A Pair of New PTD Cases Puts Claimants and E/Cs on Notice

Wednesday, November 24, 2010 | 0

By Michael Rabinowitz
Banker Lopez Gassler

I want to discuss two permanent total disability (PTD) cases that came out last month, on the same day no less. One “good” and one “bad.” One rules when an employer/carrier (E/C) should pick up a claimant as PTD and the other rules when a claimant is actually eligible for PTD. But, both clarify many misconceptions of PTD eligibility and the full costs of voluntarily picking up a claimant as PTD.

Ok. Let’s dive right in.

In Crum v. Richmond, claimant suffered a very serious shoulder injury and two, unsucessful surgeries. After he exhausted the 104 weeks of his temporary benefits (statutory maximum medical improvement), claimant filed for PTD.  During discovery, one of claimant’s authorized surgeons opined that claimant might benefit from total shoulder replacement surgery. That doctor also opined if claimant underwent the surgery, it would take about a year until claimant reached actual MMI (not statutory MMI).

At trial, per prior case law, the judge found claimant to be at statutory MMI and awarded PTD benefits because claimant was totally disabled pending surgery.

On appeal, the 1st District Court of Appeal reversed based on the surgeon’s opinion. It appears that claimant, and myself, misread the recent set of decisions of the court. Per the Court, PTD can be determined when the 104 weeks expire. However, claimant must still prove that he will be totally disabled after his actual MMI date.

Even I was mistaken on this. Back in February, 2009, I wrote the following:

 "If the 104 weeks runs out, the E/C has a decision to make: either voluntary pick up claimant as PTD and begin payments (with supplemental benefits) or stop temporary benefits and challenge claimant that she is PTD. ”

 It looks the Court is correcting me. . . but, in a way favorable to E/Cs.

In other words, a claimant must first obtain evidence or testimony from a doctor that says once claimant achieves actual MMI he will still be totally disabled.  This is excellent news for E/Cs as what we previous thought was whether claimant was PTD at the time of his statutory MMI date. So, when you have a claim where claimant is approaching the 104 week cut-off date, conference with the authorized doctors and find out when his actual MMI date will be and what his restrictions will be at that future date.

This at least gives E/Cs–on some claims–breathing room to assist potential PTD claimants with vocational rehabilitation services and hopefully turn around the PTD claim.

The second case, while reasonably sound, will not be trumpeted by E/Cs across the state:

In Jones v. City of St. Petersburg, the E/C did the right thing and picked up a claimant as PTD just two weeks after claimant filed a petition for benefits.  But, the litigation did not end there. Claimant sought penalties and interest, under Section 440.20, for late payment of the past PTD benefits that the E/C voluntary paid.  The E/C denied penalties and interest since it voluntary paid the benefits.

At trial, the judge found for the E/C since the adjuster testified she picked the date of PTD off the doctor’s MMI date. On appeal, the 1st DCA reversed.

But how is this possible? For one, the court finds that the E/C, not the claimant, has the burden of proving that penalties and interest are not due.  Section 440.20 is a pure self-executing portion of the statute. It is E/C’s responsibility to make timely payments. So, the E/C has 14 days from the date of disability and unless it can show late payment was due to conditions which it had no control, penalties and interest are due.

Unfortunately, this makes sense. If an E/C is going to pick up a claimant as PTD, it needs to firm up the date of disability and if it is more than 14 days in the past (which almost all PTD claims are) then prepare to pay penalties and interest. From a practice standpoint, when you decide to pick up a claim as PTD, be sure you have the correct date. You can stipulate with the claimant and enter into a formal stipulation, which would include the amount of past PTD benefits, with penalties and interest.  Just be sure to include the 20% penalty and interest in your past due benefits calculation.

Overall, these two cases present a clarification of PTD law, in determining if a Claimant is PTD eligible and when voluntarily pick ingup a claim as PTD make sure you understand your total exposure, including penalties and interest.

WorkCompCentral subscribers may read the 1st DCA opinions by clicking the case titles in the sidebar.

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