Workers' Comp Case to Watch

Repeal Workers’ Comp Reforms Or Allow Worker Lawsuits

By: | January 21, 2014

Roberto Ceniceros is a retired senior editor of Risk & Insurance® and the former chair of the National Workers' Compensation and Disability Conference® & Expo. Read more of his columns and features.

State reforms could whittle down workers’ compensation benefits to the point of making civil litigation necessary to fairly compensate injured workers.

Applicants’ attorneys are asking the Florida’s Supreme Court for just such a conclusion in a workers’ comp benefits dispute case.

The case has attracted nationwide attention, with national employer and insurer associations supporting the payer in the dispute and attorney groups supporting the claimant.

The case involves Bradley Westphal, who worked as a St. Petersburg firefighter and paramedic. In 2009 he suffered severe back and knee injuries that left him permanently disabled. He required back surgery and other treatment.

When his temporary total disability benefits ran out under Florida’s 104-week cap, he brought a legal action against the City of St. Petersburg, arguing that the cap is inadequate.

As far back as the early 1960’s, workers in Florida were protected by a 350-week cap. But over time, that cap was reduced by legislative reform action to 104 weeks.

Westphal ‘s attorneys argue in a Jan. 15 brief filing in the Florida Supreme Court that the high court should overturn a state appeals court ruling handed down last year holding that the 104-week time limit on TTD benefits is constitutional.

If the court does not strike down the 104-week cap, it should find that Florida’s workers’ comp law is no longer an adequate remedy for injured workers, the brief urges.

I suspect that should Westphal’s attorneys prevail with that argument, attorneys in other states will make similar appeals. As mentioned above, the case has drawn national attention, including that of the American Association for Justice, a Washington D.C.-based trial-bar group, which is filing an amicus brief.

In February 2013, Florida’s 1st District Court of Appeal ruled the 104-week limit is unconstitutional and granted 260 weeks of benefits to Westphal. But in September the court overturned, finding the cap constitutional.

It’s now up to Florida’s Supreme Court to settle the case, but Westphal’s attorneys argue, among other things, that the 104-week cap is not an adequate remedy for the claimant’s injuries considering that Florida law at one point provided the 350 weeks of TTD benefits.