In Westphal v. City of St. Petersburg, 122 So. 3d 440. (Fla. 1st DCA 2013), on rehearing en banc, Florida’s First District Court of Appeals, construing the interplay between the 104 week cap on temporary indemnity benefits in FS 440.15(2)(a) and the necessity for maximum medical improvement FS 440.15(3)(d) as a prerequisite to a claim for permanent total disability, held “that a worker who is totally disabled as a result of a workplace accident and remains totally disabled at 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.” Westphal, 122 So. 3d 440, at 442

The holding relieved the injured worker of the obligation, established in City of Pensacola Firefighters v. Oswald, 710 So.2d. 95 (Fla. 1st DCA 1998), that, “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.Westphal, 122 So. 3d 440, at 442, quoting Oswald 710 So.2d. 95, at 98 [Emphasis added]

The en banc opinion also concluded that The Court had interpreted the Workers’ Compensation Law incorrectly in Matrix Employee Leasing v. Hadley, 78 So.3d 621 (Fla. 1st DCA 2011), and receded from the rule adopted therein, stating, “Nothing in the text of the applicable statutory provisions suggests that the Legislature intended to create a gap in which some totally disabled workers will be ineligible to apply for total disability benefits. Moreover the notion that there can be a period of time during which a disabled worker is not entitled to be compensated for his or her workplace injury is contrary to the basic purpose of the Workers’ Compensation Law.” Westphal 122 So. 3d 440, at 444.

Finally, the First District certified as a question of great public importance whether a worker who is totally disabled, but improving, at the time temporary total disability benefits expire, is deemed to be at maximum medical improvement by operation of law and eligible to assert a claim for permanent and total disability benefits. See Westphal 122 So. 3d 440, at 448.

The Florida Supreme Court accepted jurisdiction. Oral arguments were heard on June 5, 2014.