Workers’
compensation — Temporary total disability — Section 440.15(2)(a), Florida
Statutes (2009), which cuts off disability benefits after 104 weeks to a worker
who is totally disabled but who has not yet reached maximum medical
improvement, is unconstitutional as applied as a denial of access to courts —
Unconstitutional limitation on temporary total disability benefits does not
render entire workers’ compensation system invalid — Proper remedy is revival
of pre-1994 statute that provided for a limitation of 260 weeks of temporary
total disability benefits

BRADLEY WESTPHAL, Petitioner, v. CITY OF ST. PETERSBURG,
etc., et al., Respondents. Supreme Court of Florida. Case No. SC13-1930. CITY
OF ST. PETERSBURG, etc., Petitioner, v. BRADLEY WESTPHAL, Respondent. Case No.
SC13-1976. June 9, 2016. Application for Review of the Decision of the District
Court of Appeal – Certified Great Public Importance. First District – Case No.
1D12-3563. Counsel: Richard Anthony Sicking of Touby, Chait & Sicking,
P.L., Coral Gables; and Jason Lawrence Fox of Bichler, Kelley, Oliver, Longo
& Fox, PLLC, Tampa, for Petitioner/Respondent. John C. Wolfe, City
Attorney, Jeannine Smith Williams, Chief Assistant City Attorney, and Kimberly
D. Proano, Assistant City Attorney, Saint Petersburg, for Respondent/Petitioner
City of Saint Petersburg. Pamela Jo Bondi, Attorney General, and Rachel Erin
Nordby, Deputy Solicitor General, Tallahassee, for Respondent/Petitioner State
of Florida. Mark Lawrence Zientz of the Law Offices of Mark L. Zientz, P.A.,
Miami, for Amicus Curiae Workers’ Injury Law and Advocacy Group. Richard W.
Ervin, III of Fox & Loquasto, P.A., Tallahassee, for Amicus Curiae Florida
Workers Advocates. Noah Scott Warman of Sugarman & Susskind, P.A., Coral
Gables, for Amicus Curiae Florida Professional Firefighters, Inc. William J.
McCabe, Longwood, for Amicus Curiae Florida Justice Association. Geoffrey
Bichler of Bichler, Kelley, Oliver & Longo, PLLC, Maitland, for Amici
Curiae Police Benevolent Association, The Florida Fraternal Order of Police,
and International Union of Police Associations, AFL-CIO. Matthew J. Mierzwa, Jr.
of Mierzwa & Associates, P.A., Lake Worth, for Amicus Curiae The
International Association of Fire Fighters. Andre M. Mura of the Center for
Constitutional Litigation, P.C., Washington, District of Columbia, for Amicus
Curiae American Association for Justice. Jeffrey Edward Appel of Appel Harden
Law Group, Lakeland; and Barbara Ballow Wagner of Wagenheim & Wagner, P.A.,
Fort Lauderdale, for Amicus Curiae Voices, Inc. William Harris Rogner, Winter
Park, for Amici Curiae Associated Industries of Florida, Associated Builders
and Contractors of Florida, The Florida Chamber of Commerce, The Florida
Insurance Council, The Property Casualty Insurers Association of America, The
Florida Justice Reform Institute, Publix Super Markets, United Parcel Service,
The Florida Roofing, Sheet Metal and Air Conditioning Contractors Association,
The Florida Retail Federation, The American Insurance Association, The National
Federation of Independent Business, The Florida United Businesses Association,
Inc., and The Florida Association of Self Insureds.

(PARIENTE, J.) In this case, we consider the
constitutionality of section 440.15(2)(a), Florida Statutes (2009) — part of
the state’s workers’ compensation law — which cuts off disability benefits
after 104 weeks to a worker who is totally disabled and incapable of working
but who has not yet reached maximum medical improvement. We conclude that this
portion of the worker’s compensation statute is unconstitutional under article
I, section 21, of the Florida Constitution, as a denial of the right of access
to courts, because it deprives an injured worker of disability benefits under
these circumstances for an indefinite amount of time — thereby creating a
system of redress that no longer functions as a reasonable alternative to tort litigation.

In Westphal v. City of St. Petersburg/City of St.
Petersburg Risk Management, 122 So. 3d 440, 442 (Fla. 1st DCA 2013), an en
banc majority of the First District Court of Appeal valiantly attempted to save
the statute from unconstitutionality by interpreting section 440.15(2)(a) so
that the severely injured worker who can no longer receive temporary total
disability benefits, but who is not yet eligible for permanent total disability
benefits, would not be cut off from compensation after 104 weeks.1 The judiciary, however, is without
power to rewrite a plainly written statute, even if it is to avoid an
unconstitutional result. See Brown v. State, 358 So. 2d 16, 20 (Fla.
1978) (“When the subject statute in no way suggests a saving construction, we
will not abandon judicial restraint and effectively rewrite the enactment.”).
We accordingly quash the First District’s decision.

Consistent with the views of both the petitioner, Bradley
Westphal, and the principal respondent, the City of St. Petersburg, we conclude
that section 440.15(2)(a) of the workers’ compensation law is plainly written
and therefore does not permit this Court to resort to rules of statutory
construction. See Knowles v. Beverly Enters.-Fla., Inc., 898 So. 2d 1, 5
(Fla. 2004). Instead, we must give the statute its plain and obvious meaning,
which provides that “[o]nce the employee reaches the maximum number of weeks
allowed [104 weeks], or the employee reaches the date of maximum medical
improvement, whichever occurs earlier, temporary disability benefits shall
cease and the injured worker’s permanent impairment shall be determined.” §
440.15(2)(a), Fla. Stat. The statute does not — as the First District
erroneously concluded — provide that the worker is at that time legally
entitled to permanent total disability benefits, nor does it provide that the
worker is automatically deemed to be at maximum medical improvement based on
the cessation of temporary total disability benefits. See Westphal, 122
So. 3d at 444.

Applying the statute’s plain meaning, we conclude that the
104-week limitation on temporary total disability benefits results in a
statutory gap in benefits, in violation of the constitutional right of access
to courts. The stated legislative intent of the workers’ compensation law is to
“assure the quick and efficient delivery of disability and medical benefits to
an injured worker and to facilitate the worker’s return to gainful reemployment
at a reasonable cost to the employer.” § 440.015, Fla. Stat. (2009). Section
440.15(2)(a), however, operates in the opposite manner. The statute cuts off a
severely injured worker from disability benefits at a critical time, when the
worker cannot return to work and is totally disabled but the worker’s doctors
— chosen by the employer — deem that the worker may still continue to
medically improve.

As applied to these circumstances, the workers’ compensation
law undoubtedly fails to provide “full medical care and wage-loss payments for
total or partial disability regardless of fault.” Martinez v. Scanlan,
582 So. 2d 1167, 1171-72 (Fla. 1991). Instead, for injured workers like
Westphal who are not yet legally entitled to assert a claim for permanent total
disability benefits at the conclusion of 104 weeks of temporary total
disability benefits, the workers’ compensation law lacks adequate and
sufficient safeguards and cannot be said to continue functioning as a “system
of compensation without contest” that stands as a reasonable alternative to
tort litigation. Mullarkey v. Fla. Feed Mills, Inc., 268 So. 2d 363, 366
(Fla. 1972). Contrary to Justice Canady’s dissenting opinion, the seminal case
on the meaning of the Florida Constitution’s access to courts provision, Kluger
v. White, 281 So. 2d 1 (Fla. 1973), specifically discussed the test for
determining the constitutionality of the workers’ compensation statutory scheme
under the access to courts provision, article I, section 21, of the Florida
Constitution. The constitutional yardstick, which we applied in Martinez
and Mullarkey for determining whether an access-to-courts violation
occurred as a result of changes made to the workers’ compensation statutory
scheme, is whether the scheme continues to provide “adequate, sufficient, and
even preferable safeguards for an employee who is injured on the job.” Kluger,
281 So. 2d at 4.

