TED DOSS, JR.

v.

UNITED PARCEL SERVICES/LIBERTY MUTUAL

ROBERTS, J.

In this workers’ compensation case, the injured worker (Claimant) appeals the Judge of Compensation Claims’ (JCC’s) order denying his claim for temporary total disability (TTD) benefits for the period he was unable to work following authorized surgery for his compensable knee injury. In the order, the JCC ruled that Claimant’s eligibility for these benefits had expired under section 440.15(3)(c), Florida Statutes (1997). Because we find no merit to Claimant’s argument on appeal that this statutory provision is unconstitutional as applied to him, we affirm.

I The undisputed facts show that Claimant sustained a compensable right knee sprain in November 1997, received authorized medical care, and eventually returned to work.

In September 2016, he underwent authorized arthroscopic knee surgery for his compensable injury. He was off work from September 10, 2016, until January 3, 2017, when he returned to work with no functional limitations. He was placed at maximum medical improvement (MMI) as of February 7, 2017, with a 14% permanent impairment of the body as a whole. The Employer/Carrier (E/C) paid no temporary disability benefits for the period Claimant was unable to work post-surgery, and the parties stipulated that Claimant received fewer than 260 weeks in temporary benefits during the entire course of this claim. II Claimant’s substantive rights here are established by the version of the law in effect on the date of accident. See, e.g., Butler v. Bay Ctr./Chubb Ins. Co., 947 So. 2d 570, 572 (Fla. 1st DCA 2006) (citation omitted).

Under section 440.15(3)(c), Florida Statutes (1997), Claimant’s eligibility for temporary benefits “terminates on the expiration of 401 weeks after the date of injury.”∗ This Court previously held that this 401-week (7.7 years) expiration date acts as a cap on the employee’s “bank” of weekly temporary compensation benefits established by the maximum number of weeks otherwise payable under section 440.15. See Holl v. UPS, 140 So. 3d 1062, 1064 (Fla. 1st DCA 2014). Under the 1997 version of section 440.15, Claimant would have been entitled to a maximum of 104 weeks in TTD benefits.

However, in Westphal v. City of St. Petersburg, 194 So. 3d 311 (Fla 2016), the Florida Supreme Court held that the 104-week maximum, which represented a significant reduction from the prior law, as applied to Mr. Westphal and others similarly situated, unconstitutionally violated the right to access to the

∗ Enacted in 1993, this statutory limitation on the payment of temporary benefits was abolished when the Florida Legislature made major changes to Chapter 440 in 2003.

courts. Id. at 325, 327. As a remedy, the Westphal court revived the prior statute, which provided for a 260-week limitation. The JCC below correctly assumed the 260-week maximum in accordance with Westphal, but ultimately concluded that Claimant’s eligibility for TTD benefits had expired under section 440.15(3)(c) many years before his 2016 surgery. III Relying on Westphal, Claimant argues on appeal that the 401-week limitation in section 440.15(3)(c), as applied to him, is similarly unconstitutional as a violation of right of access to courts. The constitutionality of this particular statutory limitation is a matter of first impression, and our standard of review is de novo. See, e.g., Medina v. Gulf Coast Linen Servs., 825 So. 2d 1018, 1020 (Fla. 1st DCA 2002) (holding constitutional challenges to statutes are reviewed de novo).

The Florida Constitution provides that “[t]he 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. Generally, statutes are presumed to be constitutional. The proper standard for review of a constitutional claim based on access to courts is the rational basis test set forth in 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 Statute 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. See also Warren v. State Farm Mut. Auto. Ins. Co., 899 So. 2d 1090, 1097 (Fla. 2005).

Significantly, the legislative reduction of benefits alone is not enough to show a denial of access to courts. In Martinez v. Scanlan, 582 So. 2d 1167, 1171–72 (Fla. 1991), the Florida Supreme Court addressed an alleged violation of access to courts based on the 1990 amendments that changed the maximum in TTD benefits from 350 weeks to 260 weeks. See Ch. 90-201, § 20, Laws of Fla. (amending section 440.15(2)(a), Florida Statutes, to reduce period of eligibility for TTD benefits from 350 weeks to 260).

In rejecting that constitutional challenge, the Martinez court expressly acknowledged the obvious reduction in benefits to eligible workers, but found no violation because “the workers’ compensation law remains a reasonable alternative to tort litigation. It continues to provide the 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.” Martinez, 582 So. 2d at 1171–72. In Westphal, the Florida Supreme Court addressed another legislative change that reduced the maximum entitlement for TTD benefits to 104 weeks. In that case, the claimant, who was severely injured, remained totally disabled after receiving the maximum of 104 weeks in TTD benefits, but could not prove entitlement to permanent total disability (PTD) benefits because he was not at MMI. In its analysis, the Westphal court focused on the statutory gap in disability benefits and concluded that the additional reduction in TTD benefits had changed the law so that it was no longer a reasonable alternative to tort litigation. Specifically, a “tipping point” had been reached in the reduction of benefits that violated the right of access to courts. 194 So. 3d at 323. Claimant contends that the 401-week limitation here creates a similar gap in benefits.

We disagree. In stark contrast to the injured worker in Westphal, Claimant here worked for many years after his workplace accident. He was off work for only four months following his September 2016 surgery and never asserted any related loss in wages. He returned to work, and continues to work, without any assigned functional limitations. He has also been placed at MMI and thus is not precluded from pursuing permanent benefits that may otherwise be due and owing. In any event, the Westphal majority expressly and “respectfully disagree[d]” with a concurring (in result) opinion that the remedy there “is insufficient

because it still allows for the possibility of a statutory gap.” Id. at 327. That said, it is clearly true that, like the injured worker in Westphal, Claimant’s eligibility for TTD benefits terminated under the statute without regard to his actual disability from the compensable injuries. But the ultimate question here is whether the statute, with this 401-week limitation, “‘passes constitutional muster’ because it ‘remains a reasonable alternative to tort litigation,’ where a worker ‘is not without a remedy.’” Id. (quoting Martinez, 582 So. 2d at 1171–72). Applying this standard to these facts, we conclude that this statute is constitutional as applied to Claimant.

Section 440.15(3)(c) essentially operates as a statute of repose by terminating benefit eligibility 401 weeks post-injury. Here, Claimant sought additional temporary benefits nineteen years after the date of his workplace injury—far beyond the statute of limitations for a tort claim were he not barred by exclusivity of remedy. In addition, no evidence suggests that any timely tort litigation would have assured Claimant any recovery for future damages similar to the benefits sought here. And, of course, under the “Grand Bargain” of the workers’ compensation no-fault system, the injured worker foregoes full recovery of the damages otherwise available in tort. For all of the above reasons, we reject Claimant’s argument that the 401-week limitation under section 440.15(3)(c), as applied, is an unconstitutional violation of the right of access to courts.

Accordingly, we AFFIRM the order below. ROWE, C.J., and TANENBAUM, J., concur. _____________________________