A St. Petersburg, Florida firefighter has successfully challenged a pro-employer worker’s compensation reform that limited the duration of temporary disability benefits to 104 weeks.
Bradley Westphal was injured in the line of duty on December 11, 2009. He ran out of temporary disability comp benefits two years later, and was medically unable to return to work. Because he had not reached his maximum medical improvement he was deemed ineligible for permanent disability benefits. As a result he received no compensation despite the fact that his disability was directly attributable to a line of duty injury.
Westphal appealed the denial of his permanent benefits arguing that the 104 week limitation on benefits as unconstitutional under the Florida state constitution. The Article I, Section 21 of the Florida constitution states:
Access to courts. The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.
Here is the court’s analysis in its own words:
Westphal, a firefighter and paramedic, injured his back and knee in the course of his employment. Westphal suffered severe injuries, resulting in nerve damage in the legs and requiring spine surgery and other medical treatment… .
The [fire department and the workers comp insurer] accepted the injury as compensable and paid Westphal temporary total disability benefits… .
While recovering from the most recent surgery, and while on a total disability status as declared by his workers’ compensation doctors, Westphal’s entitlement to the 104 weeks of temporary total disability benefits expired… . At this point … Westphal was 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 that he was losing because of his injuries, approximately $1,500 per week, Westphal … filed a claim for permanent total disability benefits—a classification of benefits available to workers who have a disability total in quality and permanent in duration.
[The workers comp court] properly denied Westphal’s request for permanent total disability benefits, finding that because Westphal had not reached maximum medical improvement, it was too speculative to determine whether he would remain totally disabled from a physical standpoint after his maximum medical improvement status was reached…. [The court] acknowledged, Westphal fell into the “statutory gap” for indemnity benefits: He could no longer receive temporary benefits, and he was not yet eligible for permanent total disability benefits…. “
When the 104-week limit on Florida’s temporary total disability is compared to limits in other jurisdictions, it becomes readily apparent that the current limit is not adequate and does not comport with principles of natural justice…. The overwhelming majority of jurisdictions—in excess of forty—allow a minimum of 312 weeks, three times the benefits provided to Florida’s injured workers, up to a maximum entitlement of unlimited duration (i.e., for the duration of disability). Only five jurisdictions limit disability benefits to 104 weeks, and one of those has enough exceptions to allow for the receipt of disability benefits for up to seven years. …
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.
Further, we hold that there is simply no public necessity, much less an overpowering one, that has been demonstrated to justify such a fundamentally unjust system of redress for injury. In fact, workers’ compensation insurance premiums have declined dramatically in Florida since 2003, falling 56%. …
[T]he 104-week limitation is not an adequate substitute for the benefits provided to seriously injured workers in 1968, and no public necessity can justify the unjust nature of the system of redress available today. …
In striking down the 104 week limitation, the court referred to the provision as “draconian”, and rejected the Solicitor General’s argument that the limitation was a “public necessity” to help employers manage insurance costs.
The decision was issued last Thursday, February 28, 2013. Here is a copy of the ruling. Bradley Westphal v.City of St.Petersburg
More on the story.
Cyberbullying – The Ugly Side of Social Media
We have all seen the comical photos of Walmart shoppers in various modes of dress and undress. One performer has even made several humorous music videos depicting the weirdos and crazies.
Facebook itself had its origins by showing photos of college students and allowing people to rate them as “hot or not”. It’s all in good fun, right? No harm, no foul.
So what is going on in Emmitsburg, Maryland, home of the US Fire Administration and the National Fire Academy, where a mother has declared war on cyberbullying after a firefighter posted photos of her daughter on line accompanied by unflattering comments.
Sherry Myers is furious about photos of her daughter Jayden that were posted online by a Pennsylvania firefighter that mocks her shoes, and asks people to guess whether Jayden is a boy or a girl.
It’s the other side of the laughter… the painful side… the ugly side of social media.
Here is a link to Sherry’s Facebook page, which she has aptly named Justice for Jayden. Spend some time there and read some of the comments from those who have been hurt by cyberbullies.
Here is more on the story itself.
While all the facts have yet to be sorted out in the Myers case – let me make a few points about where we are law wise on cyberbullying.
Here in the US, the laws are way behind the times. While some states have enacted laws to address cyberbullying, most states rely upon tort privacy laws developed in the 1800s and 1900s. These laws did a decent job until fairly recently. Today they are being asked to address an entirely new problem… and it may be a task they are not up to.
Is it really an entirely new problem? Bullying has always been around and always will be – but when it comes to spreading hurtful information on a massive scale – I say what we are facing is an entirely new problem.
In the late 1800s, how would one go about spreading embarrassing rumors, malicious falsehoods, or even breach a person’s right to privacy on a massive scale? The options were pretty limited and usually required large sums of money to take out newspaper ads, or influence reporters and editors in order to spread a story very far. The spreading of the story would be relatively slow compared with today – and the courts did offer some remedies that could address those mean spirited activities. Newspapers also had to be concerned about such suits and thus had an incentive to do some self-policing of what was published.
The 1900s brought us new means of mass communications through radio and later television. Still these methods of communication were beyond the financial means of most people and the law offered realistic remedies to address any wrongdoing that did occur. Like the newspapers, radio and television stations themselves had good reason to watch what was said out of fear of becoming the target of such a suit.
But what about spreading malicious information in the Internet Age – where virtually anyone can communicate with thousands, even millions, for free and virtually instantly? What about the fact that people who have no financial footprint to speak of can spread malicious information to an unprecedented degree with little to no risk of legal consequences? No self-policing… they are judgment-proof… or close enough to make the cost of a civil suit unrealistic for most people.
How exactly does the law – developed originally to address problems back in the Pony Express days, give Sherry and Jayden Myers some measure of comfort, some justice?
And just as importantly, how do we, as members of the Internet community, draw our own lines about what is and is not fair game when it comes to humor, satire and parody?
The two issues are linked… or at least they should be.
Can we protect Jayden and still have our funny Walmart photos? Is there a line that can be drawn that makes one OK and the other not?
The law should reflect the ethical choices we as a society believe in.
Posted in Ethics, First Amendment, Humor, Municipal Liability, Social Media, You Can't Make This Stuff Up
Tagged digital imagery, Justice for Jayden, malicious comments, privacy, Sherry Myers