Accordingly, we hold that the statute as written by the
Legislature is unconstitutional. However, we conclude that this
unconstitutional limitation on temporary total disability benefits does not
render the entire workers’ compensation system invalid.2 Rather, we employ the remedy of
statutory revival and direct that the limitation in the workers’ compensation
law preceding the 1994 amendments to section 440.15(2)(a) is revived, which
provides for temporary total disability benefits not to exceed 260 weeks —
five years of eligibility rather than only two years, a limitation we
previously held “passes constitutional muster.” Martinez, 582 So. 2d at
1172.

I.
FACTS AND PROCEDURAL HISTORY

In December 2009, Bradley Westphal, then a
fifty-three-year-old firefighter in St. Petersburg, Florida, suffered a severe
lower back injury caused by lifting heavy furniture in the course of fighting a
fire. As a result of the lower back injury, Westphal experienced extreme pain
and loss of feeling in his left leg below the knee and required multiple
surgical procedures, including an eventual spinal fusion.

Shortly after his workplace injury, Westphal began receiving
benefits pursuant to the workers’ compensation law set forth in chapter 440,
Florida Statutes (2009). Specifically, the City of St. Petersburg began to
provide both indemnity benefits, in the form of temporary total disability
benefits pursuant to section 440.15(2), Florida Statutes, and medical benefits.

Under section 440.15(2)(a), entitlement to temporary total
disability benefits ends when a totally disabled injured worker reaches the
date of maximum medical improvement or after 104 weeks, whichever occurs
earlier. § 440.15(2)(a), Fla. Stat. The “date of maximum medical improvement”
is defined in section 440.02(10), Florida Statutes (2009), as “the date after
which further recovery from, or lasting improvement to, an injury or disease
can no longer reasonably be anticipated, based upon reasonable medical
probability.” Westphal did not reach maximum medical improvement prior to the
expiration of the 104-week limitation on temporary total disability benefits.

At the expiration of temporary total disability benefits,
Westphal was still incapable of working or obtaining employment, based on the
advice of his doctors and the vocational experts that examined him. In an
attempt to replace his pre-injury wages of approximately $1,500 per week that
he was losing because of his injuries, Westphal filed a petition for benefits,
claiming either further temporary disability or permanent total disability
pursuant to section 440.15(1), Florida Statutes (2009).

A.
Judge of Compensation Claims Decision

The Judge of Compensation Claims (JCC) held a hearing on
Westphal’s petition and subsequently denied the claim for permanent total
disability benefits based on its interpretation of City of Pensacola
Firefighters v. Oswald, 710 So. 2d 95 (Fla. 1st DCA 1998), and Matrix
Employee Leasing, Inc. v. Hadley, 78 So. 3d 621 (Fla. 1st DCA 2011). In Oswald,
the First District held that to receive permanent total disability benefits,
“an employee whose temporary benefits have run out — or are expected to do so
imminently — must be able to show not only total disability upon the cessation
of temporary benefits but also that total disability will be ‘existing after
the date of maximum medical improvement.’ ” 710 So. 2d at 98, abrogated by
Westphal, 122 So. 3d at 448 (quoting § 440.02(19), Fla. Stat. (Supp.
1994)). The First District also observed that the statutory scheme could create
a statutory gap — a period of time when totally disabled individuals would no
longer be eligible for temporary total disability benefits and could not
receive any disability benefits until, possibly, finally being declared eligible
for permanent total disability benefits. Id. at 97-98. In Hadley,
the First District again acknowledged the concern of a statutory gap in
benefits, but reaffirmed Oswald nonetheless. See Hadley, 78 So.
3d at 624-25, receded from by Westphal, 122 So. 3d at 442.

Based on this line of case law, the JCC denied Westphal’s
claim. In its final order, the JCC found that Westphal had not reached maximum
medical improvement and that it was “too speculative to determine whether he
will remain totally disabled after the date of [maximum medical improvement]
has been reached from a physical standpoint.” Thus, Westphal fell into the
statutory gap — still totally disabled at the cessation of temporary total
disability benefits, but not yet entitled to permanent total disability
benefits because he could not prove that he would still be totally disabled
when he reached maximum medical improvement. He was, in essence, completely cut
off from disability benefits for an indefinite amount of time, unless and until
he could claim entitlement to permanent total disability benefits at some
future date and, even then, without any ability to recover disability benefits
for his time in the statutory gap.

B.
First District Panel Decision

Westphal appealed to the First District, contending that the
JCC erred in determining that he was not entitled to permanent total disability
benefits. He further argued that the 104-week statutory limitation on temporary
total disability benefits, as applied to him, was an unconstitutional denial of
access to courts. A panel of the First District agreed with the constitutional
claim, holding that the 104-week limitation on temporary total disability
benefits was unconstitutional as applied to the facts of this case.

Specifically, relying on Kluger, 281 So. 2d 1, the
First District panel concluded that the 104-week limitation on temporary total
disability benefits was an inadequate remedy as compared to the 350 weeks
available when voters adopted the access to courts provision in the 1968
Florida Constitution. The First District panel also observed that the 104-week
limitation on temporary total disability benefits was the lowest in the United
States. The First District panel applied its decision prospectively and
instructed the JCC to grant Westphal additional temporary total disability
benefits, not to exceed 260 weeks, as would have been provided under the
relevant statutory provisions in effect before the 1994 amendment of section
440.15(2)(a), limiting eligibility for temporary total disability benefits to a
maximum of 104 weeks.

C.
First District En Banc Decision

Subsequent to the panel decision, the First District granted
motions for rehearing en banc filed by the City and the State. The First
District then issued an en banc decision withdrawing the panel opinion that had
declared the statute unconstitutional. Setting forth a new interpretation of
the statute to avoid a holding of unconstitutionality, the First District’s en
banc decision receded from Hadley, 78 So. 3d 621, and abrogated Oswald,
710 So. 2d 95.

In addressing the issue of Westphal’s entitlement to
disability benefits, the en banc majority determined that the First District’s
construction of the statute fifteen years earlier in Oswald, and then
again two years earlier in Hadley, was incorrect. Specifically, the
First District noted that the statute requires a medical evaluation either when
an injured worker reaches maximum medical improvement or six weeks before the
expiration of the 104-week period of eligibility for temporary total disability
benefits, whichever occurs earlier, and that the doctor must assign an
impairment rating as part of this evaluation. Westphal, 122 So. 3d at
444. The First District construed the use of the phrase “permanent impairment”
in section 440.15(2)(a) to signify that the worker has attained maximum medical
improvement. Id. at 445-46. Accordingly, the First District held that “a
worker who is totally disabled as a result of a workplace accident and remains
totally disabled by the end of his or her eligibility for temporary total
disability benefits is deemed to be at maximum medical improvement by operation
of law and is therefore eligible to assert a claim for permanent and total
disability benefits.” Id. at 442.

As a result of this new interpretation of the statute, which
eliminated the statutory gap, the First District found it unnecessary to
consider whether its prior, now discredited interpretation of the statute in Hadley
— recognizing the gap — rendered the statute unconstitutional as a denial
of the right of access to courts. Id. at 447. The First District then
certified the question it passed upon as one of great public importance. Id.
at 448. We granted review3 and now quash the First District’s en
banc decision and hold the statute unconstitutional as applied, in accordance
with the prior panel opinion.

