Three Ways Claimants Can Get PTD

Monday, October 4, 2010 | 0

By Michael Rabinowitz
Banker Lopez Gassler

At the Florida Workers' Compensation Institute conference in August, one of the panelists at the Case Law Update remarked how the 1st District Court of Appeal has been putting on educational primers on Chapter 440 all this past year; on temporary permanent disability (TPD), on mental injuries, and apportionment.

Now, we have permanent total disability (PTD) on the syllabus and class is in session. . .

In Blake v. Merck & Co. Inc., Claimant sought a PTD award but the Judge denied him on the grounds that Claimant did not conduct a job search that revealed he could not find work within her physical restrictions. The Judge interpreted S. 440.15(1) (post 10/1/03 Act) to mean that a Claimant must at least make an effort to secure employment if she is not medically PTD.

On appeal, the 1st DCA reversed, not on the grounds that the Judge was wrong in his denial of PTD, but that the he did not investigate the processes for a Claimant to obtain PTD.

In what is now becoming common, the Court issued a primer on how a Claimant can prove PTD. There are three different ways, routes, that can be utilized:

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

So here we have it spelled out. Three avenues for a Claimant to prove PTD. We knew that vocational factors matter, but now the Court presents the whole picture. As the E/C, it is important to recognize these ways to determine if a PTD claim is defendable or not.

First, make sure you have all of the permanent restrictions from the authorized doctors. If no doctor can testify the Claimant can work at least sedentary work restrictions, then you know you have a huge uphill battle.  If Claimant seeks an IME to prove this, be sure your IME or the other authorized doctors have an opinion on permanent work restrictions. A medical PTD claim is very difficult to defend.

Second, as I’ve written about before, make sure you include your vocational expert as early as possible.  They will be able to judge the job market and determine if a job search will be unsuccessful or not.  Most importantly, they can assess Claimant’s vocational factors and determine if Claimant has any chance of finding work within a 50 mile radius.

By planning early and preparing for the worst, an E/C will have a good shot at limiting their PTD exposure or the very least set up the claim for reasonable settlement.

Subscribers may download the opinion by clicking the case title in the sidebar.

Michael Rabinowitz is a defense attorney for Banker Lopez Gassler in Tampa. This column was reprinted with his permission from his blog, http://workerscompblog.wordpress.com/