As I have blogged here before, beginning with the election in 1998 of Jeb Bush as the governor of Florida, state Republicans have been on a mission to limit and eliminate workers’ rights. An area of particular focus has been the workers’ compensation system — Chapter 440 of the Florida Statutes.
Some previous blogs:
- 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
Florida’s workers’ compensation system provides two different categories of lost wages benefits. See Florida Statute 440.15. The line of demarcation is maximum medical improvement (MMI), see 440.02(10). Before reaching MMI, an injured worker is eligible to receive temporary disability benefits, either temporary partial (TPD), see 440.15(4), or temporary total (TTD), see 440.15(2). Once an injured worker has reached MMI, the only available indemnity benefit is permanent total disability (PTD) .
The qualifying legal standard for PTD has changed many times since the adoption, in 1935, of a workers’ compensation system in Florida. It is not the purpose of this blog to track all of the changes. For a thorough discussion of the subject, go to: Permanent Total Disability in Florida Before and After the 1993 Reforms. Of importance to this blog is that, in 2002, the Florida Legislature enacted the toughest PTD qualifying standard ever. In the absence of one of the catastrophic injuries listed in 440.15(1), the employee was required to establish that he or she is not able to engage in at least sedentary part-time employment, within a 50-mile radius of the employee’s residence, due to his or her physical limitation. Surprisingly, the “part-time” provision was eliminated in 2010, softening the standard somewhat. The current version of 440.15 reads as follows:
In all other cases [i.e., the injury is not one of the listed injuries], in order to obtain permanent total disability benefits, the employee 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.
On its face, the difficulty with this standard is that few injuries prevent an employee from performing at least 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.”
Fortunately, thanks to an April, 2013 opinion in Lopez v. A. Duda & Sons, Inc., (Fla. 1st DCA 2013), a case handled by my good friend and superb attorney, Kim Hill, and HDV Constr. Sys., Inc. v. Aragon, 66 So. 3d 331, 334 (Fla. 1st DCA 2011), the PTD qualifying standard is not simply a literal application of the statutory language, as made clear by this language from Lopez, at page 4:
This court has recognized that this burden 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).
The significance of these opinions is that an employee capable of performing work at a sedentary or above level may qualify for PTD. As the facts in Lopez demonstrate, there is more to being able to return to gainful employment than physical restrictions alone.
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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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