PTD, the acronym for Permanent Total Disability, is the only post-MMI (maximum medical improvement; § 440.02(10) Florida Statutes) workers’ compensation wage loss benefit available to Florida’s injured workers. A Claimant has four ways of qualifying for PTD.
The first way is by proving at least one of the injuries listed in § 440.15(1)(b) (2015). Doing so establishes a rebuttable presumption of PTD. (The burden is on the employee to prove the injury.) Since the presumption is rebuttable, the employer or carrier can overcome the PTD presumption by establishing that the employee is physically capable of engaging in at least sedentary employment within a 50-mile radius of the employee’s residence.
An employee who is unable to prove a listed injury, “must establish that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to his or her physical limitation.” § 440.15(1) (2015).
Blake v. Merck & Co./Specialty Risk Servs., 43 So.3d 882 (Fla. 1st DCA 2010) recognized three ways to prove PTD benefits under this standard: Present evidence of
- permanent medical incapacity to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to physical limitation;
- permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search; or
- 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.
#1 is a medical determination. To prevail under this standard, a Judge of Compensation Claims (JCC) must accept the testimony of a medical provider that the Claimant is not able to engage in at least sedentary employment, defined by the Social Security Administration as follows:
lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. § 404.1567 Code of Federal Regulations.
Method #2 is the so-called, proof-in-the-pudding method. The idea is that an exhaustive, unsuccessful job search demonstrates an inability to obtain gainful employment. The keys to a valid and comprehensive job search include:
- Performed after MMI. See Diocese of St. Petersburg v. Cayer, 79 So. 3d 82 (Fla. 1st DCA 2011)(It is an employee’s permanent limitations and restrictions at the time MMI is reached that factor into whether he or she is “able to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence.)
- The duties of the prospective jobs must be within the Claimant’s limitations. It proves little to be rejected for jobs with physical requirements exceeding medical restrictions.
- Prospective employers have knowledge of the Claimant’s work restrictions. Otherwise, it is impossible to show a rejection based on work capacity limitations.
- Apply for available jobs. A Claimant must be able to show that he or she was turned down for an open job.
- Maintain good records of job openings, applications, and rejections.
- Perform an exhaustive job search. This involves regularly searching over an extended period of time. The more and longer, the better. See H.S. Camp & Sons v. Flynn, 450 So.2d 577, 579 (Fla. 1st DCA 1984) (court characterized as “lengthy and exhaustive” claimant’s three-year job search [involving approximately 300 initial contacts of employers and many return calls and return visits to the same employers] which proved “completely unsuccessful … in spite of services from three vocational rehabilitation or placement experts”); and Commercial Carrier Corp. v. LaPointe, 723 So. 2d 912 (Fla. 1st DCA 1999) (The judge of compensation claims found that Mr. LaPointe had in good faith performed “a valid and comprehensive job search” during which he had unsuccessfully contacted over two hundred employers.)
- Use vocational experts to find job leads and pursue the leads.
In Garcia v. Fence Masters, Inc., 16 So.3d 200, 202 (Fla. 1st DCA 2009), the First DCA confirmed that, for injuries occurring on or after October 1, 2003, the JCC must “consider not only physical restrictions, but also the vocational restrictions, if any, imposed on the individual seeking benefits.” See also Ferrell Gas v. Childers, 982 So.2d 36 (Fla. 1st DCA 2008); Wal-Mart Stores, Inc. v. Thompson, 974 So.2d 516, 517 (Fla. 1st DCA 2008). This is method #3.
A Vocational expert is an authority in the areas of vocational rehabilitation, vocational and earning capacity, lost earnings, cost of replacement labor and lost ability/time in performing household services. Wikipedia.
