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City Turned Its Back On Disabled Firefighter

John Romano, a writer for the Tampa Bay Times, wrote an artical on Saturday, March 9, 2013, regarding Jason Fox, a partner with the firm of Carlson, Meissner, Hart & Hayslett, P.A.,and his client, Brad Westphal. City Turned Its Back On Disabled Firefighter Meet Brad Westphal. Neighbor, grandfather, firefighter. For nearly 30 years, it was his job to kick down doors, climb hazardous perches and carry people out of burning cars and buildings. He was part of St. Petersburg's marine rescue team, its hazardous materials team and worked as a medic for the SWAT team. Then one day he suffered a catastrophic back injury on a routine call. And the city of St. Petersburg abandoned him. That last sentence is, of course, a subjective one. After all, the city did nothing illegal. Westphal, 52, was offered everything due to him by law, and not one iota more. But that does not mean the city showed him even a hint of compassion. Or justice. Or loyalty. In a story that has a book's worth of details, twists and layers, there are two fundamental issues to consider. The first is a statute that caps workers' compensation payments at 104 weeks. That number, by the way, puts Florida near the bottom of the nation. In Westphal's case, it put him in danger of financial ruin. His 2009 back injury led to three surgeries, a left leg that is partly paralyzed, a brace, a cane and constant pain. It seemed clear he would never again work as a firefighter. Yet, for the longest time, a doctor chosen by the city would not declare that he had reached maximum medical improvement (MMI). That's a fancy term that means he's either completely healed, or will never get any better. So when Westphal's worker's comp payments ran out, he was not medically capable of returning to his job, nor was he eligible for disability benefits without an MMI ruling. That meant he had zero income and a mortgage payment on the first of every month. In a recent ruling, the 1st District Court of Appeal called the situation "repugnant.'' The court also ruled the 104-week cap on workers' comp to be unconstitutional. "You see the point don't you?'' Judge Philip Padovano asked Assistant City Attorney Kim Proano during oral arguments. "There is a point at which cutting back on these (workers' comp) remedies becomes a constitutional problem. Would you agree?'' Proano's reply? "I believe just because a statute can be … unfair does not make it unconstitutional.'' And that brings us to the second issue to be considered. City attorneys seemed to grasp that Westphal was caught in a bureaucratic maze and yet zealously fought to deny him help at every opportunity. Westphal had to withdraw from the city's deferred retirement program — which he estimates cost him more than $200,000 — and begin drawing his pension early to pay his bills. The city, meanwhile, spent money on surveillance of Westphal as well as numerous legal proceedings, but refused to offer a disabled first responder even a temporary solution after 30 years of service. City Attorney John Wolfe said his hands were tied by state law. Several other attorneys I talked to on Friday disagreed with Wolfe's interpretation of the law. City Council member Charlie Gerdes, who is also an attorney, said he had no knowledge of the Westphal case before I spoke to him Friday. Gerdes said a settlement would not only have been a viable legal option, but also the proper thing to do. "The beautiful thing about settlements is there's a lot more flexibility than perhaps the law allows for a judge to rule,'' Gerdes said. Gerdes did say it is Wolfe's obligation to argue zealously on behalf of his client, in this case the city. But if the city is the client, shouldn't Wolfe have brought this matter to the City Council to decide? "That's a good question,'' Gerdes said. "I would have liked the opportunity to challenge the position that a settlement was not possible.'' Still, Wolfe defended his right to make the decision. "I am not going to put my City Council in a position where they can be sued for misuse of public funds,'' he said. Yet for all of the times the city rebuffed a settlement in mediation sessions with Westphal's attorney Jason Fox, it suddenly reversed course late last year and agreed with independent medical experts that he should be granted MMI status and begin receiving total disability payments. Had the city done that earlier, Westphal would not have needed to raid his pension, nor would time and money have been wasted in numerous court proceedings. It also would not have led to the appeals court ruling, which has caused reverberations around the state. By ruling the 104-week cap on workers' comp unconstitutional, the state reverts back to the previous limit of 260 weeks. That means Wolfe will not be alone in deciding whether to appeal. Attorney General Pam Bondi's office is now keenly interested in the case. As for Brad Westphal, the whole thing has become personal. Having his career ended prematurely was bad enough. Having to fight a city he devoted his life to serving made it exponentially worse. "They tried to starve me out,'' Westphal said. "They just kept fighting me, hoping that I would give up. "I wasn't going to let that happen, and I don't want it to happen to anyone else. It's just not right.'' City turned its back on disabled firefighter 03/09/13 [Last modified: Saturday, March 9, 2013 7:23pm]