Representing the American Association for Justice, CCL’s Andre M. Mura filed an amicus curiae brief in the Florida Supreme Court, urging the Court to find that an injured worker who is totally disabled and unable to work but still improving medically is entitled to permanent total disability benefits at the expiration of temporary total disability.

In this case, Westphal v. City of St. Petersburg, No. SC13-1930, a firefighter suffered serious injuries in the course of employment. After receiving 104-weeks of temporary total disability benefits, which is the statutory maximum, Westphal applied for permanent total disability but was rejected because, despite still being totally disabled and unable to work, a medical expert opined that his medical condition might improve. Westphal was thus denied any benefits despite his injury and inability to work until he could show that he had reached maximum medical improvement. A three-judge panel of the First DCA ruled that the Workers’ Compensation Law violated the Florida Constitution’s right of access to courts, because the remedies available today were inadequate when compared with common law and statutory remedies available when the constitutional right was adopted. The First DCA then granted en banc review. After withdrawing the panel decision, the en banc court held that the Workers’ Compensation Law was properly understood to allow injured workers who remain totally disabled to apply for permanent total disability benefits at the expiration of temporary total disability benefits.

The Florida Supreme Court has agreed to review this decision. The AAJ amicus brief filed by CCL supports the ruling of the en banc First DCA. “Rather than denying injured workers any disability benefits for an indefinite period despite their being totally disabled and unable to work, and denying them any retroactive benefits if it is later evident that they had been already made a full medical recovery,” the brief argued, “the en banc First DCA’s interpretation of section 440.15(3)(d) will permit injured workers who are totally disabled and unable to work, but still possibly improving medically, to be deemed at maximum medical improvement by operation of law, and thus be eligible for permanent total disability benefits.  Put simply, totally disabled injured workers, who are required by law to give up their common law right to sue for full compensation in return for a prompt assurance of benefits, will in fact be assured benefits promptly.” Alternatively, the brief argued that, if the statute must be read to deny such benefits to injured workers, then the Workers’ Compensation Law violates the Florida constitutional right of access to courts.