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Romano: The firefighter vs. City Hall, round 2

 
Published May 21, 2017

A former attorney for the city of St. Petersburg once argued in court that just because a law was unfair it wasn't necessarily unconstitutional.

This wasn't some theoretical exercise. It was the city's rationale for denying workers' compensation payments to a firefighter after he suffered a catastrophic back injury on the job.

Back in 2013, the city argued that it should not matter that the firefighter was not medically cleared to work. Nor that he had bills to pay, had to raid his pension account and withdraw from the city's deferred retirement program. The law at the time gave the city the right to stop payments, and so it did.

An appellate court called the situation "repugnant.''

The state Supreme Court later agreed.

This foolhardy decision to withhold payments to Brad Westphal forced him into economic crisis, and eventually upended Florida's workers' compensation system.

Fast forward to 2017:

Is it happening again?

• • •

He is no longer fit to be a firefighter. He can't even sleep through the night.

His family goes on vacations without him because it's difficult for him to travel. His hands shake, his legs are weak, and his pain is never-ending.

Brad Westphal is 56, and practically decrepit. Even with his cane, he routinely falls down because his left leg gives out. At 6-4 and 255 pounds, each fall has the potential for physical calamity.

He has had seven back surgeries, with scars from his rear to his neck. An electric stimulator has been implanted above his left hip that he adjusts with an iPad to manage his pain.

"It's completely changed my life,'' Westphal said. "People say, 'You still look big and strong,' like there's nothing wrong with me. I can't golf anymore, I can't play softball, I can't even chase my grandson. He's 2 years old, and outruns me. I can't do anything.''

His best hope for financial security is a potential lawsuit stemming from complications relating to his first surgery, and a proposed settlement has been discussed.

But, once again, a law stands in the way.

Florida statutes allow employers (or insurance carriers) to recoup money spent in workers' compensation cases if a third party is sued. The law has good intentions. It is meant to prevent an injured worker from double dipping for the same injury.

But that's really not what's happened here. The settlement would compensate Westphal for the mistakes made in the first surgery. Those mistakes necessitated follow-up surgeries. And St. Pete was not without culpability since the city chose the doctor who did the surgery.

In a way, the settlement would also make up for the city's stubborn refusal to make workers' compensation payments six years ago, which caused an economic slide Westphal still feels today.

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So, yes, the city may have the law on its side.

The question is whether it's fair.

The potential settlement would net $155,000, of which about $62,000 would go to attorneys. That would leave $93,000. And the city's legal team has been demanding $50,000 of that.

"There was a screw-up,'' Westphal said, "and it seems everybody is making money except the guy who was the victim in the first place.''

The city is in a tricky situation because the law requires a lien be applied in workers' compensation cases involving third-party lawsuits. And the city does have a fiduciary responsibility to its citizens, particularly since Westphal's extensive medical complications have been expensive.

But is it fair for the city to take home more money than Westphal, considering the extenuating circumstances? After researching the case on Friday, Mayor Rick Kriseman said no.

"I've asked our attorneys to go back and work out a resolution that is fair to both the taxpayers and to Mr. Westphal,'' said Kriseman, who was not in office when the original case was litigated. "I didn't feel the numbers originally presented got me to the point where it felt fair to everyone.''

So, the end is still to be determined.

The last time, the city unwisely fought until the case reached the state Supreme Court and the workers' compensation law was tossed out. That decision, along with another case, has caused employer insurance rates to jump about 14 percent, and lawmakers still haven't come up with a replacement law.

This time, at least, there seems to be a little more compassion and common sense from City Hall.

It won't give Brad Westphal his life back, but at least it could give him some needed peace.