Time Limit and Gap in Comp Benefits Not Unconstitutional, Florida Court Says

What happens when a worker’s injury needs follow-up surgery many years later, requiring the employee to miss months of paychecks?

In Florida, he’s probably out luck if he’s hoping for workers’ compensation wage-loss benefits. But the law that created that gap in coverage and a statute of limitations on benefits is not unconstitutional, a Florida appeals court decided last week.

In Ted Doss Jr. vs. United Parcel Service and Liberty Mutual Insurance, the 1^st District Court of Appeals was asked to equate Doss’ situation with that of Bradley Westphal, the claimant in one of the most significant workers’ comp court decisions in Florida in the last two decades, Westphal vs. the City of St. Petersburg.

“It is clearly true that, like the injured worker in Westphal, claimant’s eligibility for temporary total disability benefits terminated under the statute without regard to his actual disability from the compensable injuries,” Appeals Court Judge Clayton Roberts wrote in the Nov. 10 opinion. “But the ultimate question here is whether the statute, with this 401-week limitation, ‘passes constitutional muster'” and preserves the workers’ comp system as a viable remedy and reasonable alternative to tort litigation.

“Applying this standard to these facts, we conclude that this statute is constitutional as applied to claimant,” the court said.

Doss, while working for UPS in 1997, sustained a knee injury on the job. He received authorized medical care and eventually returned to work, the court explained. Some 19 years later, he was authorized for arthroscopic knee surgery and had to recuperate at home, from September 2016 to January 2017.

The employer and insurer paid no temporary disability benefits, even though Doss missed 15 weeks of work while he recovered from the surgery. A judge of compensation claims denied Doss’ claim for TTD, noting that state law limits benefits to 260 weeks of payments, all of which must be made within 401 weeks, just under eight years, of the date of injury.

Doss’ attorney appealed and argued that the statute of limitations left a big gap in benefits and deprived the worker of his constitutional right to seek legal remedy. The 1^st DCA, which handles workers’ comp appeals, disagreed, noting that Doss really didn’t have it so rough.

“In stark contrast to the injured worker in Westphal, claimant here worked for many years after his workplace accident,” Roberts wrote. “He was off work for only four months following his September 2016 surgery and never asserted any related loss in wages.”

Doss had received a 14% impairment rating and continues to work without functional limitations. Doctors have said he has reached maximum medical improvement and is not precluded from pursuing permanent benefits, the court noted. Permanent partial disability would provide significantly less in weekly benefits than would TTD, according to a compilation of state laws done by the Workers’ Compensation Research Institute.

In the famous Westphal decision, the Florida Supreme Court in 2016 declared that the 1997 law that limited TTD to 104 weeks was unconstitutional and violated Westphal’s right to legal remedy in the courts. The Florida Constitution provides that “the courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”

The 1997 reduction of benefits, from 260 weeks to 104 weeks, was so great that it had caused the Florida workers’ comp system to reach a “tipping point” that deprived the worker of basic rights. Westphal, unlike Doss, was severely injured and remained totally disabled after receiving the maximum weeks of TTD benefits, the Westphal court said.

In Doss’ case, “no evidence suggests that any timely tort litigation would have assured claimant any recovery for future damages similar to the benefits sought here,” the 1DCA said.

Amie DeGuzman, who represented Doss in the appeal, declined to comment extensively on the case or say if an appeal to the state Supreme Court is likely, because the appellate court decision is not yet finalized. She did note that few Florida court cases have examined the late-stage gap in benefits that Doss experienced.

Topics Florida