady wrote. “The Legislature — rather than this court — has the institutional competence and authority to make such policy judgments.”
Thursday’s ruling will add to an already-building legislative debate about changes in the workers-compensation system. Business groups have signaled they will seek legislative changes to address the April Supreme Court ruling on attorney’s fees — and are almost certain to do battle with plaintiff’s lawyers and labor groups.
The National Council on Compensation Insurance, which proposes workers’ compensation rates for the insurance industry, said last month that rates should increase 17.1 percent, with most of that due to the April ruling. It remains unclear whether regulators will go along with that proposal.