How to Prove Permanent and Total Disability
While every case is unique with different factors, it is possible to prove permanent and total disability through a Florida workers’ compensation case. The discussion starts by understanding the statutes, case law, and past experience. In every situation, it’s ideal to reach out to a workers’ compensation lawyer to dive into the details of your case.
Work injuries can range from minor to devastating. In Florida, there are two categories of benefits: medical and indemnity (or lost wages). The medical benefits can range from authorizing doctor visits to paying for 24-hour attendant care. The lost wage benefits fall into a limited range of categories. Workers’ compensation for lost wages is provided when the injured worker can prove entitlement to them.
This article is going to discuss how Permanent Total Disability in particular can be secured in a Florida workers’ compensation case. It’s also important to take a look at the claims that have occurred after October 1, 2003. The date the injury occurs controls what year of the statute governs each case.
As a disclaimer, you must be aware that every case is unique and there are different factors that can make a case go one way or another. This is also not a guarantee of any results on a case, but a discussion of how the statutes, case law, and past experience can help improve the chances of getting this benefit.
What is Permanent Total Disability?
Permanent Total Disability is when the employer and carrier are responsible to pay lost wages to the workers’ compensation claimant with continual checks until they reach the age of 75, according to the State of Florida. It is not as simple as it sounds. First, the payments can go beyond the age of 75, but only when the injured worker is not entitled to social security benefits or if the injury occurred when the worker was 70 years old or more, then the benefits continue for five years.
The rate of pay is a bit complex. In general, it is supposed to be roughly two-thirds of the average weekly wage of the injured worker. However, the workers’ compensation law can also provide for a supplemental payment of 3 percent per year until the age of 62. There are also rules that allow the insurance company to offset some of the payments if the injured worker is getting payments from some other source such as a long-term disability policy or social security disability.
Regardless of the exceptions and limitations to the benefit, it is considered the most significant lost wage benefit in Florida's workers’ compensation law. For many workers’ compensation claimants, it is a long-term financial solution to their worries when they are no longer earning a living.
When can an Injured Worker Apply for Permanent Total Disability?
In general, the law prohibits an injured worker from seeking Permanent Total Disability benefits until they reached Maximum Medical Improvement (MMI). MMI is a status that all of the authorized treating physicians must assign to the injured worker. That status means the treating physicians no longer anticipate further recovery or lasting improvement of the injury. The status does not mean that a person is completely healed. It merely means there is not going to be a significant level of improvement in the injured worker’s condition.
Are Permanent Total Disability Benefits Automatically Provided?
These benefits are not automatically provided. However, there are some injuries that are considered so severe, and the statute says the benefits must be provided unless the Employer and Carrier can show the injured worker can work at least sedentary employment within a 50-mile radius of where they live. The injuries that provide this presumption are:
- Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;
- Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;
- Severe brain or closed-head injury as evidenced by:
- Severe sensory or motor disturbances;
- Severe communication disturbances;
- Severe complex integrated disturbances of cerebral function;
- Severe episodic neurological disorders; or
- Other severe brain and closed-head injury conditions at least as severe in nature as any condition provided in sub-subparagraphs a.-d.;
- Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of 5 percent or more to the face and hands; or
- Total or industrial blindness.
Having one of these injuries does not guarantee the award of these benefits, but it shifts the burden to the Employer and Carrier to prove they shouldn’t be paying them. Also, there are a vast number of cases in which an injured worker does not have one of these listed injuries but has still been able to pursue and obtain Permanent Total Disability benefits. However, it is their burden to prove they are entitled to them.
What Factors Determine Permanent Total Disability?
During a workers’ compensation case, most injured workers will reach maximum medical improvement. Once that takes place, there must be a consideration of a few things before seeking Permanent Total Disability status.
The first question to ask is whether the injured worker has returned to work at all? If the injured worker has returned to work at their original job or a new job, the Permanent Total Disability benefits cannot be obtained. If the worker has not returned to work, the first step is to show that the employee is not employed. From there, it’s time to determine if permanent work restrictions have been assigned.
Permanent work restrictions are an absolute requirement prior to seeking these benefits. Without them, there is no way to prove the work injury has caused an inability to obtain new employment. However, even a minimal amount of work restrictions can be enough to pursue these benefits.
At that stage and according to Florida law, it is the injured worker’s burden to prove they are physically incapable of working at least sedentary jobs within a 50-mile radius of their home. Within this requirement, the term “sedentary” generally refers to the work strength categories defined by the Dictionary of Occupational Titles.
