Florida Workers’ Compensation – Shifting Permanent Total Disability (PTD) Standard

Permanent Total Disability (PTD) (440.15(1)) is the most valuable wage loss benefit available under Florida’s workers’ compensation system. Unlike Temporary Partial Disability (TPD) (440.15(4)) and Temporary Total Disability (TTD) (440.15(2)), monetary benefits that are available for only a short period of time, PTD can last for years and includes an annual supplemental increase equal to 3 percent of her or his weekly compensation rate.

The PTD standard has changed numerous times over the years. Until 1996, the standard was to meet a scheduled catastrophic injury, like total blindness or loss of limbs, or prove the inability to perform at least light duty work uninterruptedly on a full-time basis. In 1996, the light duty standard was replaced by the standard required to qualify for Social Security Disability (SSD) benefits, which the Florida Legislature believed was more demanding. In 2002, thanks to Governor Jeb Bush, the SSD standard was replaced by an even more stringent standard. Injured workers would be required to prove that they could not perform at least sedentary duty work on a part-time basis within a 50 mile radius of their homes. This standard prevented all but the most catastrophically injured workers from qualifying for PTD.

Because this standard proved so onerous… and unfair, the Florida Legislature was persuaded to eliminate the part-time element from the PTD requirement in its 2006 version of 440.15.

Pre-1996, one of the ways claimants proved entitlement to PTD benefits was by performing an exhaustive but unsuccessful job search. Because of the many variations in the standard since then, many workers’ compensation practitioners believed that this method no longer applied and abandoned it as a way of proving entitlement to PTD.

Thankfully, in Blake v. Merck & Co., 43 So. 3d 882 (Fla. 1st DCA 2010) the assumption was proven wrong. The Blake court set forth three alternative methods by which a claimant may prove entitlement to PTD benefits: by presenting evidence of (1) permanent medical incapacity to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to physical limitation; (2) permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search; or (3) permanent work-related physical restrictions that, while not alone totally disabling, preclude Claimant from engaging in at least sedentary employment when combined with vocational factors.

Confirmation of this method as a way of proving PTD is important to injured workers. In many PTD cases, especially those where the claimant’s injuries are less than catastrophic, this method is the most effective way of proving PTD.

Other considerations:

  • The claimant is not required to present direct proof of a causal connection between his physical limitations and his unsuccessful job search. Fla. Mining and Minerals v. Brantley, 418 So. 2d 352 (Fla. 1st DCA 1997).
  • The job search must be conducted in good faith and it is within the JCC’s discretion to find a job search inadequate. Factors such as physical impairment, age, industrial history, training, education, motivation, work experience, work record, and diligence will be considered. Publix Supermarkets, Inc. v. Redding, 689 So. 2d 1253 (Fla. 1st DCA 1982); Borges v. Osceola Farms Co., 651 So. 2d 173 (Fla. 1st DCA 1995).
  • There is no absolute number of minimum or average monthly contacts as a threshold requirement for an adequate work search. GCC Beverages v. Simmons, 571 So. 3d 59 (Fla. 1st DCA 1990).

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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