Last week the Florida First District Court of Appeal reversed an earlier significant decision; and in so doing highlighted the inherent conflicts of running a medical benefits system within the confines of a legal, statutorily driven entity. Many will recall that last February the court struck down as unconstitutional a key component of Florida’s workers' compensation reforms dating back to 1994. In the case Westphal v. City of St. Petersburg, the court found that the 104 week limit on Temporary Total Disability benefits was too restrictive and struck that requirement from the law. The case involved a firefighter and paramedic, Bradley Westphal, who was injured on the job, and whose disability extended beyond the 104 week limit. The court opinion declared “When the 104 week limit on Florida's temporary total disability is compared to limits in other jurisdictions, it becomes readily apparent that the current limit is not adequate and does not comport with principles of natural justice”.
I tend to agree that a 104 week limit is too restrictive for injuries to be effectively managed in some cases. However, I did not then understand what “principles of natural justice” really were in the context of constitutional law, nor do I fully comprehend that philosophy today. It appears the court ultimately had the same issue, as it completely reversed itself last week by stating that the 104 week limit is not unconstitutional after all.
Oops.
While this seems like a big victory for employers and carriers, it really highlights the problems we face managing medical treatment and guidelines within a defined legal structure. If ever there were a square peg crammed into a round hole, this is it. Florida attorney George Kagan, of the law firm MKRS, kindly made the analysis they issued to clients available to our site for publishing yesterday. Kagan does a good job of explaining the decision, and what the ramifications may be for employers, but in so doing displays the ridiculous procedure and terminology (my words, not his) that will now be “part of the dance” going forward for TTD cases that extend beyond 104 weeks in Florida.
Kagan explains that, in addition to restoring the 104 week cap, “the court totally reworks what we do at MMI for the claimant who is still medically improving, receding from important earlier case law on this subject.” It is here we enter the realm of “Legal” MMI versus “Actual” MMI. Cases expected to go beyond the statutory TTD 104 week limit, and thereby being placed at legal MMI, (even though further healing will improve their condition), should be scheduled for a medical review 6 weeks prior to that target date, to determine the extent of disability at the 104 week mark. As Kagan explains, this will put people who are at a certain point of disability at 104 weeks but expected to have improvement beyond that point at the contradictory designation of “temporary permanent total disability”. Administratively, he explains this as, ” ‘PTD — subject to reclassification later’ — on attainment of either a capacity to return to available work, or “actual” MMI, whichever occurs first”.
Ok. Temporary permanent total disability. For those who have reached Legal Maximum Minimum Medical Improvement. I suppose that is better than Actual Minimum Maximum Medical Improvement.
Officer, I was robbed by a tall short thin fat white black man woman. Please catch him her. Quickly.
Kagan explains that the 98th week assessment is critical, saying “If claimant is projected to be and remain “disabled” from all available work on the 104th week, then that’s the “permanent impairment” — that is to say — PTD, until and unless something changes down the line, such as, claimant ceases to be disabled near or at actual, medical MMI – in which case E/C then administratively reclassifies to the newly established PIR”.
We continue to structure and refine, building legal instruments and subsequent systems attempting to manage a complex issue surrounding a simple concept; trying to get an injured worker healed and returned to some functioning capacity. I worry that the more complex our terminology, the heavier the legal structure defining procedure and principle, the further we will find ourselves from that simple goal. Is it any wonder we remain confused?
These are human lives and livelihoods in the balance, and we are attempting to find the perfect yet unattainable equilibrium meeting the needs of all concerned. In the end analysis, it appears to shed a little light on the justice's initial determination regarding “principles of natural justice”. Even they apparently ultimately determined that this is the written law, and as we know all too well, there is no room for principles of natural justice in the written law of man.