II.
ANALYSIS

Both Westphal as the petitioner and the City as the principal
respondent argue before this Court that the First District’s previous
construction of the statute in Hadley and Oswald was correct, and
that the new interpretation advanced by the en banc majority in Westphal
amounts to a violation of separation of powers, due process, and the principle
of stare decisis. The State, which is also a respondent, agrees that the
previous interpretation of the First District in Hadley and Oswald
is correct, but argues that the First District’s new construction of section
440.15(2)(a) is a reasonable alternative interpretation if this Court is
inclined to declare the 104-week limitation on temporary total disability
benefits to be invalid as a denial of access to courts. Westphal, however,
argues that there is no judicial fix and that the 104-week limitation in
section 440.15(2)(a), as applied to him and others similarly situated, is an
unconstitutional denial of access to courts.

We thus begin our analysis by interpreting section 440.15 to
determine if the First District’s en banc opinion — eliminating the statutory
gap — provides a permissible statutory construction, or if the First
District’s prior opinions in Hadley and Oswald — recognizing the
statutory gap created by the Legislature — provided the correct interpretation.
After concluding that the First District’s en banc opinion is an impermissible
judicial rewrite of the Legislature’s plainly written statute, we are forced to
confront the constitutional issue of whether the statute, as applied to
Westphal and other similarly situated severely injured workers, is
unconstitutional. Concluding that the statute, as applied, violates the access
to courts provision of the Florida Constitution, we conclude by considering the
appropriate remedy.

A.
Section 440.15, Florida Statutes

Section 440.15, Florida Statutes (2009), governs the payment
of disability benefits to injured workers. As of the 1968 adoption of the
Florida Constitution, permanent total disability benefits were determined “in
accordance with the facts,” and the term “maximum medical improvement” was not
included in the workers’ compensation law. § 440.15(1), Fla. Stat. (1968).
Nevertheless, the phrase “maximum medical improvement” was part of this Court’s
lexicon because it assisted in determining the permanence of the injury.
Indeed, in 1969, this Court noted that “[t]he date of maximum medical
improvement marks the end of temporary disability and the beginning of
permanent disability.” Corral v. McCrory Corp., 228 So. 2d 900, 903
(Fla. 1969). At that time, section 440.15(2) provided for the payment of
temporary total disability benefits for a duration not to exceed 350 weeks. §
440.15(2), Fla. Stat. (1968).

In 1979, the Legislature added the term “date of maximum
medical improvement” to the statute, defining it consistently with this Court’s
prior 1969 construction in Corral and requiring that the date be “based
upon reasonable medical probability.” § 440.02(22), Fla. Stat. (1979). That
statutory definition has remained unchanged to this day.

In 1990, the Legislature reduced the duration of temporary
total disability benefits from 350 weeks to 260 weeks. § 440.15(2), Fla. Stat.
(1990). Then, just four years later, and as part of an extensive statutory
overhaul, the Legislature further reduced the duration of temporary total
disability benefits from 260 weeks to 104 weeks. § 440.15(2)(a), Fla. Stat.
(1994).

Accordingly, in 2009, at the time of the events giving rise
to this case, section 440.15(1) provided in part:

(a)
In case of total disability adjudged to be permanent, 66 2/3 percent of the
average weekly wages shall be paid to the employee during the continuance of
such total disability. No compensation shall be payable under this section if
the employee is engaged in, or is physically capable of engaging in, at least
sedentary employment.

(b)
In the following cases, an injured employee is presumed to be permanently and
totally disabled unless the employer or carrier establishes that the employee
is physically capable of engaging in at least sedentary employment within a
50-mile radius of the employee’s residence:

. .
. .

In
all other cases, in order to obtain permanent total disability benefits, the
employee must establish that he or she is not able to engage in at least
sedentary employment, within a 50-mile radius of the employee’s residence, due
to his or her physical limitation. . . . Only claimants with catastrophic
injuries or claimants who are incapable of engaging in employment, as described
in this paragraph, are eligible for permanent total benefits. In no other case
may permanent total disability be awarded.

Under the plain language of this provision, permanent total
disability benefits are expressly limited to “claimants with catastrophic
injuries or claimants who are incapable of engaging in employment.” §
440.15(1)(b), Fla. Stat. (2009). “In no other case may permanent total
disability be awarded.” Id.

Section 440.15(2)(a), which governs temporary total
disability benefits, provided in part as follows:

Subject
to subsection (7), in case of disability total in character but temporary in
quality, 66 2/3 percent of the average weekly wages shall be paid to the
employee during the continuance thereof, not to exceed 104 weeks except as
provided in this subsection, s. 440.12(1), and s. 440.14(3).[4] Once the employee reaches the
maximum number of weeks allowed, or the employee reaches the date of maximum
medical improvement, whichever occurs earlier, temporary disability benefits
shall cease and the injured worker’s permanent impairment shall be determined.

Under the plain language of this provision, temporary total
disability benefits are payable for no more than 104 weeks, after which the
worker’s permanent impairment rating must be determined. “The permanent
impairment rating is used to pay ‘impairment income benefits,’ ” as
distinguished from permanent total disability benefits, “commencing on ‘the day
after the employee reaches [maximum medical improvement] or after the
expiration of temporary benefits, whichever occurs earlier,’ and continuing for
a period determined by the employee’s percentage of impairment.” Hadley,
78 So. 3d at 624 (quoting § 440.15(3)(g), Fla. Stat.).

As the First District recognized in Hadley, “[t]he
statutory scheme in section 440.15 works seamlessly when the injured employee
reaches [maximum medical improvement] prior to the expiration of the 104 weeks
of temporary disability benefits.” Id. But where “the employee is not at
[maximum medical improvement] at the expiration of the 104 weeks, there is the
potential for a ‘gap’ in disability benefits because [temporary total
disability] benefits cease by operation of law after 104 weeks and entitlement
to [permanent total disability] benefits is generally not ripe until the
employee reaches [maximum medical improvement].” Id.

Analyzing these statutory provisions, and in an apparent
effort to avoid the statutory gap, the First District in Westphal
ultimately concluded that the Legislature’s use of the term “permanent
impairment” in section 440.15(2)(a) signifies that the disabled worker has
attained maximum medical improvement by operation of law. See Westphal,
122 So. 3d at 445. The First District therefore held that “a worker who is
totally disabled as a result of a workplace accident and remains totally
disabled by the end of his or her eligibility for temporary total disability
benefits is deemed to be at maximum medical improvement by operation of law and
is therefore eligible to assert a claim for permanent and total disability
benefits.” Id. at 442.

Although this Court’s review of the First District’s
statutory interpretation is de novo, “statutes come clothed with a presumption
of constitutionality and must be construed whenever possible to effect a
constitutional outcome.” Crist v. Fla. Ass’n of Crim. Def. Lawyers, Inc.,
978 So. 2d 134, 139 (Fla. 2008). While we are confident that the First District
en banc majority was attempting to save the statute’s constitutionality by
interpreting it so as to avoid a draconian result for severely injured workers,
the clear language of the statute simply does not allow us to agree with the
First District’s interpretation.

Rather, the previous interpretation provided by the First
District in Oswald, and adhered to in Hadley, is consistent with
the Legislature’s plainly stated intent, which nowhere indicates that the
Legislature sought to equate the expiration of temporary total disability
benefits with maximum medical improvement. As stated in Oswald, under
the plain language of the statute, “an employee whose temporary benefits have
run out — or are expected to do so imminently — must be able to show not only
total disability upon the cessation of temporary benefits but also that total
disability will be existing after the date of maximum medical improvement” in
order to be eligible to receive permanent total disability benefits. 710 So. 2d
at 98 (internal citation omitted).

