         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D18-1988
                 _____________________________

WILLIAM KNEER,

    Appellant,

    v.

LINCARE and TRAVELERS
INSURANCE,

    Appellees.
                 _____________________________


On appeal from an order of the Judge of Compensation Claims.
Stephen L. Rosen, Judge.

Date of Accident: June 30, 2014.

                          April 3, 2019


OSTERHAUS, J.

     In this workers’ compensation appeal, Claimant argues that
§ 440.093(3), Florida Statutes, is unconstitutional, and that the
finding that he had no psychiatric work restrictions is unsupported
by competent substantial evidence. We affirm.

                                   I.

    The facts are not in dispute. Claimant suffered an accident
and back injury arising out of work performed in the course and
scope of his employment in 2014. After the injury, Claimant
underwent extensive back surgery. Claimant reached maximum
medical improvement (MMI) for his back injury in January 2016,
with a 10% permanent impairment. He was assigned permanent
physical restrictions, including restrictions related to his ability to
lift, carry, and stand.

     About 18 months later, in August 2017, Claimant filed a
petition for benefits (PFB) seeking psychological treatment for
depression relating to his back injury. This claim did not arise from
a new physical injury, but from the original accident and back
injury. The employer/carrier (E/C) accepted compensability and
authorized treatment. Claimant then filed a PFB in December
2017, seeking temporary partial disability (TPD) benefits
extending back to January 2016, the date of physical MMI, for his
mental injury.

     The E/C opposed this petition asserting that the temporary
disability claim was unsupported by the record and precluded by
the workers’ compensation statute, which cuts off temporary
benefits for psychiatric injuries six months after a claimant
reaches physical MMI. See § 440.093(3), Fla. Stat. The JCC agreed
with the E/C’s argument and denied temporary disability benefits,
citing § 440.093(3), as well as Utopia Home Care/Guarantee
Insurance Co. v. Alvarez, 230 So. 3d 72 (Fla. 1st DCA 2017), and
School Board of Lee County v. Huben, 165 So. 3d 865 (Fla. 1st DCA
2015).

                                  II.

     On appeal, Claimant brings a constitutional challenge to
§ 440.093(3)’s six-month limitation on temporary disability
benefits for mental injuries once physical MMI is reached. He
argues first that § 440.093(3) unconstitutionally denies his access
to the courts, due process, and equal protection by forbidding him
from receiving TPD benefits even though his psychiatric injury has
not reached MMI. The standard of review for such constitutional
challenges is de novo. See Medina v. Gulf Coast Linen Servs., 825
So. 2d 1018, 1020 (Fla. 1st DCA 2002).

     Claimant’s constitutional challenge is focused on § 440.093(3)
of the workers’ compensation statute, which reads as follows:



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    Subject to the payment of permanent benefits under s.
    440.15, in no event shall temporary benefits for a
    compensable mental or nervous injury be paid for more
    than 6 months after the date of maximum medical
    improvement for the injured employee’s physical injury
    or injuries, which shall be included in the period of 104
    weeks[ ∗] as provided in s. 440.15(2) and (4). Mental or
    nervous injuries are compensable only in accordance with
    the terms of this section.

Under this section, an injured employee’s ability to receive
temporary benefits is linked to the existence and duration of the
physical injury. First, § 440.093(1) “emphasize[s] the requirement
of an ‘accompanying physical injury requiring medical treatment’
before payment of benefits for mental or nervous injuries is
allowed.” Utopia Home Care, 230 So. 3d at 73; see also Indian River
Cty. Sheriff’s Dep’t v. Roske, 417 So. 2d 1161 (Fla. 1st DCA 1982);
see also Superior Mill Work v. Gabel, 89 So. 2d 794 (Fla. 1956).
Then, subsection (3) sets a “strict deadline after which no
[temporary disability] benefits are payable on psychiatric injuries
. . . . [It] starts a clock that stops six months to the day after the
date of physical MMI.” Huben, 165 So. 3d at 867.

    Under the system, injured workers can receive temporary
disability benefits for mental injuries that accompany qualifying
physical injuries for up to 260 weeks. But if the mental injury
outlasts physical MMI, temporary benefits are payable for only six
more months after reaching MMI (up to the 260-week maximum).


    ∗
      In Westphal v. City of St. Petersburg, 194 So. 3d 311, 327
(Fla. 2016), the Florida Supreme Court revived the pre-1994
statute that provided a 260-week limitation on the entitlement to
temporary total disability benefits as set out in section 440.15(2).
This result was extended by this Court to the entitlement of
temporary partial disability benefits payable under section
440.15(4). See Gonzalez v. Visa, 204 So. 3d 987, 987-88 (Fla. 1st
DCA 2016); Jones v. Food Lion, Inc., 202 So. 3d 964, 965-66 (Fla.
1st DCA 2016).



