5-Hour Law and Ethics Update
As part of the passing of HB 725 on October 1, 2012, adjusters are now required to complete a mandatory 5-Hour Law and Ethics Update CE Course every 2 years specific to the license held by the licensee. The new law will affect those licensees who began their continuing education cycle on November 1, 2012 and will complete the compliance cycle in October, 2014.
This requirement is directly tied to CE compliance cycles ending 9/30/14 or earlier, and CE compliance cycles ending 10/31/14 or later. The licensees compliance period begins with the end of your birth month following the second anniversary of the first license issuance date, and then biennially thereafter. In addition to the five-hour course, adjusters will be required to participate in 19- hours of elective credits, approved by the department and focusing on their specific line of insurance.
HB 725: Understanding the Upcoming CE Changes
NEW APPELLATE DECISION- Opinion Filed September 23, 2013
Bradley Westphal v. City of St. Petersburg
Case No. 1D12-3563
Westphal v. City of St. Petersburg/City of St. Petersburg Risk Management/State of Fl.,___So.3d___(Fla.1st DCA 9/23/2013)Constitutionality of Cap on 104 Weeks of TTD/Ripeness of PTD claims
In a lengthy 18 page majority opinion, followed by 58 pages of dissenting views, a bitterly divided First District Court of Appeal receded en banc from the February 2013 three judge panel opinion in Westphal v. City of St. Petersburg, and reaffirmed the validity of the Florida Workers’ Compensation law. Sharply reversing course, the Court determined that the 104 week cap on TTD benefits is constitutionally sound. The Court, however, went further. The Court also receded from its 2011 en banc decision in Matrix Employee Leasing, Inc. v. Hadley, and ruled that a claimant in TTD status at the expiration of the 104 weeks is eligible to receive PTD benefits. This mammoth opinion may not be the last word because the Court also certified the following question to the Supreme Court of Florida:
"Is a worker who is totally disabled as a result of the work place 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?”
The question, however, might remain unanswered by the Supreme Court. The District Court’s certification of a question does not, by itself, send the case to the Supreme Court for review. A party must first seek review in the Supreme Court. It remains to be seen whether the City will seek Supreme Court review or will simply pay the nine months worth of past PTD benefits now due to Mr. Westphal. As the prevailing party Mr. Westphal is unlikely to seek review in the Supreme Court. Moreover, the Supreme Court is not required to accept the case even if asked. The Supreme Court is authorized to consider a certified question, but is permitted to decline to do so.
Assuming no review by the Supreme Court, we should consider the en banc decision to be a victory for industry, albeit one with a caveat. Under Westphal, a claimant who remains in TTD status at the expiration of the 104 weeks of temporary benefits becomes entitled to PTD benefits for as long as the claimant remains totally disabled. When that claimant is eventually released to return to work the entitlement to PTD benefits ceases. In practice, it means that a very small number of claimants will receive at least some PTD benefits before reaching overall MMI. Although this may ruffle some feathers in the claims community, the original Westphal decision had far-reaching and potentially disastrous consequences for the workers’ compensation system. As noted by Judge Wetherell in his dissenting opinion, the panel decision, had it survived, "could have led to the incremental dismantling of the entire workers’ compensation system.” While the en banc opinion may not be perfect, its predecessor was far worse. Stay tuned.