Specifically, section 440.15(2)(a) requires an injured
worker’s “permanent impairment,”5 as opposed to permanent total
disability, to be determined. In addition, section 440.15(3), which pertains to
“permanent impairment benefits,” is the only section that discusses an
“evaluation” for permanent impairment of the employee, with entitlement to such
benefits to commence the day after the employee reaches maximum medical
improvement or his or her temporary total disability benefits expire. Permanent
impairment benefits are distinct from, and not a substitute for, total
disability benefits. Thus, the plain language of the statute provides for
permanent impairment to be determined for purposes of impairment benefits as
opposed to permanent total disability benefits.

It is clear from the statute that the Legislature intended
to limit the duration of temporary total disability benefits to a maximum of
104 weeks. It is further clear that the Legislature intended to limit the class
of individuals who are entitled to permanent total disability benefits to those
with catastrophic injuries and those who are able to demonstrate a permanent
inability to engage in even sedentary employment within a fifty-mile radius of
their home. In other words, these provisions “create a gap in disability
benefits for those injured workers who are totally disabled upon the expiration
of temporary disability benefits but fail to prove prospectively that total
disability will exist after the date of [maximum medical improvement].” Hadley,
78 So. 3d at 626 (quoting Crum v. Richmond, 46 So. 3d 633, 637 n.3 (Fla.
1st DCA 2010)).

Although this Court must, whenever possible, construe
statutes to effect a constitutional outcome, we may not salvage a plainly
written statute by rewriting it. See Sult v. State, 906 So. 2d 1013,
1019 (Fla. 2005) (“Courts may not go so far in their narrowing constructions so
as to effectively rewrite legislative enactments.”). The gap in benefits caused
by the Legislature’s decision to reduce the duration of entitlement to
temporary total disability benefits may be an unintentional, unanticipated, and
unfortunate result. But even if potentially unwise and unfair, it is not the
prerogative of the courts to rewrite a statute to overcome its shortcomings. See
Clines v. State, 912 So. 2d 550, 558 (Fla. 2005) (“A court’s function is to
interpret statutes as they are written and give effect to each word in the
statute.” (quoting Fla. Dep’t of Revenue v. Fla. Mun. Power Agency, 789
So. 2d 320, 324 (Fla. 2001))); Metro. Dade Cty. v. Bridges, 402 So. 2d
411, 414 (Fla. 1981), receded from on other grounds by Makemson v. Martin
Cty., 491 So. 2d 1109 (Fla. 1986) (explaining that “courts may not vary the
intent of the legislature with respect to the meaning of the statute in order
to render the statute constitutional”).

Because we hold that the statute is clear in creating a
statutory gap in benefits, and thus not susceptible to the rules of statutory
construction, we turn to Westphal’s constitutional challenge — that the
statute as plainly written results in a denial of access to courts.

B.
Denial of Access to Courts

Article I, section 21, of the Florida Constitution, part of
our state constitutional “Declaration of Rights” since 1968, guarantees every
person access to the courts and ensures the administration of justice without
denial or delay: “The courts shall be open to every person for redress of any
injury, and justice shall be administered without sale, denial or delay.”
Art. I, § 21, Fla. Const. (emphasis added). This important state constitutional
right has been construed liberally in order to “guarantee broad accessibility
to the courts for resolving disputes.” Psychiatric Assocs. v. Siegel,
610 So. 2d 419, 424 (Fla. 1992), receded from on other grounds by Agency for
Health Care Admin. v. Associated Indus. of Fla., Inc., 678 So. 2d 1239
(Fla. 1996).

In Kluger, this Court explained the meaning of the
access to courts provision and the necessary showing for demonstrating a
constitutional violation based on access to courts:

[W]here
a right of access to the courts for redress for a particular injury has been
provided by statutory law predating the adoption of the Declaration of Rights
of the Constitution of the State of Florida, or where such right has become a
part of the common law of the State pursuant to Fla. Stat. § 2.01, F.S.A., the
Legislature is without power to abolish such a right without providing a
reasonable alternative to protect the rights of the people of the State to
redress for injuries, unless the Legislature can show an overpowering public
necessity for the abolishment of such right, and no alternative method of
meeting such public necessity can be shown.

281 So. 2d at 4.

Prior to 1968, when the access to courts provision was
adopted, the Legislature had already abolished the common-law tort remedy for
injured workers and enacted a workers’ compensation law “as administrative
legislation to be simple, expeditious, and inexpensive so that the injured
employee, his family, or society generally, would be relieved of the economic
stress resulting from work-connected injuries, and place the burden on the
industry which caused the injury.” Lee Eng’g & Constr. Co. v. Fellows,
209 So. 2d 454, 456 (Fla. 1968). The workers’ compensation law “abolishes the
right to sue one’s employer and substitutes the right to receive benefits under
the compensation scheme.” Sasso v. Ram Prop. Mgmt., 452 So. 2d 932, 933
(Fla. 1984).

Nevertheless, the fact that workers’ compensation was
created prior to 1968 as a non-judicial statutory scheme of no fault benefits
intended to provide full medical care and wage-loss payments does not mean that
changes to the workers’ compensation law to reduce or eliminate benefits are
immune from a constitutional attack based on access to courts. In fact, this
Court in Kluger specifically discussed the alternative remedy of
workers’ compensation, explaining that “[w]orkmen’s compensation abolished the
right to sue one’s employer in tort for a job-related injury, but provided
adequate, sufficient, and even preferable safeguards for an employee who is
injured on the job, thus satisfying one of the exceptions to the rule
against abolition of the right to redress for an injury.” Kluger, 281
So. 2d at 4 (emphasis added). In other words, as Kluger held, workers’
compensation constitutes a “reasonable alternative” to tort litigation — and
therefore does not violate the access to courts provision — so long as it
provides adequate and sufficient safeguards for the injured employee. Id.

This Court has applied the Kluger analysis in
subsequent cases that have raised constitutional challenges to the workers’
compensation law based on access to courts. Citing to Kluger, this Court
in Martinez explained that in order to be upheld as constitutional, the
workers’ compensation law must continue to provide a “reasonable alternative to
tort litigation.” Martinez, 582 So. 2d at 1171-72; see also Mahoney
v. Sears, Roebuck & Co., 440 So. 2d 1285, 1286 (Fla. 1983) (“Workers’
compensation, therefore, still stands as a reasonable litigation
alternative.”).

In Martinez, this Court noted that it “previously has
rejected claims that workers’ compensation laws violate access to courts by
failing to provide a reasonable alternative to common-law tort remedies.” Martinez,
582 So. 2d at 1171 (citing Kluger, 281 So. 2d at 4). Although the 1990
amendment addressed by the Court in Martinez “undoubtedly reduce[d]
benefits to eligible workers,” by reducing the administration of temporary
total disability benefits from 350 weeks to 260 weeks, this Court concluded at
that time that “the workers’ compensation law remains a reasonable
alternative to tort litigation.” Id. at 1171-72 (emphasis added).
But this conclusion was premised on the holding that the workers’ compensation
scheme as a whole continued to provide “injured workers with full medical care
and wage-loss payments for total or partial disability regardless of fault and
without the delay and uncertainty of tort litigation.” Id. at 1172. That
is, under the Kluger analysis, the law at the time of Martinez,
which provided for 260 weeks for temporary total disability, continued to
provide adequate and sufficient safeguards for injured employees.

