Fight for Firefighter Designated ‘High Profile’ by Florida Supreme Court

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The law offices of Carlson, Meissner, Hart & Hayslett, P.A., are pleased to announce that on October 15, 2013, the Florida Supreme Court entered an Order designating the case of Westphal vs. City of St. Petersburg, SC13-1930, as ‘high profile’. Jason L. Fox, a partner in the lawfirm, was instrumental in this finding.

Westphal, a St. Petersburg firefighter, vs. City of St. Petersburg

Is a worker who is totally disabled as a result of a workplace accident, but still improving from a medical standpoint at the time temporary total disability benefits expire, deemed to be at maximum medical improvement?

The Order comes as a result of our request that the Florida Supreme Court hear the case regarding Bradley Westphal, an injured St. Petersburg firefighter, who was disabled from a severe ‘on the job’ back injury which has required three surgeries.

The First District Court of Appeal has withdrew the earlier decision of Westphal v. City of St. Petersburg, 38 Fla. L. Weekly D504a (Fla. 1st DCA February 28, 2013) which declared a portion of the workers’ compensation statute unconstitutional and issued Westphal v. City of St. Petersburg, 38 FLW D2029 (Fla. 1st DCA September 23, 2013) finding, after nineteen years, the legislature meant exactly what it said when it passed legislation in 1994 that requires a physician to place an employee at maximum medical improvement (MMI) at the conclusion of 104 weeks of collecting temporary total disability benefits even where the injured worker may not be medically at MMI.

Mr. Westphal was left injured and without a source of income while he was recovering from his second surgery. His temporary workers’ compensation benefits had expired after 104 weeks and the City argued they did not have to pay him additional temporary or permanent benefits until he was released from the doctors (at MMI). The Judge of Compensation Claims agreed with the City, recognizing that there was a hole in the Florida Statutes. Mr. Westphal was left without any income for 9 months until the City finally accepted him as permanently disabled.

Jason L. Fox, Esq., was dissatisfied with the result and refused to accept that an injured firefighter, or any other injured worker, should be prevented from receiving any benefits when stuck in this legal ‘gap’. Mr. Fox filed an appeal to the First District Court of Appeals challenging the lower court’s ruling and the constitutionality of the law. Mr. Fox, with the assistance of Richard Sicking, Esq. for oral argument and post hearing briefs, obtained a landmark decision from the Appellate Court in which they agreed that the ‘gap’ violated the Florida Constitution.

The victory was short lived as the City and numerous other entities sought a re-hearing en-banc (a re-hearing by the entire Appellate Court, currently 15 Judges, instead of by a panel of three). In an unprecedented en-banc opinion, the Appellate Court decided that it had improperly interpreted and applied the law for the past 15 years, including its recent en-banc decision affirming its interpretation in Matrix Employee Leasing v. Hadley, 78 So. 3d 621 (Fla. 1st DCA 2011). The en-banc opinion also included four dissenting and concurring opinions. Ultimately, the Appellate Court opined that Mr. Fox was correct and that the law never meant to create the ‘gap’ and that workers may apply to have their benefits converted to permanent status after 104 weeks. With this revised interpretation avoiding the ‘gap’, the Appellate Court felt it was unnecessary to address the constitutionality of the law. The Appellate Court did certify the following question for review by the Supreme Court as this was an issue of great public importance:

Jason Fox asked, "Is a worker who is totally disabled as a result of a workplace accident, but still improving from a medical standpoint at the time temporary total disability benefits expire, deemed to be at maximum medical improvement by operation of law and therefore eligible to assert a claim for permanent and total disability benefits?"

Even though the elimination of the ‘gap’ is a great win for workers, upon review of the five different opinions from the Appellate Court, and the certified question, Mr. Fox felt it was important to seek the Florida Supreme Court’s Opinion. In addition to answering the certified question, hopefully the Florida Supreme Court will expand their opinion to address the constitutional challenge.

This information is provided for educational purposes only and does not constitute legal advice.

About Carlson, Meissner, Hart & Hayslett , P.A.The

law firm of Carlson, Meissner, Hart & Hayslett P.A. was founded in 1971 by attorneys Ed Carlson and Paul Meissner. For more than four decades, they have been committed to protecting the injured and defending the accused. Their attorneys have established a solid reputation of case success throughout Florida, providing strong legal representation, easy accessibility and a high level of dependability. A client-centered approach ensures that clients know what is happening as their case progresses, and understand their options every step of the way. With a focus on personal injury, they help victims of auto accidents, slip and falls and wrongful death accidents. The firm is well-known for their innovative criminal defense work, defending both local and high-profile clients. Attorney and Partner Kevin Hayslett is widely recognized as The Attorney to the Stars, providing strong legal representation for notable celebrities and dignitaries throughout Florida. The firm also handles social security disability, workers compensation, divorce, family law and immigration cases. They offer free initial consultations and have five convenient Tampa Bay Area locations. Attorneys are available 24/7 for emergencies. Count on the legal team of Carlson, Meissner, Hart & Hayslett, P.A. to be there, fighting for you, protecting your rights. For more information or to schedule a consultation, call 877-728-9653 or visit their website at

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MaryAnn Bounacos

Mary Ann Bounacos
since: 07/2009
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