Richard A. Sicking
Richard A. Sicking (J. Albert Diaz)


Case No.: SC13-1930

Case type: Workers’ compensation

Court: Florida Supreme Court

Jurisdiction accepted: Dec. 9, 2014

Author of en banc opinion below: Judge Philip Padovano

Lawyers for petitioner: Richard A. Sicking, Tobey, Chait & Sicking, Coral Gables; Jason L. Fox, Carlson & Meissner, Clearwater

Lawyers for respondents: John C. Wolfe, City Attorney, and Kimberly D. Proano, Assistant City Attorney, St. Petersburg; Allen C. Winsor, Solicitor General, and Rachel E. Nordby, Office of the Attorney General, Tallahassee

Originating court: First District Court of Appeal

The Florida Supreme Court is staring at a gap in the workers’ compensation law that applies to the state’s biggest employer—government.

When the justices blink, possibly later this year, the law’s permanent disability coverage may be strikingly different. It’s likely that workers’ advocates, or employers and their insurance carriers, will complain they’ve been cheated. Both may protest.

“I know it’s a coin with two sides. How much do injured people need, and how much can society afford to pay them?” asked Richard Sicking, lead appellate counsel for Bradley Westphal, a disabled former St. Petersburg firefighter whose case is before the high court.

“These are legitimate conflicting interests, and there is no answer,” said Sicking of Touby, Chait & Sicking in Coral Gables.

The stakes are so confused, the parties even agree on this: The First District Court of Appeal assumed a lawmaking role, violating the separation of powers doctrine.

The First District grappled with filling the gap in the workers’ compensation law, Florida Statutes Chapter 440. The law doesn’t provide for benefits after 104 weeks when a state employee is totally disabled by a workplace injury but unable to show maximum medical improvement, the trigger for permanent benefits.

That statutory void and a complicated medical condition cost Westphal, who hurt his back on a routine call and needed spinal surgery, nine months of benefits. If his former municipal employer wins, the 104-week cutoff is constitutional, and he’s out of luck, along with all others in his situation.

Competing Agendas

If Westphal wins, the provision as applied to him is unconstitutional, and he’ll be entitled to the 260 weeks of coverage under the previous law. That was the implication of the First District panel decision.

Or, under a judicial creation called “temporary permanent total disability,” he’s covered to age 75. That’s the First District en banc majority’s suggestion.

On Sept. 23, the court also published a concurrence, a concurrence in result, a concurrence in result only and partial dissent, and a dissent signed by three judges. To reach its result, the majority had to take the highly unusual step of retreating from its own precedent.

The Supreme Court could devise a fourth resolution, Sicking said.

“Anybody trying to predict the outcome has a better chance of picking the numbers in the lottery.” Oral arguments will happen in June at the earliest.

Workers’ compensation has a dramatic history dating to March 25, 1911, when fire rampaged through the Triangle Shirtwaist Factory in Manhattan, killing 146 female garment workers. The 10-story building was locked and full of flammable materials. Many of the women jumped to their deaths from the ninth floor.

Soon the public was clamoring for workplace safety protections. In 1914 New York started a national trend by passing the first workers’ compensation law to discourage hazardous conditions and help injured workers recuperate.

“Workers’ compensation was a law to relieve human suffering,” Sicking said. “It was not supposed to be a business, but this is America, and we’ve turned it into a business.”

The Florida Legislature’s tilt toward business has produced changes in the law that slashed employers’ premiums while cutting workers’ benefits.

1968 V. Today

A friend-of-the-court brief filed by Florida Workers Advocates, a plaintiffs lawyers group, compares coverage in 1968 when the state Constitution was revised with today’s version:

• Temporary disability benefits lasted 350 weeks; today they end at 104 weeks.

• The injured worker could select a physician; today the insurance carrier has much greater leverage in making that choice.

• Limiting benefits due to a worker’s preexisting medical condition was difficult; today it’s relatively easy.

• No distinction was made between physical and mental work-related injuries; today benefits for mental injuries—even if they’re permanent—stop six months after the worker reaches maximum medical improvement.

“The compensation benefits now afforded injured workers have been so drastically reduced … as to cause them to be effectively eliminated or illusory,” the amicus brief concludes.

Empathy for injured workers and attitudes toward the Legislature color the opinions in the Westphal case.

The First District panel ruled the statutory coverage scheme violated Westphal’s constitutional right to access the courts. Workers’ compensation is supposed to obviate the need for tort suits.

“The natural consequence of such a system of legal redress is potential economic ruination of the injured worker, with all the terrible consequences that this portends for the worker and his or her family,” Judge Bradford Thomas wrote.

When the full court revisited the case, deference to the Legislature, along with an obvious desire to remedy an injustice, prevailed.

Nothing in the text of the law “suggests that the Legislature intended to create a gap in which some totally disabled workers will be ineligible to apply for disability benefits,” Judge Philip Padovano wrote for the eight-judge majority.

The judges thereby justified their creation of “temporary permanent total disability” as a logical extension of the Legislature’s design.

Will the Florida Supreme Court embrace the First District majority’s reasoning?

If it does, the Florida Workers Advocates amicus brief warns, the Legislature could just turn around and repeal the court’s construction of the statute as it has done before.

Sicking recalled how the Legislature let Florida’s version of the federal Occupational Safety and Health Act lapse out of sheer end-of-session negligence.

“We’re the only state with a repealed workplace safety act,” he said. “Why would anybody do that? Who writes this stuff?”