Full Range of Sedentary Duty not Necessary to Defeat PTD

Thursday, January 12, 2012 | 0

When dealing with a permanent total disability claim, the standard is well known. After the 2003 legislative changes, the 1st District Court of Appeal declared that we are now back to the pre-1994 standard. A claimant can prove PTD one of three ways:

Claimant is medically PTD; in that she cannot physically engage in sedentary activity within a 50 mile radius of her residence.
Coupled with her permanent physical restrictions, Claimant conducts an exhaustive but unsuccessful job search.
Permanent work restrictions plus vocational factors (education, employment history) prevent claimant from engaging in sedentary activity within a 50-mile radius of her residence.

But, a question remained within vocational expert circles. How do you define sedentary duty? What if a claimant can only work partial sedentary duty? Per the Dictionary of Occupational Titles (DOT) standards there is a whole range of activity within the sedentary classification. What if a claimant, per their doctor, can perform only a certain range of that classification?

Luckily, the court answered that question. . .

In Diocese of St. Petersburg v. Cayer, claimant sought and won PTD benefits from the employer/carrier. At issue on appeal was whether the judge applied the appropriate PTD standard.  The judge found that claimant could not perform “the full range of sedentary duty”  per the DOT definitions. The judge relied upon claimant’s vocational expert to make her opinion. Per the expert’s testimony, he opined that claimant’s current permanent work restrictions were not the full range of sedentary.

There has been much debate since 2003 as to what is defined as “sedentary duty” per S. 440.15(1) when determining PTD.  Some experts on the claimant’s side refer back to the old PTD standard which mimicked the five-step Social Security standard.   The fifth step inquired whether a claimant can perform other similar work found in significant number in the national economy. This was where vocational experts would opine whether a claimant can perform the full range of sedentary duty.

However, the Legislature made clear its intent: It wanted to abolish the old five-step analysis for PTD. The 1994-2003 standard was too amorphous and too subjective. The Legislature no longer wanted a comparison of the PTD standard to Social Security, hence the return to “at least sedentary duty.”  And, that means it doesn’t matter if a claimant cannot perform “the full range” of sedentary duty. If a doctor testifies that claimant can at least perform some of the requirements of sedentary duty, then claimant is not “medically PTD.”

The 1st DCA also thought this way and reversed the lower court’s PTD award.

I’ve seen this type of case many times before. A doctor puts claimant on restrictions of “no prolonged standing or sitting” or “alternate between standing and sitting every 30 minutes.” Per the DOT definitions, this is not the full range of sedentary duty. Per S. 440.15, a claimant would not qualify for medical PTD.

But, let us look at reality. Do you honestly think it would be easy to find a job for an injured worker who must alternate his sitting/standing every 30 minutes? In this economy? The fact remains that these type of tough restrictions will make it difficult for your vocational expert to provide an believable opinion that claimant is reemployable. The truth is a claimant with such restrictions will have a difficult time re-entering the job market. And besides, any slight negative vocational factor would render the claimant PTD.

I’ve written this before, but it bears importance to repeat:

“Each (PTD) factor does not exist alone in a vacuum. Instead, each factor is porous with evidence from each one having the ability to seep into another.”

Just because and E/C “wins” the medical PTD standard does not mean they are home free. When evaluating your claims to decide if there is PTD exposure, look at all of the factors in your case. Look at claimant’s age, the prescription drugs he is on, his criminal background, or his ability to work a consistent sedentary effort.  

And, look at how claimant’s restrictions (even if more than sedentary) interact with his vocational factors.

WorkCompCentral subscribers may download the Cayer decision by clicking the case title in the sidebar.

Michael Rabinowitz is a attorney with Banker Lopez Gassler, a workers' compensation defense law firm in Tampa, Fla. This column was reprinted with his permission from his Workers' Comp Corner blog.