Constitutional Challenge to Workers' Compensation Statute Pending Before the Court

By Herron Bond
The Supreme Court of Florida has accepted discretionary jurisdiction to resolve constitutional challenges to the First District Court of Appeal’s en banc ruling in Westphal v. City of St. Petersburg, 122 So. 3d 440 (Fla. 1st DCA 2013) and section 440.15 of Florida’s Workers’ Compensation statute (Ch. 440, Fla. Stat.). Both parties in the dispute contend that the First DCA’s en banc opinion violates the due process clause (Amend. XIV, U.S. Const.) and the doctrine of separation of powers (Art. II, § 3, Fla. Const.) by impermissibly modifying Florida’s Worker’s Compensation statute to include a new category of disability known as temporary permanent total disability. The Petitioner also argues that the 104 week limitation on temporary total disability benefits found in s. 440.15, F.S. violates the due process clause and the access to courts provision in Art. I, § 21, Fla. Const. by creating an inadequate and fundamentally unfair remedy for injured workers.
This dispute arose when Bradley Westphal, a firefighter for the City of St. Petersburg, was injured while stepping off of a firetruck in 2009. The City paid temporary total disability benefits to Westphal for the statutory maximum of 104 weeks and promptly ceased payment because Westphal had not reached maximum medical improvement (MMI) and, thus, could not show that he was entitled permanent total disability benefits. Nine months later, when Westphal reached MMI and was able to show that he was permanently totally disabled, the City resumed payment of benefits to Westphal, this time in the form of permanent total benefits.
Westphal filed suit seeking compensation for the 9 month gap in benefits that began after the expiration of the 104 week period and lasted until the day he was able to establish factual MMI. The Judge of Compensation Claims found that Westphal was not entitled to benefits during the 9 month gap because he had not reached MMI at that time. On appeal, the First DCA issued a panel decision reversing the lower court after finding that the 104 week limit on temporary benefits violates the access to courts provision of the Florida Constitution. The City sought rehearing and, in an en banc opinion, the First DCA departed from the panel’s ruling on the constitutionality of the statute. Instead, the Majority found that Westphal was entitled “temporary permanent total disability” benefits, a new category of benefits created by the court, because the statute permits an injured worker to claim MMI as a matter of law when the employee has reached the 104 week limit on temporary benefits.
In his Initial Brief to the Supreme Court of Florida, Westphal first argues that the creation of “temporary permanent total disability” by the First DCA is unconstitutional. Westphal claims that the adoption of a category of benefits that was not included in the statute is an example of “judicial legislation contrary to separation of powers” because it encroaches on the power of the legislature. Furthermore, Westphal claims that the new category is a deprivation of due process because 1) it is based on the invalid presumption that one reaches MMI at the end of the 104 week period, regardless of whether the employee has actually recovered; 2) it is “based on a physician rating permanent impairment 6 weeks before the 104 weeks anniversary of the accident, even though the employee has not reached MMI;” and 3) it omits the vocational test, which would require an employee to show “that the employee is not able to engage in at least sedentary employment within a 50-mile radius of the employee’s residence.”
The City agrees with Westphal’s argument that the creation of “temporary permanent total disability” violates the doctrine of separation of powers and due process of law. The City also argues that the First DCA’s decision violates the judicial policy of stare decisis, pointing to Matrix Employee Leasing, Inc. v. Hadley, 78 So. 3d 621 (Fla. 1st DCA 2011), which held that a claimant is not entitled to permanent benefits if he has not reached MMI, and City of Pensacola Firefighters v. Oswald, 710 So. 2d 95 (Fla. 1st DCA 1998), which held that a claimant who has not reached MMI can obtain permanent benefits if he can show that he will be permanently disabled upon reaching MMI. In this case, Westphal had not reached MMI at the end of the 104 week period and the lower court had already ruled that Westphal did not show that he would be disabled upon reaching MMI. Thus, the City argues that First DCA’s ruling directly conflicted with Hadley and Oswald.
Next in his Initial Brief, Westphal claims that the statutory 104 week limit for temporary total benefits violates several constitutional provisions because it is an inadequate remedy for employees. Westphal points to several factors to show that the provision is inadequate and unfair: 1) Florida’s original Worker’s Compensation Law included a 350 week limit for temporary disability; 2) Florida’s 104 week limit is tied for least employee-friendly in the United States; 3) Florida no longer mandates full medical benefits, which could offset the harsh limit on temporary benefits; and 4) Florida has repealed the Florida Occupational Safety & Health Act, so there are fewer accident prevention measures to mitigate the limitation.
Pointing to Kluger v. White, 281 So. 2d 1 (Fla. 1973), Westphal claims that the disparity between the current 104 week limit and the original 360 week limit from the 1967 Workers’ Compensation Law violates Florida’s access to courts provision. In Kruger, the Court held that “the test of constitutional validity in terms of access to courts is a comparison of a current statutory remedy to the common law and statutory remedies that existed in 1968 when the people voted for access to courts.” The City responds that the provision does not violate the access to courts provision because it does not abolish, but merely alters a preexisting right, satisfying Kruger.
Westphal also claims that the provision should be struck down on the grounds of fundamental fairness pursuant to the due process clause. In response, the City cites Ferguson v. Skrupa, 372 U.S. 726, 730 (1963), in which the Supreme Court of the United States ruled: “The doctrine that prevailed in Lochner… and like cases–that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely–has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.” Thus, the City claims that the statute cannot be struck down under the 14th Amendment unless “it is clear that the law is not in any way designed to promote the people’s health, safety or welfare” or “the statute has no reasonable relationship to the statute’s avowed purpose.”
Finally, the City argues that the en banc panel correctly avoided reaching the constitutionality of the statute. The City claims that addressing constitutionality would have been premature because the court only needed to determine whether Westphal satisfied the Hadley/Oswald framework. Further, the City claims that the legislature should be given deference because the provisionpasses rational basis review, a low level of scrutiny under which only the most egregious government actions are found unconstitutional.