Romano: A heartless decision by St. Pete could change workers' comp in Florida

Published June 11, 2016

Sometimes, you get what you deserve.

In this case, it appears the city of St. Petersburg may get a hefty legal bill, and the state of Florida could see its business-friendly workers' compensation laws blown to bits.

And why does that feel like karma?

Because the city turned its back on a St. Petersburg firefighter injured on the job nearly seven years ago. And because the state was too foolish to realize how much was at stake over what should have been a relatively simple negotiation.

And so now the state Supreme Court has essentially slapped both the city and the state and, more importantly, Florida businesses could come unglued over the potential fallout.

"This will absolutely get the attention of Tallahassee and the Chamber of Commerce," said Jason Bent, an employment law professor at Stetson University. "There are phrases in that (Supreme Court) opinion that suggest the entire workers' compensation system is unconstitutional. I would think the Legislature will have to do something in response."

The basic issue is this:

The Supreme Court specifically ruled that a law imposing a time limit on temporary benefits was unconstitutional, and one justice suggested the Legislature had passed so many other laws limiting benefits that the entire system is now rigged in favor of businesses.

Coming on the heels of another Supreme Court decision two months ago that attacked the limiting of attorneys' fees, this will almost certainly cause workers' comp insurance premiums to rise for businesses throughout Florida.

All because St. Pete chose not to pay Brad Westphal benefits even though he was clearly unfit to return to work.

"The Legislature has been taking away benefits for injured workers for so long, the court finally used Mr. Westphal's case as a tipping point," said Jason Fox, one of Westphal's attorneys. "It's no longer a fair exchange for workers giving up their rights, and the Supreme Court is saying the Legislature should not solve it with another knee-jerk fix."

This story goes back to 2009, when Westphal was part of a team responding to a routine fire call in a home. Westphal suffered a fluke, but catastrophic, injury that has since led to five back surgeries, three knee surgeries, partial paralysis in his left leg and constant pain.

The problem in 2012 was that the city's handpicked doctor would not clear Westphal to return to work, but also would not rule he was eligible for permanent disability benefits.

Since the state had changed the maximum time limit on temporary benefits from five years to two, Westphal was caught in limbo. He had no benefits, and yet could not work. Facing financial crisis, he raided his savings and retired early to draw a pension.

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From the beginning, the city's stance has been that it was merely following state law. And since he was not yet ruled completely disabled, the city acted as if it made no sense to worry about an injured first responder with nearly 30 years on the job.

The city rebuffed offers from Westphal's attorney to resolve the gap problem temporarily or settle the case completely. At some point, the Attorney General's Office got involved and also discouraged the idea of a settlement.

"The city followed the law as it existed at the time," said Jeannine Williams, chief assistant city attorney, who was not part of the original case.

While the city had the law on its side, it showed no evidence of compassion.

Or moral responsibility.

And that's pretty much the way the Supreme Court saw it, ruling 5-2 that the two-year limit on temporary benefits was unconstitutional because workers had no redress.

Justice Fred Lewis, in a concurring opinion, said it wasn't even enough to revert back to the five-year limit on temporary benefits. Lewis argued that the Legislature has made so many changes to workers' comp laws that it is "in need of major reform."

Florida needs a valid Workers' Compensation program, but the charade is over," Lewis wrote. "Enough is enough, and Florida workers deserve better."

Westphal, now 55 and in need of a cane, was eventually ruled permanently disabled and has since been receiving benefits.

The Supreme Court ruling means he is eligible to receive more than $30,000 in missed payments, plus interest and penalties. His attorney fees will also become St. Pete's responsibility, although Williams said the city is still evaluating its liabilities.

"It's been a long road, and I'll certainly be happy to see the check arrive," Westphal said Friday. "But at some point, it wasn't even about the money anymore. It was about doing what was right. I was mad, and I didn't want any other seriously injured worker to have to go through everything I did.

"It just never made sense what the city was doing. They were willing to spend a dollar to save a nickel."