Over the years, but especially since 1998, it has gotten progressively more difficult for workers injured on the job to be fairly compensated under Florida’s workers’ compensation system. Republican governors (Jeb Bush, Charlie Crist, Rick Scott) backed by Republican-dominated legislatures have made every effort to limit and eliminate workers’ rights. Occasionally, the First District Court of Appeal and the Florida Supreme Court will throw workers a bone, but even they cannot fully contend with the overwhelming onslaught from the executive and legislative branches.
Examples of this point:
- Florida Workers’ Compensation a Long Way From Its Roots
- Florida’s Workers’ Compensation System is Worse Than Ever … If You’re an Injured Worker
- Apportionment of Florida Workers’ Compensation Medical and Indemnity (Lost Wages) Benefits
Two different types of wage loss benefits are available under Florida’s workers’ compensation system. See Florida Statute 440.15. The line of demarcation between the two is maximum medical improvement (MMI).
“Date of maximum medical improvement” means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability. 440.02(10).
While the injured worker is in the pre-MMI recovery stage, he or she is eligible to receive what is known as temporary disability benefits, either temporary partial (TPD; F.S. 440.15(4) ) or temporary total (TTD; 440.15(2)) depending on work status per the treating doctor or doctors. However, once the employee reaches MMI, eligibility for temporary benefits ends and the only available indemnity (wage loss) benefit is permanent total disability (PTD; F.S. 440.15(1)). (At the point of MMI, the treating doctor is required to assign an impairment rating for permanent injuries. The rating is expressed in terms of a percentage (%), and permanent impairment benefits (F.S. 440.15(3)) are paid thereafter according to the rating. While this is a monetary benefit, it is not an indemnity payment based on wage loss.) Except in rare instances, PTD ends at age 75.
The qualifying legal standard for PTD has changed many times since Florida adopted its workers’ compensation system in 1935. It is not the purpose of this blog to track all of the changes. For a thorough discussion of that subject, go to: Permanent Total Disability in Florida Before and After the 1993 Reforms.
The 2002 Florida Legislature enacted a daunting PTD standard. To qualify, the worker either had to sustain one or more of the catastrophic injuries listed in Section 440.15(1) or prove an inability to engage in at least sedentary part-time employment within a 50-mile radius of his or her residence due to physical limitations. (A 2010 amendment eliminated the “part-time” language.)
Few injuries prevent an employee from performing sedentary work, defined in §404.1567(a) of the Code of Federal Regulations as
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.
Lopez v. A. Duda & Sons, Inc., (Fla. 1st DCA 2013), a case handled by my good friend Kim Hill, and HDV Constr. Sys., Inc. v. Aragon, 66 So. 3d 331, 334 (Fla. 1st DCA 2011), analyzed the statutory PTD standard in real-life terms rather than by cold construction. The Lopez court wrote:
This court has recognized that this burden [440.15(1)] was not intended to apply to some hypothetical claimant; rather the analysis properly addresses Mr. Lopez himself, the individual. See HDV Constr. Sys., Inc. v. Aragon, 66 So. 3d 331, 334 (Fla. 1st DCA 2011) (“This court has stated that the legal question presented under section 440.15(1)(b)5. is not merely whether the employee is physically capable of performing at least sedentary employment, but whether the employee (the individual seeking benefits, not a hypothetical individual) can reasonably secure or obtain–“engage in”–at least sedentary employment within a fifty-mile radius of his residence, considering his physical and vocational limitations.”) (emphasis in original).
These opinions stand for the important proposition that there is more to being able to return to gainful employment than physical restrictions alone. While qualifying for PTD remains a challenging task, this case law gives injured workers a fighting chance.
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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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