42
Fla. L. Weekly D1576aTop of Form

Workers’
compensation — Permanent total disability — Judge of compensation claims
erred in awarding PTD benefits based on claimant’s having reached “statutory”
maximum medical improvement due to exhaustion of 104 weeks of temporary benefit
payments — Decision in which Florida Supreme Court held that the 104-week
limitation on TTD benefits under section 440.15(2)(a) was unconstitutional and
quashed the district court opinion on which JCC relied applied retroactively —
Statute at issue had not previously been construed by a “court of supreme
jurisdiction” — Further, at all times relevant to instant proceeding, review
of district court decision was pending in the supreme court and claims for the
requested benefits were filed after supreme court had accepted jurisdiction —
Remand for further proceedings

FT. WALTON BEACH MEDICAL CENTER/
BROADSPIRE, Appellants, v. TARA YOUNG, Appellee. 1st District. Case No.
1D16-2162. July 14, 2017. An appeal from an order of the Judge of Compensation
Claims. Nolan S. Winn, Judge. Date of Accident: January 4, 2013. Counsel: Will
B. Ramhofer and Jerry M. Hayden of Vernis and Bowling P.A., Miami, for
Appellants. Nicolette E. Tsambis of Smith, Feddeler, Smith, P.A., Lakeland, for
Appellee.

(PER CURIAM.) In this workers’
compensation appeal, the Employer/Carrier (E/C) argues the Judge of
Compensation Claims (JCC) erred on four grounds. We agree with the E/C that the
JCC’s award of permanent total disability (PTD) benefits is contrary to Westphal
v. City of St. Petersburg (Westphal II), 194 So. 3d 311 (Fla. 2016).
Accordingly, we reverse on that ground, and need not address the remaining
issues on appeal.

I.

In the April 15, 2016, merits order,
the JCC found Claimant entitled to PTD benefits, relying on this Court’s
opinion in Westphal v. City of St. Petersburg (Westphal I), 122 So. 3d
440 (Fla. 1st DCA 2013) (en banc). The JCC denied the alternative claims for
temporary benefits based on a finding that Claimant had been paid in excess of
104 weeks of temporary benefits. Further, the JCC found that Claimant was not
at maximum medical improvement (MMI) either physically or psychologically,
noting that even though she was physically released to work, she was not
released for work due to her mental condition. On May 12, 2016, the E/C filed a
timely appeal of those portions of the merits order awarding PTD, permanent
impairment benefits, and related penalties, interest, costs and attorney fees.
No cross-appeal was filed.

On June 9, 2016, the Florida Supreme
Court released Westphal II, quashing Westphal I. The supreme
court concluded that the 104-week limitation on the payment of temporary total
disability (TTD) benefits under paragraph 440.15(2)(a), Florida Statutes
(2009), is unconstitutional as it deprives an injured worker, who has not
reached MMI, of disability benefit eligibility for an indefinite period of
time. Westphal II, 194 So. 3d at 313.

II.

We review de novo whether a JCC
utilized the correct legal standard. See Banks v. Allegiant Sec., 122
So. 3d 983, 985 (Fla. 1st DCA 2013) (“Our review of an erroneous application of
the law is de novo.”). “An appellate court is generally required to apply the
law in effect at the time of its decision.” Fla. Patient’s Comp. Fund v. Von
Stetina, 474 So. 2d 783, 787 (Fla. 1985).

In Florida Forest and Park
Service v. Strickland, 18 So. 2d 251, 253 (Fla. 1944), the Florida Supreme
Court addressed the retrospective/prospective application of an appellate
decision overruling a former decision, explaining:

Generally
speaking, therefore, a judicial construction of a statute will ordinarily be
deemed to relate back to the enactment of the statute, much as though the
overruling decision had been originally embodied therein. To this rule,
however, there is a certain well-recognized exception that where a statute has
received a given construction by a court of supreme jurisdiction and property
or contract rights have been acquired under and in accordance with such
construction, such rights should not be destroyed by giving to a subsequent
overruling decision a retrospective operation.

In Strickland, while the
appeal was ongoing, the supreme court “expressly overruled a previous decision
of the court . . . wherein we had given to the applicable statutes an entirely
different construction.” Id. at 252. Accordingly, the supreme court
declined to apply to Mr. Strickland’s case the effect of that overruling,
determining that it had only prospective application. Id. at 254. Here,
however, before Westphal II there had never been a construction of
paragraph 440.15(2)(a) by the “court of supreme jurisdiction.” Westphal I
was a decision by a court of intermediate appellate jurisdiction. Moreover, at
all times relevant to the instant proceeding, review of Westphal I was
pending in the supreme court, as the supreme court had accepted jurisdiction by
order of December 9, 2013, and the claims for the requested benefits were filed
in 2014 and 2015. As such, the holding in Westphal II applies to the
facts of this case.

Because the JCC’s determination of
entitlement to PTD benefits was based on the Claimant reaching “statutory MMI”
due to the exhaustion of 104 weeks of temporary benefit payments, the award of
those benefits was error. See Westphal II, 194 So. 3d at 320-21.
Accordingly, we reverse the order on appeal and remand for proceedings
consistent with Westphal II.

REVERSED and REMANDED. (ROWE, RAY,
and M.K. THOMAS, JJ., CONCUR.)

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