For PTD determinations, the Vocational expert considers whether permanent work-related physical restrictions, while not alone totally disabling, preclude Claimant from engaging in at least sedentary employment within a fifty-mile radius of his or her residence when combined with vocational factors such as age, education, mental aptitude, work experience, and transferable skills. See HDV Const. Systems, Inc. v. Aragon, 66 So. 3d 331 (Fla. 1st DCA 2011); and Garcia v. Fence Masters, Inc., 16 So.3d 200, 202 (Fla. 1st DCA 2009) (reversing denial of PTD benefits where JCC made conclusory finding that claimant was physically capable of performing at least sedentary employment, but failed to make finding that claimant could reasonably obtain employment within fifty-mile radius of his residence in consideration of his particular vocational impairments). Importantly, the legal question presented under section 440.15(1)(b)5 applies specifically to the individual seeking benefits, not a hypothetical individual. Aragon, supra, @ 334.
These cases, where an award of PTD was affirmed, illustrate some of the method #3 considerations:
- Aragon. The Claimant was physically disabled from performing any of the strenuous jobs he held before his injury, and was likewise physically precluded from most occupations or trades, making his employment opportunities severely limited—even without consideration of the vocational impediments, which include (in addition to an illegal status) a limited education, an inability to read, write, or speak English, no driver’s license, and no transferrable skills.
- Commercial Carrier Corp. v. LaPointe, 723 So. 2d 912 (Fla. 1st DCA 1999). Sixty years old at the time of the final hearing, Mr. LaPointe had driven a truck for thirty-six years. Although he had an eighth grade education, tests indicated he was only marginally literate and was not a candidate for further education or for vocational training because he functioned at the low end of the intellectual range. His only significant work experience was as a truck driver. Physicians restricted him permanently from sitting or driving for more than thirty minutes at a time, bending, lifting more than fifteen pounds, and from walking for more than a quarter of a mile at a stretch.
Employers and Carriers defend against PTD claims by presenting counter evidence to whichever method or methods the Claimant pursues. For example, their doctors may challenge whether an injury reaches the level of one of those listed in § 440.15(1)(b) (2015) or the extent of permanent work-related physical restrictions, while their vocational experts may differ regarding the results of vocational testing, such as IQ and transferable skills, and the ultimate availability of work.
Often, the employer will create a job simply to defend against the PTD claim. The Claimant must counter this by showing that the job is “sheltered employment.” In Commercial Carrier Corp. v. LaPointe, 723 So. 2d 912 (Fla. 1st DCA 1999), the employer offered the Claimant a position as a night watchman. The position was never advertised and did not exist prior to being offered to Claimant. He accepted the job and was allowed to work less than the set hours, to arrive late, or to leave early—in effect to regulate his own hours. Although he was found sleeping on the job, he retained his employment. He was asked to make rounds, but was not required to if he felt he was unable to, nor was he required to keep a record of rounds made or missed. No one filled in when the Claimant was absent, even when he was absent for four months running.
The judge of compensation claims found that “the facts about this night watchman job … can lead to no other conclusion than that the night watchman position was sheltered.” In affirming the JCC’s finding, the appellate court explained sheltered employment:
“So-called sheltered employment is neither ‘”conclusive proof of a substantial earning capacity,”‘ § 440.15(1)(b), Fla. Stat. (1991), nor ‘”a substitute for payment of benefits properly due under the provisions of chapter 440.”‘ Shaw v. Publix Supermarkets, Inc., 609 So.2d 683, 686 (Fla. 1st DCA 1992). It is work unavailable in the ‘”open labor market”‘ that an employer who is responsible for compensation benefits pays an injured employee to perform. See Southern Bell Tel. & Tel. Co. v. Bell, 167 So.2d 844, 846 (Fla.1964); Port Everglades Terminal Co. v. Canty, 120 So.2d 596, 601 (Fla.1960) (‘”a specially-created job, one light of effort and responsibility but laden with rest and comfort (employment plums that do not often dangle from the tree of everyday economics)”‘) (quoting Unora v. Glen Alden Coal Co., 377 Pa. 7, 104 A.2d 104, 107 (1954)); Sugar Cane Growers Co-op. v. McLean, 679 So.2d 856, 857 (Fla. 1st DCA 1996) (‘”Employment in a regular job may be considered sheltered, when, as here, the claimant is permitted to regulate his own hours to accommodate his disability.”‘); U.S. Fidelity and Guaranty Assoc. v. Kemp, 658 So.2d 1212 (Fla. 1st DCA 1995) (finding a position sheltered employment where ‘”fellow employees covered for the claimant because he needed to leave work and go home sick frequently, perhaps even on a daily basis”‘).