Therefore, although this Court has rejected constitutional
challenges to the workers’ compensation law in the past, our precedent clearly
establishes that, when confronted with a constitutional challenge based on
access to courts, we must determine whether the law “remains a reasonable
alternative to tort litigation.” Acton v. Fort Lauderdale Hosp., 440 So.
2d 1282, 1284 (Fla. 1983). However, because the workers’ compensation law had
already been adopted in 1968, the question in this case is whether the workers’
compensation law with regard to the 104-week limitation remains a “system of
compensation without contest,” Mullarkey, 268 So. 2d at 366, that
provides “full medical care and wage-loss payments for total or partial
disability regardless of fault,” Martinez, 582 So. 2d at 1172
(emphasis added).

The 104-week limitation on temporary total disability
benefits and the statutory gap must therefore be viewed through the analytical
paradigm of Kluger, asking whether the workers’ compensation law
continues to provide adequate and sufficient safeguards for the injured worker
and thus constitutes a constitutional, reasonable alternative to tort
litigation. Kluger, 281 So. 2d at 4. The “reasonable alternative” test
is then the linchpin and measuring stick, and this Court has undoubtedly upheld
as constitutional many limitations on workers’ compensation benefits as
benefits have progressively been reduced over the years and the statutory
scheme changed to the detriment of the injured worker.

But, there must eventually come a “tipping point,” where the
diminution of benefits becomes so significant as to constitute a denial
of benefits — thus creating a constitutional violation. We accordingly must
review what has occurred to the workers’ compensation system since the 1968
adoption of the access to courts provision, as it relates to providing “full
medical care and wage-loss payments for total or partial disability regardless
of fault,” Martinez, 582 So. 2d at 1172, in order to determine whether
we have now reached that constitutional “tipping point.”

As applied to Westphal, the current workers’ compensation
statutory scheme does not just reduce the amount of benefits he would receive,
which was the issue we addressed in Martinez, but in fact completely
cuts off his ability to receive any disability benefits at all. It does so even
though there is no dispute that Westphal remained a severely injured and
disabled firefighter under active treatment by doctors the City selected for
him. As stated in the First District’s original panel opinion:

Under
this law, the City — not Westphal — had the right to select and, if
appropriate, de-select, the doctors who would treat his work-related injuries.
Through this statutory system of recovery, the City had the right to meet and
confer with their selected doctors without Westphal’s involvement, and obtain
otherwise-confidential medical information — whether or not Westphal consented
to such communications. And the City had the right to make decisions as to
whether it would authorize the medical treatment recommended by the doctors of
its choosing. For his part, Westphal, removed from his otherwise inherent right
to select his medical providers and make unfettered decisions about his medical
care, was required to follow the recommendations of the doctors authorized by
his employer. Should he fail to do so, he risked losing entitlement to his
workers’ compensation benefits, his only legal remedy.

As
part of his medical care, Westphal required multiple surgical procedures,
culminating in a five-level fusion of the lumbar spine. Under chapter 440,
Westphal was then required to refrain from working and go without disability
pay or wages — and wait. Westphal had to wait until the [City’s]
authorized doctors opined that he had reached maximum medical improvement, with
no guarantee that such a day would ever come. But, even once he fully
recovered, Westphal could not, under normal circumstances, recover disability
benefits for the indeterminate waiting period.

Westphal v. City of St. Petersburg/City of St. Petersburg
Risk Mgmt., No. 1D12-3563, slip op. at 7-8 (Fla. 1st DCA Feb. 28, 2013)
[38 Fla. L. Weekly D2029a] (footnote omitted) (emphasis added), opinion
withdrawn and superseded on rehearing en banc by Westphal, 122 So. 3d 440.
In other words, even though doctors chosen by the City had performed multiple
surgical procedures culminating in a five-level spinal fusion, because those
same doctors did not render an opinion that Westphal had reached maximum
medical improvement — that is, that he had reached the end of his medical
recovery and would improve no further — Westphal was not yet eligible for
permanent total disability benefits. And there was no way to know when those
doctors would determine that he had reached maximum medical improvement,
leaving Westphal without disability benefits for an indefinite amount of time
while he was still totally disabled and incapable of working.

In comparing the rights of a worker such as Westphal injured
on the job today with those of a worker injured in 1968, the extent of the
changes in the workers’ compensation system is dramatic. A worker injured in
1968 was entitled to receive temporary total disability benefits for up to 350
weeks. See § 440.15(2), Fla. Stat. (1968). In 1990, the Legislature
reduced the availability of temporary total disability benefits from 350 to 260
weeks — a 25.7% reduction of two years. See ch. 90-201, § 20, Laws of
Fla. Then, in 1993, the Legislature again reduced the availability of temporary
total disability benefits, this time from 260 weeks to 104 weeks — a 60%
reduction. See ch. 93-415, § 20, Laws of Fla. This means that an injured
worker such as Westphal is now eligible to receive only 104 weeks of temporary
total disability benefits — a massive 70% reduction when compared to the
temporary total disability benefits available in 1968.

It is uncontroverted that decreasing substantially the
period of payments from 350 weeks to 104 weeks, standing alone, results in a
dramatic reduction from almost seven years of disability benefits down to two
years. Whereas almost seven years or even five years post-accident should be a
reasonable period for an injured worker to achieve maximum medical improvement,
clearly two years is not for the most severely injured of workers, like
Westphal, who might be in need of multiple surgical interventions.

Currently, at the conclusion of the 104-week limit,
temporary total disability benefits cease, regardless of the condition of the
injured worker. Therefore, rather than receive “full medical care and wage-loss
payments” for a continuing disability, as the workers’ compensation law was
intended, an injured worker’s full medical care and wage-loss payments are
eliminated after 104 weeks if the worker falls into the statutory gap. This is
true even if the worker remains incapable of working for an indefinite period
of time, based on the advice of the employer-selected doctors.

Recognizing the constitutional implications of such a
statutory scheme, Judge Van Nortwick, in his dissent in Hadley, cogently
noted:

[I]n
the case of a totally disabled claimant whose rights to temporary disability
benefits has expired, but who is prohibited from receiving permanent disability
benefits, the elimination of disability benefits may reach a point where the
claimant’s cause of action has been effectively eliminated. In such a case, the
courts might well find that the benefits under the Workers’ Compensation Law
are no longer a reasonable alternative to a tort remedy and that, as a result,
workers have been denied access to courts.

78 So. 3d at 634 (Van Nortwick, J., dissenting). We have now
reached that point at which “the claimant’s cause of action has been
effectively eliminated” — the constitutional “tipping point” of which Judge
Van Nortwick forewarned.

We conclude that the 104-week limitation on temporary total
disability benefits, as applied to a worker like Westphal, who falls into the
statutory gap at the conclusion of those benefits, does not provide a
“reasonable alternative” to tort litigation. Under the current statute, workers
such as Westphal are denied their constitutional right of access to the courts.
We agree with the point our colleague, Justice Lewis, makes in his concurring
in result opinion that:

Under
the plain language of the statute, many hardworking Floridians who become
injured in the course of employment are denied the benefits necessary to pay
their bills and survive on a day-to-day basis. The inequitable impact of this
statute is patent because it provides permanent total disability benefits to
the disabled worker who reaches maximum medical improvement quickly, but
arbitrarily and indefinitely terminates benefits to other disabled workers —
i.e., until the employee proves that he or she is permanently and totally
disabled once maximum medical improvement is attained, even where there is
no dispute that the employee is totally disabled at the time the temporary
benefits expire, and even if maximum medical improvement will occur in the
future.

Concurring in result op. of Lewis, J., at 39-40 (footnote
omitted) (emphasis in original).

