In many respects, workers’ compensation benefits in Florida are less generous than those in states that have greater concern for the well-being of injury victims. The failure to cover certain long-term losses caused by work injuries is a defect in the law that the legislature has shown little interest in fixing.
In fact, the Florida legislature made the system decidedly worse when it placed a 104-week limit on a worker’s ability to collect temporary total disability (TTD) benefits when they were not yet eligible for permanent total disability (PTD) benefits. Fortunately, the court system fixed that flaw in the legislature’s thinking. A recent appellate court decision examined the limits of that repair.
Temporary disability benefits are a form of wage replacement that protect workers while they are unable to work but recovering from a work-related injury. Subject to maximum and minimum payments, the TTD benefit is based on two-thirds of the worker’s average wages at the time the injury occurs.
The TTD benefit is paid while an injury is healing. After a point, most injuries either heal completely and the employee returns to work or healing reaches a plateau. That plateau, known as maximum medical improvement, is the point at which the injury has healed as much as it is ever likely to heal.
If a worker is still impaired after reaching maximum medical improvement, the worker becomes eligible for permanent disability benefits. If the worker continues to be incapable of working after reaching maximum medical improvement, the worker may be eligible for PTD benefits. When disabilities do not prevent an employee from working (even if the nature of the work might change), the employee may be eligible for permanent partial disability (PPD) benefits.
The date on which a worker reaches maximum medical improvement usually marks the end of TTD benefits and eligibility for permanent benefits. When workers have an injury that is very slow to heal, however, they run into the time limit that the Florida legislature imposed upon receipt of TTD benefits.
Legislative Cap on TTD Benefits
As it was originally enacted in 1935, Florida law required employers to provide medical care for work-related injuries and TTD benefits for the period during which employees could not work. The benefits were payable for a maximum of 350 weeks and were subject to a maximum total payment. As it evolved, the law also provided for payment of PPD benefits that was determined by a to a schedule or formula.
Since 1979, Florida’s workers’ compensation system has been “reformed” several times, generally with the goal of making the system less expensive for employers and their insurance companies. In 1990, the legislature reduced the duration of TTD benefits from 350 weeks to 260 weeks. Four years later, the legislature decided it had been too generous. It changed the maximum length of time a worker could collect TTD benefits to 104 weeks.
Since TTD benefits were not made available until the employee reached the point of maximum medical improvement, an employee whose injury was still healing but who could not work would have no income after receiving TTD for 104 weeks. If it took another year for the employee to reach maximum medical improvement and the worker was incapable of working during that time, the worker would receive no benefits during the one-year period even if the worker was ultimately found to be permanently incapable of working and thus eligible for TTD benefits.
The Westphal Decision
In 2016, the Florida Supreme Court decided that the legislature had gone too far in its zeal to help insurance companies save money. The court recognized that the workers’ compensation law had strayed from its purpose. The law eliminated the right of employees to sue negligent employees for causing their injuries. In exchange, employees were meant to receive compensation, regardless of fault, that would prevent them from tumbling into poverty because of an injury-induced wage loss. That compromise is the foundation of the workers’ compensation system.
The coverage gap that came into existence after 104 weeks broke the promise that the legislature made to workers. The legislature took away their right to sue employers, but also took away their right to receive compensation after 104 weeks if they had not reached maximum medical improvement. The “reform” assured that workers who were incapable of working would descend into poverty until they reached maximum medical improvement and became eligible for PTD benefits.
The court’s Westphal decision recognized that the Florida Constitution guarantees access to the courts. The legislature removed that right without replacing it with a corresponding benefit for workers who were caught in the “gap” after 104 weeks. The court reinstated the 260-week limit for TTD benefits so that workers with permanent total disabilities will have a reasonable opportunity to collect PTD benefits without experiencing a gap in coverage.
Court Declines to Extend Westphal
Recently, the Florida Court of Appeals concluded that the Florida Constitution does entitle workers to TTD benefits when there is a gap of several years between their injury and their temporary inability to work. The court decision involved a UPS employee named Ted Doss Jr. He sprained his right knee while working in 1997. Workers’ compensation covered his medical care and paid TTD benefits until he recovered and returned to work.
In 2016, Doss had arthroscopic surgery to correct lingering pain related to the 1997 knee injury. Doss was unable to work for almost four months. About a month after he returned to work, he reached maximum medical improvement. However, UPS refused to pay TTD benefits for the four months that he could not work.
Everyone agreed that Doss received TTD benefits for less than 260 weeks after the 1997 injury. However, another provision of the law states that eligibility to collect TTD benefits expires 401 weeks after the injury. Doss argued that limiting his right to collect to collect TTD benefits to a 401-week period was unconstitutional.
The Florida Court of Appeals disagreed. While the Westphal decision addressed a gap in benefits that deprived employees of a remedy for injuries if their injuries did not heal after 104 weeks, the 401-week period for making a claim was essentially a statute of limitations. Legislatures can generally impose a reasonable time limit for commencing claims without depriving injury victims of their right to seek a remedy. Requiring TTD claims to be made within 401 weeks was a reasonable period for cutting off TTD claims.
The lesson to be learned is that not all workplace injuries will have a full remedy in Florida. To maximize available remedies, injured workers should seek advice from a workers’ compensation lawyer as soon as they realize they suffer from a serious injury, particularly when the employer’s insurance company seems unwilling to pay benefits.