According to the Dictionary of Occupational Titles “sedentary” means: “exerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or a negligible amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.”
The following section shows the three methods that court cases have outlined how someone can prove Permanent Total Disability in workers’ compensation cases: medical disability, vocational disability, and unsuccessful job search disability.
If there is evidence proving the injured worker cannot engage in at least sedentary employment within a 50-mile radius due to their physical limitations, medical disability can be proven (Blake vs. Merck & Co.). This evidence generally comes from one source, which is the authorized treating physicians. This method is almost completely controlled by the physical work restrictions the authorized treating physicians have assigned in the workers’ compensation case.
For instance, if the authorized treating physician specifies light duty as a job restriction, the injured worker is not disabled based upon the restriction. It means the authorized physician believes the injured worker can physically perform the requirements of a light-duty job without further worsening the injury.
However, if the authorized treating physician states there is no job the injured worker can perform without further hurting themselves, then medical disability is a viable basis to prove Permanent Total Disability.
Sometimes physicians are not completely aware that the restrictions they are placing on the workers’ compensation cases rise to the level of total disability. For example, if the treating physician assigns a restriction of no lifting over twenty pounds with the requirement of breaks every hour for at least fifteen minutes, then it's not a clear picture. The twenty-pound lifting restriction doesn’t qualify, but taking breaks every hour for fifteen minutes might be considered total disability from a medical perspective.
If there is evidence that vocationally the injured worker is unable to work, vocational disability can be proven. Vocational factors include a range of considerations. A person’s education, work history, transferable skills, and the local job market are all combined to determine if there is any chance of a person working.
In a workers’ compensation case, this evidence generally comes from one source: an expert witness. These witnesses usually have education and certifications showing they are knowledgeable in the area of helping injured people return to work.
Before making their expert opinion, they typically interview the injured worker, which could include simple testing to determine if they have adequate math and reading skills, resume review, and general assessment of the injured worker’s ability to enter the workforce. A part of the assessment might include an opinion that the injured worker could return to work or have a better chance at it if they obtained further education or training in a specific field.
Both the injured worker and the insurance company have the right to obtain a vocational expert to form an opinion about the injured workers’ ability to re-enter the workforce. According to FL law, if the injured worker refuses to undergo a vocational assessment by the insurance company, the Judge of Compensation Claims is not permitted to award Permanent Total Disability benefits. This is a tricky situation because you must undergo the evaluation by the expert hired by the insurance company; however, they might not have your best interests in mind. It is always best to have those interviews and communications coordinated through an attorney’s office.
Unsuccessful Job Search Disability:
If there is evidence of an exhaustive, but unsuccessful job search, unsuccessful job search disability can be proven. In 2011, there was a very instructive case on how factors in a job search must be considered when a workers’ compensation judge determines if a person is totally disabled: Martinez v. Lake Park Auto Brokers, Inc. This case states that no direct proof of the unsuccessful job search and physical impairment had to be established.
This is favorable to the injured worker because it means testimony does not have to be presented from every job that was applied to and asked if the work injury is the reason they did not get hired. The case states essentially that because there is a physical restriction from a workers’ compensation case, and they didn’t get hired for the job, then the connection can be inferred. The case also established there is no minimum number of places a person must apply for work in order to prove their search is exhaustive. These are the things that do not have evidentiary requirements.
However, the Judge of Compensation Claims needs to decide whether the search was in good faith. Good faith is a subjective standard that is at the discretion of the Judge to determine. Proving the job search was done in good faith means it was done with actual intent to find a job.
The Judge can look at factors such as whether the jobs sought were within the physical abilities of the injured worker, or if the worker had the appropriate training and education to qualify for the job. For instance, if a Judge was presented with evidence that the injured worker applied for 25 jobs that required a nursing degree, but the worker didn’t have a nursing degree, then it would appear the search wasn’t in good faith because their skillset didn't match the qualifications for the job.
Getting injured on the job is a frustrating process. Being so severely injured that you can’t return to the same type of work jeopardizes your way of life. For many injured workers, it is not a clear yes or no as to whether they qualify for Permanent Total Disability.
Do you suspect that you may qualify for Permanent Total Disability? Or do you want to make sure you check all the legal options available to you after a work injury? Reach out to me, Matt Carrillo, today by emailing me at firstname.lastname@example.org.