Sadly, Westphal’s case is not an isolated one. As observed
by Judge Thomas in the First District’s panel opinion:

When an employee sustains
serious injuries that require prolonged or complicated medical treatment, it
is not unusual for that claimant to exhaust entitlement to 104 weeks of
temporary disability benefits before reaching maximum medical improvement (the
status of full medical recovery) — paradoxically leaving only seriously
injured individuals without compensation for disability while under medical
instructions to refrain from work that cannot be ignored lest a defense of
medical non-compliance be raised. Although this result is anathema to the
stated purposes of chapter 440, providing injured workers with prompt medical and
indemnity benefits, this court has held on numerous occasions that an award of
permanent total disability benefits is premature until an injured worker
reaches the stage of full medical recovery.

Westphal, No. 1D12-3563, slip op. at 17-18
(footnote omitted) (emphasis added).

Although Westphal has not argued at length that this Court
should declare the entire workers’ compensation law unconstitutional, the
statutory gap cannot be viewed in isolation from the remainder of the statutory
scheme. Over the years, there has been continuous diminution of benefits and
other changes in the law. For example, during the same period of time in which
the Legislature reduced the provision of disability benefits, the Legislature
also gave employers and insurance carriers the virtually unfettered right to
select treating physicians in workers’ compensation cases. See §
440.13(2)(f), Fla. Stat. (2009); see also Butler v. Bay Ctr./Chubb Ins. Co.,
947 So. 2d 570, 572-73 (Fla. 1st DCA 2006). Further, the right of the employee
and the employer to “opt out” of the workers’ compensation law, and preserve
their tort remedies, was repealed. See §§ 440.015, 440.03, Fla. Stat.
(2009). Other changes have included a heightened standard that the compensable
injury be the “major contributing cause” of a worker’s disability and need for
treatment, and a requirement that the injured worker pay a medical copayment
after reaching maximum medical improvement. See §§ 440.09(1),
440.13(14)(c), Fla. Stat. (2009).

The current law also allows for apportionment of all medical
costs based on a preexisting condition. See § 440.15(5), Fla. Stat.
(2009). As Judge Webster has observed, allowing for the apportionment of
medical costs means that “injured workers will be less likely to seek medical
treatment, making it more likely that they will be unable to return to the
workplace.” Staffmark v. Merrell, 43 So. 3d 792, 798 (Fla. 1st DCA 2010)
(Webster, J., concurring). This change, Judge Webster commented, significantly
reduces the benefits to which many injured workers are entitled, thereby
leading to a reasonable conclusion that “the right to benefits has become
largely illusory.” Id.

Although this Court in Martinez, 582 So. 2d at
1171-72, upheld the 1990 version of the workers’ compensation law on constitutional
grounds, we wholeheartedly agree with Judge Thomas’s conclusion that the
current version of the law presents a materially different situation:

We
are now presented with a different iteration of the Workers’ Compensation Law
from that addressed in Martinez — one which today provides an injured
worker with limited medical care, no disability benefits beyond the 104-week
period, and no wage-loss payments, full or otherwise. And, the lack of
disability compensation occurs only because the severely injured worker has
not reached maximum medical improvement as to the very injury for which
redress is guaranteed under the Florida constitution.

The
natural consequence of such a system of legal redress is potential economic
ruination of the injured worker, with all the terrible consequences that this
portends for the worker and his or her family. A system of redress for injury
that requires the injured worker to legally forego any and all common law right
of recovery for full damages for an injury, and surrender himself or herself to
a system which, whether by design or permissive incremental alteration,
subjects the worker to the known conditions of personal ruination to collect
his or her remedy, is not merely unfair, but is fundamentally and manifestly
unjust. We therefore conclude that the 104-week limitation on temporary total
disability benefits violates Florida’s constitutional guarantee that justice
will be administered without denial or delay.

Westphal, No. 1D12-3563, slip op. at 18-19
(footnote omitted).

Thus, under the access to courts analysis articulated in Kluger,
the only way to avoid a holding of unconstitutionality under these
circumstances would be to demonstrate an overwhelming public necessity to
justify the Legislature’s elimination of temporary total disability benefits
after 104 weeks for our most injured workers. See Kluger, 281 So. 2d at
4. We conclude that this showing has not been made. The statute is
unconstitutional as applied.

Accordingly, the question becomes one of remedy. “Florida law
has long held that, when the legislature approves unconstitutional statutory
language and simultaneously repeals its predecessor, then the judicial act of
striking the new statutory language automatically revives the predecessor
unless it, too, would be unconstitutional.” B.H. v. State, 645 So. 2d
987, 995 (Fla. 1994). We therefore conclude that the proper remedy is the
revival of the pre-1994 statute that provided for a limitation of 260 weeks of
temporary total disability benefits. See § 440.15(2)(a), Fla. Stat.
(1991). The provision of 260 weeks of temporary total disability benefits
amounts to two and a half times more benefits — five years of eligibility for
benefits rather than only two — and thus avoids the constitutional infirmity
created by the current statutory gap as applied to Westphal.

In this regard, we respectfully disagree with the assertion
in Justice Lewis’s concurring in result opinion that this remedy is
insufficient because it still allows for the possibility of a statutory gap,
and would therefore unconstitutionally deprive claimants of access to courts.
Concurring in result op. of Lewis, J., at 35. In fact, as we have indicated
throughout this opinion, we previously held that the pre-1994 statute’s
limitation of 260 weeks “passes constitutional muster” because it “remains a
reasonable alternative to tort litigation,” where a worker “is not without a
remedy.” Martinez, 582 So. 2d at 1171-72. Although the length of time
available for the administration of temporary total disability benefits to a
worker before the worker reaches maximum medical improvement does involve line
drawing, the difference between a period of only two years (104 weeks) and five
years (260 weeks) is significant as it relates to the time it takes a worker to
attain maximum medical improvement.

III.
CONCLUSION

For all the reasons explained in this opinion, we hold
section 440.15(2)(a), Florida Statutes (2009), unconstitutional as applied to
Westphal and all others similarly situated, as a denial of access to courts under
article I, section 21, of the Florida Constitution. The statute deprives a
severely injured worker of disability benefits at a critical time, when the
worker cannot return to work and is totally disabled, but the worker’s doctors
— chosen by the employer — determine that the worker has not reached maximum
medical improvement.

Such a significant diminution in the availability of
benefits for severely injured workers, particularly when considered in
conjunction with the totality of changes to the workers’ compensation law from
1968, when the access to courts provision was added to our Constitution, to the
present, is unconstitutional under our precedent. Accordingly, we quash the
First District’s en banc decision in Westphal and remand this case to
the First District for further proceedings consistent with this opinion.

It is so ordered. (LABARGA, C.J., and QUINCE, and PERRY,
JJ., concur. LEWIS, J., concurs in result with an opinion. CANADY, J., dissents
with an opinion, in which POLSTON, J., concurs.)

__________________

(LEWIS, J., concurring in result.) I agree with the
conclusion reached by the majority that section 440.15(2)(a) is
unconstitutional as applied to Bradley Westphal. Valiant judicial attempts to
salvage the statute notwithstanding, the statutory gap that resulted from the
limitations in section 440.15(2)(a) is a plain denial of the right of access to
courts guaranteed by the Constitution of this State to Floridians who, after
104 weeks, may still be totally disabled due to injuries received in the course
of their employment.

