Friday, April 26, 2013

Westphal - Use A Bigger Hammer

The recent Florida 1st District Court of Appeal's decision in the Westphal case, and the action of the court to rehear it en banc, is probably the most exciting workers' compensation activity in the state since the reforms of 2004.

The Westphal case has raised emotions in Florida and is probably one of the most divisive court rulings to come out of the courts of appeal in some time.

To the uninitiated, Westphal was a firefighter who sustained significant injuries and was not declared to have reached maximum medical improvement (MMI) prior to reaching the 104 week cap on temporary total disability indemnity benefits.

The 1st DCA in an emotionally charged panel opinion declared the cap unconstitutional because it was "fundamentally and manifestly unjust" although, as I understand the underlying facts from others, Westphal was then put on permanent disability indemnity advances and apparently continues to receive advances pending the determination of this case.

In the meantime, the roar over this controversial decision, which some believe was inappropriate legislating from the bench, had grown so loud that the court announced that it would rehear the case en banc, meaning that all of the justices that sit at the bench in the 1st DCA district would weigh in with their opinions, rather than just the three members of the panel that issued the original decision.

The list of interested persons and entities jumping into the fray with amici brief requests is impressive, including amici brief requests from both the House and the Senate of the Florida legislature.

Other amici include the Associated Industries of Florida; the Florida Chamber of Commerce; the Associated Builders and Contractors of Florida; the Property Casualty Insurers Association of America; the Florida Justice Reform Institute; Publix Supermarkets; United Parcel Service; the Florida Roofing, Sheet Metal and Air Conditioning Contractors Association; the Florida Retail Federation; the American Insurance Association; the National Federation of Independent Business; the Florida United Business Association and the Florida Association of Self-Insureds all opposing the court's ruling.

Supporting the courts ruling include The American Association for Justice, Florida Workers' Advocates, the Florida Justice Association and the Police Benevolent Association.

The emotion that the Westphal case has elicited is evident in the briefs of the opposing amici.

The Associated Industries amicus brief insists that the theory of "natural justice" used by the 1st DCA to declare the cap unconstitutional is an "anachronistic and imprecise equitable doctrine [that] may not be used to invalidate a lawfully adopted statute."

Westphal's attorneys responded to the Associated Industries brief last Friday, insisting that "natural justice" is better understood as "an expression of fundamental fairness," which is "the very essence of constitutionally guaranteed due process of law."

Both sides have their points and we've all seen instances where situations arise that justify either argument - there are the claimants who, if based on generally accepted principals of medicine, have no reason to be temporarily disabled for more than 2 years. And there are cases where the injuries are so serious, but medical improvement continues to be noted, that additional time to reach a point where there is no further appreciable gains is needed.

Most cases, and I'd venture to say the vast majority of cases, will never have these issues.

The Westphal situation makes two points very clear: 1) there are ALWAYS exceptions that don't fit nicely into the law; and 2) workers' compensation is emotionally charged and divisive.

I don't know how the court is going to rule and I don't have an opinion one way or the other as to how it should rule.

My grandfather, who was a master diesel mechanic back in the days when trades were respected, used to joke, "if it doesn't fit ... use a bigger hammer!"

I have faith. Florida will figure it out - and use a bigger hammer.

1 comment:

  1. Putting aside the legal bickering and arguments,  Westphal ---plain and simple---is about power and money.   It is about Employers and Insurance companies trying to  keep what their  money  bought (and keeps on buying) with the business controlled Florida Legislature: the power to control  claims for workers compensation by eliminating them quickly and cheaply.    Unfortunately,  we won't see in any court decisions  discussing what should  be dubbed "Florida's dirty little secret".     Starting  in 1994 and solidified in 2003 by a series of "reforms" to the workers compensation law,  Florida's  business backed legislature   gave  insurance companies almost unfettered power  to control   Claims in a three pronged strategy:  
               1.  Limit the number of weeks a worker can  collect wage replacement benefits; 
                  (Westphal issue)
              2.  Give the insurance companies the power to limit an injured workers medical care to treatment by "insurance company" doctors; and, 
              3.   Take away an injured workers ability to contest the insurance companies denial of or refusal to pay benefits by limiting the workers attorney's fees (The fees of the attorney representing the insurance company are of course not limited). 

     In  fact, this strategy  has been so successful that in a number of cases,   injured workers have been DETTERED  from even pursuing a comp claim with the risk of employer retaliation and the distinct probability that they will receive substandard care from a provider forced upon them.   Combine all three prongs of the strategy and the insurance company gets what the insurance company wants:  a  quick, cheap settlement with a powerless worker.

    Hopefully, for injured workers in Florida, the Judicial Branch will take it's bigger hammer out of the tool box