Can You Hear Us Now?


By Joan E. Collier

If a tree falls in the forest, does it make a sound? Here’s a corollary: If the court decides something but doesn’t issue a written opinion, do we hear about it?
Let's look at who/what made news, and who/what did not.
Two Florida cases, Castellanos v. Next Door Company, et al. and Westphal v. City of St. Petersburg—both challenging the constitutionality of the state Workers’ Compensation Act and now before the state Supreme Court—have received wide coverage even outside the Sunshine State.

Castellanos asks the court to decide whether the award of attorney’s fees in that case, awarded under an unyielding statutory formula, is adequate, consistent with the access to courts, due process, equal protection, and other requirements of the Florida and Federal constitutions—or so inadequate, in absence of any alternative fee measure, as to violate those constitutional safeguards.

The question before the court in Westphal also focuses on due process and constitutionality: Is a worker who remains totally disabled as a result of a workplace accident, but still improving from a medical standpoint at the time the fixed 104-week limit on temporary total disability benefits expires and deemed to be at maximum medical improvement by operation of law, eligible to assert a claim for permanent and total disability benefits at such time, or is there a gap where no benefits are available, thus suggesting constitutional infirmity?

Just last week, the court accepted jurisdiction of yet another case challenging the constitutionality of a portion of the Florida Workers' Compensation Act, Stahl v. Hialeah Hospital. In this latest case, the injured worker asserts that the statutory addition of $10 post-MMI co-payment and statutory deletion of permanent partial disability benefits rendered the Florida law an inadequate exclusive remedy.
However, there have been other recent efforts toward challenging the status quo that did not make headlines. Why? Because the cases were decided without written opinion.
Such was the cases in a decision handed down on Oct. 6, 2015, in Frost v. Young Animal Hospital.
Frost involved a direct constitutional challenge to current Permanent Impairment Benefits under § 440.15(3) Fla. Stat. Mounting this effort—intended from the outset and prosecuted as a constitutional test case—was trial attorney Charles H. Leo, P.A. of Orlando. After losing in a lower court, he handed the appeal over to the former Chief Judge of the First District Court of Appeal, now in private practice, Richard W. Ervin, III of Fox & Loquasto, P.A., in Tallahassee. Defending on behalf of the The Hartford was south Florida attorney H. George Kagan of Miller Kagan Rodriguez & Silver.
From reviewing the briefs, it is clear that the battle was hard-fought on both sides, and even colorful, with the Employer/Carrier’s presentation devoted mainly to showing how well the Act functions overall, even if parts—as the injured worker painstakingly demonstrated—may not be nearly as generous as in earlier versions.
At the end of the day, the Court of Appeal was not persuaded that the current statute’s significant reduction in indemnity benefits over earlier versions rendered it unconstitutional as applied to claimant Frost. The court disposed of the matter in a PCA (per curium affirmance), meaning a decision without a written opinion.    
In talking to attorney Kagan about this outcome, he pointed out a similar instance in a case decided last year, Tammy Davis v. Nascar, which he described as a more remarkable result given the presence of Westphal. In Davis, notable test-case-bringer attorney Mark Zientz of Miami sought to capitalize on Westphal by attacking the mirror image statute limiting temporary indemnity benefits to 104 weeks in cases of “mental and nervous injuries” under Fla. Statute 440.093, which seemed easy prey for at least certification to the Supreme Court alongside Westphal.

The briefs in that case too made for remarkable reading, with many pointed challenges to and creative defense of the statute. Defending on behalf of Nascar/Zurich, Kagan conceded that he found it surprising that the court rejected the challenge outright in a PCA opinion, rather than certifying it for consideration along with Westphal, given the identical benefits limitation.
The interesting point to contemplate is, had Frost gone the other way—had the court struck the indemnity benefits structure as constitutionally inadequate—pressure for change would have mounted on a system widely perceived as under attack, and we would be blogging about it statewide.
But, as I said, if a tree falls . . . .   In the end, there’s nothing to see here, folks. Go about your business. However, also know that there are those who are defending the Act in the quietude of their professional duties, and that the system continues to work exactly as it should, even when we don’t hear about it.

Late breaking development: We have just learned that claimant Frost has filed a motion to obtain a “written opinion,” which, if issued, will enable her to take her case to the Supreme Court, noting in her motion that is how the Stahl case, also decided initially without opinion, got to the Supreme Court after all. Stay tuned!

(Read more Work Comp Nation blogs here.)

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