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     In Claimant’s case, TPD benefits were not available based on
his psychiatric injury because it arose more than a year after he
reached physical MMI on the back injury. Under § 440.093 and the
case law, Claimant missed the window for receiving TPD benefits
related to his psychiatric injury. Had Claimant’s psychiatric injury
developed contemporaneously or closer in time with his physical
injuries, he could have qualified for TPD benefits prior to physical
MMI, and then for six months after reaching physical MMI. But
because his psychiatric injury manifested more than a year after
reaching physical MMI, he missed the period in which TPD
benefits were available for it.

     Dissatisfied with these statutory parameters, Claimant cites
Westphal and argues that § 440.093(3)’s limitation on temporary
benefits for psychiatric injuries violates his constitutional right to
access the courts, as well as his due process and equal protection
rights. In Westphal, the Florida Supreme Court ruled that the
workers’ compensation statute’s 104-week cap on temporary
benefits in § 440.15(2)(a) violated article I, § 21, of the Florida
Constitution. Mr. Westphal suffered a workplace injury that left
him totally physically disabled and unable to work. Westphal, 194
So. 3d at 327. After receiving temporary total disability benefits
for 104 weeks, the statute terminated benefits, leaving him totally
disabled, unable to work, and statutorily prevented from receiving
disability wages for an indefinite period, until an employer-
authorized doctor determined that he reached MMI. Id.

     The Florida Supreme Court determined that the statute’s 104-
week temporary benefits cap denied Mr. Westphal’s right of access
to courts because it withheld disability benefits indefinitely, at a
time “when the worker cannot return to work and is totally
disabled.” Id. at 314. By terminating Mr. Westphal’s benefits after
just 104 weeks, the Court held that the system did not function as
a reasonable alternative to tort litigation. Id. It held that 260
weeks of temporary total disability benefits would henceforth be
available to Mr. Westphal and others like him, up from the 104
weeks authorized in § 440.15(2)(a). Id.

    Claimant argues that his situation requires a similar analysis
and modification of a statutory limitation, so that he can receive
temporary benefits for his lingering psychiatric injury. But we

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don’t read Westphal to require this result. In Westphal, the Court
recognized the existence of a “tipping point” when the diminution
of workers’ compensation benefits—measured from the 1968
Constitution’s adoption of the right of access to courts—renders
the workers’ compensation system unconstitutional. Id. at 323.
The Court’s chief consideration was whether Florida’s workers’
compensation system provided a “reasonable alternative to tort
litigation.” Id. (citing Kruger v. White, 281 So. 2d 1 (Fla. 1973)).
The Court proceeded to measure a 70% reduction in temporary
benefits for injured workers since 1968, which applied “even if the
worker remains incapable of working for an indefinite period of
time.” Id. at 325. And it concluded that the 104-week limitation
was unconstitutional for workers like Mr. Westphal, who couldn’t
use the tort system to recover for their workplace injury, couldn’t
work, and faced interim “economic ruination” because their
benefits were statutorily cut off during the recovery period until
an E/C-appointed doctor declared them to be at MMI. Id. at 326.

     Claimant’s circumstances are different and substantially
more favorable than those faced by Mr. Westphal. Unlike Mr.
Westphal, Claimant has already qualified for permanent benefits
and he can work. Claimant reached physical MMI and received
permanent benefits and an impairment rating based on his
physical injury. His benefits don’t depend upon receiving a
favorable decision from an E/C-appointed doctor. Furthermore,
Claimant has no work restrictions due to his psychiatric injury. In
fact, Claimant’s doctors think it’s in his best interest from a
psychiatric perspective to return to work. These factors make
Claimant’s situation different from the ruinous situation faced by
Mr. Westphal.

     Under these circumstances, we see no Westphal-type
constitutional problem with the statute’s limitation on psychiatric
benefits. See § 440.015, Fla. Stat. (expressing the Legislature’s
intent that the Workers’ Compensation Law be interpreted 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”). Although § 440.093(3) draws narrower
parameters for receiving temporary benefits for psychiatric
injuries than for physical injuries, it does not force claimants to
wait indefinitely to receive permanent disability benefits, or

                                 5
expose claimants to economic ruination while awaiting
qualification for permanent benefits, as was Mr. Westphal’s
situation. See W.G. Roe & Sons v. Razo-Guevara, 999 So. 2d 708,
709 (Fla. 1st DCA 2008) (noting that “the six-month limitation on
temporary psychiatric benefits is conditioned upon the payment of
permanent benefits for the associated physical injury”).

