The First District Court yesterday handed down it's En Banc decision in Westphal v. St. Petersburg. This opinion has been much anticipated, after the Court decided in February 2013 that part of section 440.15, Florida Statutes was unconstitutional. Since that time, there has been conjecture and discussion throughout Florida, and much of the larger workers’ compensation community across the country.
This Blog is reporting the Court’s decision, and some of the history around it. At the conclusion, some questions are raised. Neither the author nor the OJCC has or will take any position on those questions in this kind of forum. They are presented as discussion only, and for the consideration of the workers’ compensation community.
I say "was" unconstitutional because the Court's decision yesterday did not conclude that the statute is unconstitutional. There will be those who will find curiosity in that distinction. The three judge panel who decided Westphal last February was unanimous in their conclusion that the statute was unconstitutional. The En Banc decision yesterday included a majority opinion by Judge Padovano, a concurrence by Judge Benton, a concurrence by Judge Wolf, a concurrence in the outcome with dissent by Judge Thomas and a dissent by Judge Wetherell. None of the judges concluded that the provisions of section 440.15, Florida Statutes are unconstitutional.
The decision provides interesting reading, in the majority opinion and the concurring and dissenting opinions. The history of yesterday's En Banc decision will be written about a great deal in days, weeks, and months to come. There are many perspectives on the underlying facts and the Court's conclusions. Some history is related today.
There used to be longer potential periods of entitlement to indemnity benefits. In 1993 Florida Statute 440.15 was amended, as were many other sections of the law. These have been referred to as "sweeping changes." The 440.15 change restricted temporary indemnity to 104 weeks. Anytime there is a limitation imposed, there will be cases that do not fit neatly within such limitation. This was no exception, and by 1998 the issue of the 104 week limitation reached the First District Court.
The initial analysis was in City of Pensacola Firefighters v. Oswald, 710 So.2d 95 (Fla. 1st DCA 1998). There, Judge Benton wrote for the Court. The conclusion was that an injured worker might reach the end of that 104 week period and still not have reached maximum medical improvement ("MMI"). The Court concluded that achievement of MMI was a prerequisite for an award of permanent indemnity benefits, such as permanent total disability ("PTD"). Accepting that some injured workers might face a "gap" in indemnity benefits at 104 weeks, the Oswald Court created a solution, an "exception" which it intended to fix the perceived flaw.
The Oswald Court concluded that an injured could be awarded PTD after 104 weeks of temporary benefits if the worker could show “total disability upon cessation of temporary benefits.” and that such disability “will be existing after date of maximum medical improvement.” Judge Padovano wrote a concurring opinion in Oswald.
Some years later, Judge Rosen heard a claim in Jacksonville. He concluded that an injured worker, Mr. Hadley, had not proven entitlement to PTD under the Oswald exception. He nonetheless concluded that the Legislature could not have intended that there be a gap between temporary and permanent benefits. He therefore awarded Mr. Hadley PTD benefits. The Court reviewed that decision in Matrix Employee Leasing, Inc. v. Hadley, 78 So.3d 621 (Fla. 1st DCA 2011). This was an En Banc decision, in which all judges of the First District Court participated. The Hadley Court concluded that Judge Rosen was in error, and reversed his award. The Hadley decision essentially upheld the "narrow exception" of Oswald. The Hadley decision was written by Judge Wetherell, and included a dissenting opinion written by Judge Padovano.
A few years pass, and Judge Rosen transferred to Pinnellas County when Judge Hafner retired. He then presided over the trial in Westphal v. City of St. Petersburg. He concluded that Mr. Westphal faced a gap in indemnity benefits, similarly to others in Oswald and Hadley (and other cases that had been decided and or compromised on those authorities). However, Judge Rosen followed the Hadley decision. The Hadley opinion succinctly stated that trial judges are obligated to follow the rulings of the appellate courts: “JCCs are bound by the decisions of this court interpreting the Workers’ Compensation Law unless and until the decision is overruled by the Florida Supreme Court or this court recedes from the decision en banc.” Essentially, JCCs must follow the rulings of the appellate court.
The First District reviewed Judge Rosen’s denial of PTD in Westphal. In February 2013, a three judge panel found the indemnity statute, limiting to 104 weeks, unconstitutional. That decision was written by Judge Thomas; Judge Davis and Judge Padovano agreed with the decision. That panel essentially concluded that the “gap” between temporary and permanent indemnity, in the situation of an injured worker who reaches 104 weeks of benefits and has not reached MMI, was unconstitutional “as applied” to that injured worker, and others “similarly situated.”
The City of St. Petersburg sought review by the Court En Banc, which was granted. Various other non-parties participated in the En Banc debate by filing “friend of the court” or “amicus curie” briefs advocating various outcomes. Much of the state watched, waiting for the oral argument En Banc. That hearings was, however, never to come. The Court, instead, issued its En Banc decision on September 23, 2013 without further oral argument. That decision yesterday receded from the Court’s decisions in Oswald and Hadley. That decision yesterday receded from the panel decision that held the 104 week limitation unconstitutional. That decision yesterday concluded that the expiration of 104 weeks of temporary benefits results in an injured worker essentially achieving “statutory MMI;” that is, the law results in MMI despite medical conclusions that might be contrary to, or at least unsupportive of an MMI determination.
There will be much discussion of statutory MMI in coming days, weeks, and months. There are those who will express criticism of this label. There are those in the medical community who would tell us that MMI is not a medical term, however. They would tell us that any such conclusion is a legal conclusion and a legal term and is needed for those in the legal profession. They might tell us that such a conclusion as MMI has little or no relevance to the purely medical context of providing care and treatment to people. As such, if it is merely a legal term, is statutory MMI really different than a medical opinion of MMI, a legal term upon which the judicial and legislative systems place significance? There is discussion of this in the Westphal opinions.
There will be much discussion to come on the concept of stare decisis. This is a legal maxim which holds that courts should follow prior court decisions. It is a venerated rule that is at the very root of American jurisprudence. Every lawyer is trained to respect and even exalt it. It is at the root of predictability and consistency in the law. When a court recedes from precedent like Oswald and Hadley, the predictability of the law is affected. Since 1998, attorneys have advised their clients based upon the Court’s holding in Oswald. Clients have made decisions, important decisions, based on the law as held by the Court. Those people now know that their decisions were based on conclusions which the Court now rejects. There is interesting discussion of this concept in the Westphal opinion delivered yesterday.
There will be much discussion to come on whether JCCs “are bound” by the rulings of the appellate court. Will JCCs be persuaded that decisional authority with which they are presented are flawed? Will attorneys persuade JCCs that those authorities, in some instant context, are no more controlling than Oswald or Hadley (an En Banc decision of the controlling court, whose life was but two years before ended by the En Banc decision yesterday)? In other words, will attorneys convince JCCs not to follow precedent, on the premise that in a particular case that precedent is not controlling or can be distinguished or should be changed?
There will be much discussion to come. The foregoing are merely questions which came to my mind as Westphal roiled through my thoughts over the last 18 hours. There may be other questions. There is much in the Westphal opinion that is worthy of consideration, and it will be discussed for weeks to come.