That the work for which the injured employee is being paid is work the employer needs done does not rule out its being sheltered employment. See Shaw, 609 So.2d at 685-86. There we said: E/C admit that Publix allowed rest periods and arranged a flexible work schedule without a production quota. Competent substantial evidence in the record demonstrates Claimant’s labeling work was unavoidably subject to interruptions arising from pain and discomfort…. Although the evidence indicated Claimant’s work in the labeling department was beneficial to Employer, the record ‘”leads to the inescapable conclusion that [C]laimant’s return to work was sheltered employment.”‘ (Citation omitted.) We have also acknowledged that work as a security guard may constitute sheltered employment. See New Wales Chemicals, Inc. v. Parks, 518 So.2d 360, 363 (Fla. 1st DCA 1987) (‘”job must be characterized as sheltered employment because claimant’s duties have been conformed to claimant’s limitations to light duty work, and the job pays much more than any similar job as a guard in the community”‘). See generally Roberts v. WPBT, 395 So.2d 233, 234 (Fla. 1st DCA 1981).
Creating sheltered employment is a popular tactic because an ability to work part-time, even if below the sedentary level, may preclude an award of PTD. In US Fidelity & Guar. Ass’n v. Kemp, 658 So. 2d 1212 (Fla. 1st DCA 1995), the Judge of Compensation Claims (JCC) held that the claimant was entitled to PTD benefits on two alternative grounds. He determined that the job the claimant then held was both sedentary and part-time, and thus below the standard set forth in section 440.15(1)(b), Florida Statutes (1986), requiring the claimant to “establish that he is not able uninterruptedly to do even light work due to physical limitation” in order to be eligible for PTD benefits. The JCC held that, by establishing he was capable only of part-time sedentary work, he had met his PTD burden of proving that he was incapable of performing even light work on an uninterrupted basis. While this is true, the appellate court reversed the award of PTD, concluding that “[a]n inability to engage in any meaningful employment would support the conclusion that one is permanently totally disabled. However, an ability to work part-time contradicts the conclusion that one is totally disabled.” Compare Seligman & Latz, Inc. v. Panell, 530 So.2d 1032, 1033 (Fla. 1st DCA 1988) (claimant held part-time job but there was testimony that she could only work “as tolerated,” which the court concluded was sufficient evidence of inability to work uninterruptedly to sustain an award of PTD benefits) with Vista Properties of Vero v. Heumann, 516 So.2d 1032, 1033 (Fla. 1st DCA 1987) (reversing award of PTD benefits for period during which claimant held part-time, non-sheltered, non-gratuitous employment, based upon conclusion that claimant had failed to demonstrate inability to work uninterruptedly). Moreover, the ability to engage in sedentary employment satisfies the statutory prohibition in section 440.15(1)(b) (1986) against awarding PTD benefits to one who is able to perform light work. See, e.g., Roll v. Sebastian Inlet, 609 So.2d 674, 676 (Fla. 1st DCA 1992) (“Claimant did not establish an inability to perform light work uninterruptedly, as there was medical evidence, in the form of Dr. Seig’s opinion, that claimant was capable of performing work in a sedentary occupation.”). Cf. R.D. Brown Contractors v. Padgett, 569 So.2d 499 (Fla. 1st DCA 1990) (reversing order awarding temporary total disability benefits because claimant had failed to sustain the burden of demonstrating a lack of capacity to work where the evidence demonstrated claimant had been informed he could perform sedentary work).
It is not easy proving PTD. Moreover, thanks to former Governor Jeb Bush and the Florida Legislature, today’s current standard is more difficult than past standards. Nevertheless, with the right facts and a lot of hard work, it can be accomplished.
Contact us toll free at 866-785-GALE or by email to learn your legal rights.
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.
While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.