     Another reason we don’t see a constitutional problem with
§ 440.093(3), is that its six-month-post-physical-MMI limitation on
temporary benefits applies only to psychiatric injuries, which have
historically received less favorable treatment in Florida law. Had
Claimant’s psychiatric injury arisen closer-in-time to, or
contemporaneously with, his related physical injury, he would
have qualified to receive TPD benefits. But his psychiatric injury
arose more than a year after his physical injury reached maximum
improvement, and more than a year after the § 440.093(3) period
for receiving temporary benefits had ended. Isolated psychiatric
claims have not traditionally been recoverable under Florida’s
workers’ compensation and tort law. For example, benefits have
never been available for stand-alone mental injuries without an
accompanying physical injury. See Utopia Home Care, 230 So. 3d
at 73; Roske, 417 So. 2d at 1161; City Ice & Fuel Div. v. Smith, 56
So. 2d 329, 330 (Fla. 1952). The 1968-era precursor statute to
§ 440.093 defined “[a]ccident” to exclude “[a] mental or nervous
injury due to fright or excitement only.” See § 440.02(19), Fla. Stat.
(1968). And only those psychiatric injuries resulting “directly and
immediately” from a physical injury were deemed compensable.
Superior Mill Work, 89 So. 2d at 795; see also Franklin Manor
Apartments v. Jordan, 417 So. 2d 1159, 1160 (Fla. 1st DCA 1982)
(noting that “[i]t has long been the law in this state that for post-
traumatic neurosis to be compensable, it must be the direct and
immediate result of the industrial injury”). These limitations
reflect similar traditional tort-law limitations on recoveries for
psychiatric injuries. See, e.g., Gilliam v. Stewart, 291 So. 2d 593,
594 (Fla. 1974) (upholding Florida’s “long standing” impact rule
that foreclosed recovery for emotional or mental injuries
unaccompanied by physical injuries). And so, for purposes of the
Westphal analysis, Claimant has not demonstrated that
§ 440.093(3) departs from past workers’ compensation limitations,
or that it renders Florida’s workers’ compensation law an
unreasonable alternative to tort litigation.

                                  6
     While we recognize that Claimant’s psychiatric injury isn’t a
strictly stand-alone injury, and that it relates back to his prior
workplace accident, § 440.093(3)’s application to his circumstances
is consistent with how such injuries have been treated under
Florida’s workers’ compensation law since 1968, when the
Constitution conferred the right of access to the courts. But even if
it wasn’t always consistent, the Legislature has flexibility to alter
the law’s benefit structures, and even reduce benefits, without
violating the Constitution’s access-to-courts provision. See
Martinez v. Scanlan, 582 So. 2d 1167, 1171 (Fla. 1991); Acton v. Ft.
Lauderdale Hosp., 440 So. 2d 1282, 1284 (Fla. 1983). And we don’t
think the temporary benefits limitation in § 440.093(3) reduces
benefits to the “tipping point” of creating an unconstitutional
system. Rather, the system continues providing 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,” at a reasonable cost to employers.
Martinez, 582 So. 2d at 1171-72.

     We likewise reject Claimant’s due process and equal
protection challenges to § 440.093(3), recognizing the State’s
legitimate interest in establishing time limits for benefits
associated with psychiatric injuries. See Newton v. McCotter
Motors, Inc., 475 So. 2d 230, 231 (Fla. 1985) (holding that time
limits on workers’ compensation death benefits did not violate
rights of due process, access to courts, or equal protection).

     Finally, we reject Claimant’s argument contesting the finding
that he lacked psychiatric-based work restrictions. Both
psychiatrists who evaluated Claimant opined that he could work
and had no work restrictions based on his psychiatric condition.
Because competent substantial evidence supports the JCC’s
finding, this issue is affirmed. See Ullman v. City of Tampa Parks
Dep’t, 625 So. 2d 868, 873 (Fla. 1st DCA 1993) (recognizing that
findings regarding work restrictions must be upheld if supported
by the evidence).

                                III.

    For these reasons, the judgment of the JCC is AFFIRMED.

WOLF and JAY, JJ., concur.
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                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Dean Burnetti, Lakeland, and Bill McCabe, Longwood, for
Appellant.

Steven H. Preston of Hicks, Porter, Ebenfeld & Stein, P.A., Miami,
for Appellees.




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