However, at this point in time, I conclude that the remedy
relied upon by the majority is insufficient. Statutory revival of the 1994
limitation, which provides for the administration of temporary total disability
for 360 weeks, may provide relief for those individuals who remain totally
disabled but have not been deemed permanently disabled at the end of 104 weeks.
However, this remedy simply moves the goalposts without eliminating the
unconstitutional statutory gap that will still persist for those who remain
totally — but not permanently — disabled after 360 weeks. Therefore, I do not
believe that this is a situation in which statutory revival is appropriate. Cf.
B.H. v. State, 645 So. 2d 987, 995 (Fla. 1994) (“[T]he judicial act of
striking the new statutory language automatically revives the predecessor unless
it, too, would be unconstitutional.” (emphasis added)). In my opinion, the
only appropriate remedy would be to require the Legislature to provide a
comprehensive, constitutional Workers’ Compensation scheme, rather than
rely on the courts to rewrite existing law or revive prior law. I believe that
the remedy provided today fails to fully address the problems with the Workers’
Compensation scheme because it will still leave some injured Florida workers
without access to benefits to which they are entitled. Thus, the majority
decision leaves Florida workers in an only marginally better position than they
were in prior to this matter by failing to address and remove the inadequate
alternative remedy, thereby leaving the Workers’ Compensation scheme
unconstitutional and in need of major reform. As I see it, such a system is
fundamentally unconstitutional and in need of legislative — not judicial —
reform.

Over time, the Florida judiciary has repeatedly rewritten
provisions of the Workers’ Compensation law to avoid a declaration of
unconstitutionality. No fair-minded individual who reads these decisions can
reasonably conclude that they involve simple statutory interpretation. See,
e.g., Newton v. McCotter Motors, Inc., 475 So. 2d 230, 231-32 (Fla. 1985)
(Ehrlich, J., dissenting) (disagreeing with the holding that section 440.16(1),
which provides that for a death to be compensable under the Workers’
Compensation law, it “must result within one year of the accident or must
follow continuous disability and must result from the accident within five
years of the accident,” see id. at 230, and does not violate access to
courts for deaths that occur more than five years after the accident; noting
that “[b]enefits paid during the life of the worker . . . cannot, and never
were intended by the legislature to, substitute as a reasonable alternative for
a cause of action for wrongful death”); Rhaney v. Dobbs House, Inc., 415
So. 2d 1277, 1279 (Fla. 1st DCA 1982) (upholding statutory provision that the
American Medical Association Guides to the Evaluation of Permanent Impairment
shall be used to determine permanent impairment until a permanent schedule is
adopted; noting that “[a]lthough the provisions of § 440.15(3)(a)3. are not
unconstitutional per se, they could be unconstitutional in their application if
this section were interpreted to mean that there could be no permanent
impairment unless a medical doctor testified from the AMA Guides as to a
certain percentage of permanent impairment set forth therein. However, the
section should not be interpreted in that fashion.”).6 I have a full appreciation for the
judicial attempts to save the Workers’ Compensation statute from total
disaster. Florida needs a valid Workers’ Compensation program, but the charade
is over. Enough is enough, and Florida workers deserve better.

The judicial rewriting of a problematic statute is no more
evident than in the present case where section 440.15 has been rewritten not
once, but twice. See Westphal, 122 So. 3d at 444 (avoiding a
constitutional challenge by holding that under section 440.15(2)(a), “an
injured worker who is still totally disabled at the end of his or her
eligibility for temporary disability benefits is deemed to be at maximum
medical improvement as a matter of law, even if the worker may get well enough
someday to return to work”); City of Pensacola Firefighters v. Oswald,
710 So. 2d 95, 98 (Fla. 1st DCA 1998) (bridging the unconstitutional gap by
holding that to be eligible for permanent total disability benefits, “an
employee whose temporary benefits have run out — or are expected to do so
imminently — must be able to show not only total disability upon the cessation
of temporary benefits but also that total disability will be ‘existing after
the date of maximum medical improvement’ ”); see also Matrix Emp. Leasing,
Inc. v. Hadley, 78 So. 3d 621, 632 (Fla. 1st DCA 2011) (Van Nortwick, J.,
dissenting) (“[B]oth the approach adopted in Oswald (and reaffirmed by
the majority opinion) and the approach expressed in the dissent are judicial
‘patches’ crafted to attempt to avoid a material ‘gap’ in disability benefits
for injured workers who remain totally disabled on the expiration of temporary
disability benefits. In my view, our concern with this potential ‘gap’ is not
simply a humanitarian concern for particular claimants, but is based on our
interest in avoiding a potential constitutional issue.”). Although both
rewrites of section 440.15 may have been good faith attempts to protect injured
workers, neither cures the underlying invalidity of the statute.7 One need only consider the multiple
opinions in this case to understand the essential problem.

The truth of the matter is that section 440.15 is hopelessly
broken and cannot be constitutionally salvaged. The judicial branch must
terminate the practice of rewriting the statute. Under the plain language of
the statute, many hardworking Floridians who become injured in the course of
employment are denied the benefits necessary to pay their bills and survive on
a day-to-day basis.8 The inequitable impact of this
statute is patent because it provides permanent total disability benefits to
the disabled worker who reaches maximum medical improvement quickly, but
arbitrarily and indefinitely terminates benefits to other disabled workers —
i.e., until the employee proves that he or she is permanently and totally
disabled once maximum medical improvement is attained, even where there is
no dispute that the employee is totally disabled at the time the temporary
benefits expire, and even if maximum medical improvement will occur in the
future. Where totally disabled workers can be routinely denied benefits for
an indefinite period of time, and have no alternative remedy to seek
compensation for their injuries, something is drastically, fundamentally, and
constitutionally wrong with the statutory scheme. See Kluger v. White,
281 So. 2d 1, 4 (Fla. 1973) (“[W]here a right of access to the courts for
redress for a particular injury has been provided by statutory law predating
the adoption of the Declaration of Rights of the Constitution of the State of
Florida, or where such right has become a part of the common law of the State
pursuant to Fla. Stat. § 2.01, F.S.A., the Legislature is without power to
abolish such a right without providing a reasonable alternative to protect the
rights of the people of the State to redress for injuries.”).

The reality is that Workers’ Compensation benefits have been
steadily chipped away and reduced by the Legislature to such an extent that
intelligent, able jurists have now concluded enough is enough and declared the
entire statutory scheme unconstitutional. See Cortes v. Velda Farms, No.
11-13661-CA-25, 2014 WL 6685226 at *10 (11th Cir. Ct. Aug. 13, 2014) (“As a
matter of law, Chapter 440, effective October 1, 2003[,] is facially unconstitutional
as long as it contains § 440.11 as an exclusive replacement remedy.”), overruled
for mootness and lack of standing by State v. Fla. Workers’ Advocates, 167
So. 3d 500 (Fla. 3d DCA 2015). Although the majority opinion does not take this
step, it too has recognized that Workers’ Compensation benefits have been
steadily eroded. Majority op. at 29. I submit that the time has come for this
Court to uphold its sacred and constitutional duty and simply apply the words
of the Legislature. In lieu of continuing to uphold the Workers’ Compensation
law with rewrites, judicial patches, and flawed analyses, Chapter 440 should be
invalidated where defective and the Legislature required to provide a valid,
comprehensive program.

Florida families presume that when they report to work every
day and perform their duties with dedication and diligence, a valid Workers’
Compensation program will be in place should they ever become injured on the
job and be precluded from seeking access to our courts. Indeed, the Workers’
Compensation law was, at least initially, created to deliver adequate, fair,
and prompt disability benefits to injured workers and balance workers’ rights
with business interests. However, section 440.15 — both under its plain
meaning, and as interpreted by the majority today — denies that critical
safety net to the most seriously injured by hinging the award of permanent
total disability benefits upon the attainment of maximum medical improvement,
which cannot occur until a future date, but eliminates benefits until that
future date arrives. I cannot vote to uphold this statute, or the
interpretation of this statute, that denies such fundamental rights to the
hardworking citizens of this State. It is time that both business interests and
workers receive a valid, balanced program that can operate as Florida moves
into its economic future.

Accordingly, I concur in result.

__________________

(CANADY, J., dissenting.) I agree with the majority that
Westphal should prevail on his argument — with which the City and the State
agree — that the District Court erred in concluding that he should be “deemed
to be at maximum medical improvement, regardless of any potential for
improvement[,]” Westphal v. City of St. Petersburg/City of St. Petersburg
Risk Management, 122 So. 3d 440, 446 (Fla. 1st DCA 2013), upon the
expiration of his eligibility for temporary total disability benefits. Majority
op. at 3-4. As the majority explains, the District Court’s interpretation
effectively rewrites the statute. I therefore would answer the certified
question in the negative. But I would reject Westphal’s argument that the
statutory limitation on the period of eligibility for temporary total
disability benefits violates the right of access to courts provided for in
article I, section 21 of the Florida Constitution.

In the foundational case of Kluger v. White, 281 So.
2d 1, 4 (Fla. 1973) (emphasis added), we set forth the test for determining
whether an access-to-courts violation has occurred:

[W]here
a right of access to the courts for redress for a particular injury has been
provided by statutory law predating the adoption of the Declaration of Rights
of the [1968] Constitution of the State of Florida, or where such right has
become a part of the common law of the State pursuant to [section 2.01, Florida
Statutes], the Legislature is without power to abolish such a right
without providing a reasonable alternative to protect the rights of the people
of the State to redress for injuries, unless the Legislature can show an overpowering
public necessity for the abolishment of such right, and no alternative method
of meeting such public necessity can be shown.

The threshold question in evaluating an access-to-courts
claim therefore is whether the Legislature has abolished a right of redress
that was in existence when the access to courts provision was incorporated into
the 1968 Constitution.

Here, the challenged statutory provision restructures an
existing right of redress. It does not abolish that right. The State argues
persuasively that “today’s workers’ compensation system allowed Westphal
substantially greater temporary total disability benefits than any 1968
statutory right provided” and that “[t]he amendment limiting temporary total
disability benefits to 104 weeks, therefore, did not ‘abolish’ any pre-existing
right.” State’s Answer Brief at 14. Westphal does not dispute the State’s
assertion that the aggregate compensation paid to him for temporary total
disability benefits substantially exceeded the aggregate compensation for such
benefits that would have been available under the pre-1968 law, even when the
pre-1968 benefits are adjusted for inflation. Instead, he contends that “[t]his
case is about weeks, not about dollars.” Petitioner’s Reply Brief at 9. But the
decision to substantially increase weekly compensation for temporary total
disability and to reduce the number of weeks that such benefits are paid is a
trade-off that is a matter of policy within the province of the Legislature.
The Legislature — rather than this Court — has the institutional competence
and authority to make such policy judgments.

We have long recognized that the Legislature should be
afforded latitude in the structuring of remedies both outside the worker’s
compensation context, see, e.g., White v. Clayton, 323 So. 2d 573 (Fla.
1975), and within the workers compensation context, see, e.g., Acton v. Fort
Lauderdale Hosp., 440 So. 2d 1282 (Fla. 1983). We should do likewise here
and reject Westphal’s access-to-courts challenge.9 (POLSTON, J., concurs.)

__________________

1In its decision, the First District
ruled upon the following question, which it certified to be of great public
importance:

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?

Westphal, 122 So. 3d at 448. We have
jurisdiction. See art. V, § 3(b)(4), Fla. Const. Because of our
conclusion that the First District’s interpretation of the statute cannot
withstand scrutiny, and our holding that the statute is unconstitutional, we do
not specifically answer the certified question. As our analysis in this opinion
explains, to the extent the certified question simply asks whether the workers’
compensation law constitutionally permits the statutory “gap” at issue, we
answer that question in the negative.

2To the extent Justice Lewis’s
concurring in result opinion suggests as a remedy that chapter 440 should be
“invalidated where defective,” the remedy of invalidating other sections in
chapter 440 beyond section 440.15(2)(a) is not properly before us. In his
briefing on this matter to the Court, Westphal requested reversal of the en
banc decision of the First District Court of Appeal to “either reinstate the
panel decision” — which revived the pre-1994 statute that provided for the
administration of 260 weeks of temporary total disability benefits — or hold
“that the 104 weeks limitation on temporary disability” is “unconstitutional as
applied to the facts of this case and do so prospectively.” Petitioner’s
Initial Brief at 47. Because we hold that the statute is unconstitutional as
applied to Westphal and others similarly situated, we have granted Westphal’s
requested relief of reversing the en banc decision of the First District Court
of Appeal and will not consider an argument of the unconstitutionality of the
entire workers’ compensation law when the parties have not raised such an
expansive remedy. Although the remedy of invalidating the entire workers’
compensation law was suggested at some length by the Florida Workers’ Advocates
in an amicus curiae brief filed in support of Westphal, we do not consider
arguments raised by amici curiae that were not raised by the parties. See
Riechmann v. State, 966 So. 2d 298, 304 n.8 (Fla. 2007); Dade Cty. v. E.
Air Lines, Inc., 212 So. 2d 7, 8 (Fla. 1968); Michels v. Orange Cty.
Fire Rescue, 819 So. 2d 158, 159-60 (Fla. 1st DCA 2002).

3Both Westphal and the City invoked
this Court’s discretionary jurisdiction. We consolidated the petitions but
retained the two different case numbers. During briefing, we treated Westphal
as the petitioner and the City as the respondent, and we accordingly employ
those same designations here.

4Section 440.12(1), Florida Statutes
(2009), provides: “No compensation shall be allowed for the first 7 days of the
disability, except benefits provided for in s. 440.13. However, if the injury
results in disability of more than 21 days, compensation shall be allowed from
the commencement of the disability.” Section 440.14(3), Florida Statutes
(2009), provides in part: “The department shall establish by rule a form which
shall contain a simplified checklist of those items which may be included as
‘wage’ for determining the average weekly wage.”

5As defined in section 440.02(22),
Florida Statutes (2009), “permanent impairment” means “any anatomic or
functional abnormality or loss determined as a percentage of the body as a
whole, existing after the date of maximum medical improvement, which results
from the injury.”

6This Court has also held that the
invalidation of a comprehensive revision to the Workers’ Compensation law for a
single-subject violation should operate prospectively to avoid “the substantial
impact on the entire workers’ compensation system if we were to hold [the
chapter law] void ab initio.” Martinez v. Scanlan, 582 So. 2d 1167, 1176
(Fla. 1991). But see id. at 1177 (Barkett, J., concurring in part and
dissenting in part) (“I do not believe it is the function of the judiciary to suspend
constitutional principles to accommodate administrative convenience.”).

7Further, it is not the role of the
judiciary to rewrite a problematic statute. See Brown v. State, 358 So.
2d 16, 20 (Fla. 1978) (“When the subject statute in no way suggests a saving
construction, we will not abandon judicial restraint and effectively rewrite
the enactment.”).

8Moreover, there is no way to
determine how many of these injured and disabled workers actually exist. Many
may choose to suffer in silence rather than fight a system that is so obviously
and drastically skewed against them. Thus, the number of disabled workers who
are entitled to permanent total disability benefits — but cannot receive them
because they have not yet reached maximum medical improvement — may be larger
than anyone knows.

9I am inclined to agree with Judges
Benton and Thomas that competent substantial evidence does not support the
determination by the Judge of Compensation Claims that Westphal did not
establish that he would meet the requirements for permanent total disability
when he reached maximum medical improvement. See Westphal v. City of St.
Petersburg/City of St. Petersburg Risk Management, 122 So. 3d 440, 450
(Fla. 1st DCA 2013) (Benton, J., concurring in result); id. at 459-64
(Thomas, J., concurring in result only, and dissenting in part). But Westfall
has not presented any argument to us on this point.

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