When a worker is injured on the job in the state of Florida, Florida Statute
Chapter 440 outlines the benefits an injured worker may be entitled to,
which includes various medical and indemnity benefits. On the indemnity
side, these benefits encompass two primary categories, temporary indemnity
benefits, and permanent total disability benefits. In its most simplistic
terms, these indemnity benefits compensate an injured worker for any time
he/she is unable to return to work either temporarily or permanently as
a result of the work accident. How does a claim evolve from one which
involves a temporary inability to return to work to one which involves
a permanent inability to return to work for which an injured worker may
be compensated? To understand this evolution, one needs to take a further
look at the statutory provisions in Chapter 440 and corresponding case
law regarding permanent total disability.
The current threshold for eligibility for permanent and total disability
benefits, outside of catastrophic injuries defined in F.S. Section 440.15(1)
(b), is found at 440.15(1), Florida Statutes (2003), which provides:
[I]n 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.
Further, in Blake v. Merck & Company, Inc., 43 So.3d 882 (Fla. 1st
DCA 2010), the First District Court of Appeals stated that entitlement
to PTD benefits may be proven through:
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 the claimant from engaging in at least sedentary employment
when combined with vocational factors.
Thus, to determine if a claimant is permanently and totally disabled due
to an industrial accident, other than a statutorily defined catastrophic
injury, the claimant needs to meet only one of the above criteria. Thus,
let us address them one by one.
Regarding the first factor, one needs to look only at the medical evidence
of the claimant’s physical limitations/restrictions and determine
whether these physical limitations/restrictions provide a permanent medical
incapacity to perform at least sedentary work within a 50-mile radius
of his/her residence. Essentially, if medical evidence is presented showing
that an injured worker, given his/her physical limitations alone, can
perform sedentary work or greater, an injured worker would not qualify
for permanent total disability benefits under this factor.
Regarding the second factor, restrictions coupled with an exhaustive job
search, the important consideration is what constitutes an exhaustive
job search. A job search must be conducted in good faith, with a Judge
of Compensation Claims (JCC) retaining discretion to find a job search
inadequate. Additionally, the JCC must decide whether claimant's efforts
were reasonable and performed in good faith in light of all the relevant
circumstances: physical impairment, age, industrial history, training,
education, motivation, work experience, work record, and diligence. (See
Publix Supermarkets, Inc. v. Redding, 689 So.2d 1253, 1254 (Fla. 1st DCA
1997) (quoting Borges v. Osceola Farms Co., 651 So.2d 173, 174 (Fla. 1st
DCA 1995)).
Thus, what is an adequate job search? No absolute number of minimum or
average monthly contacts serve as a threshold requirement for an adequate
work search. The adequacy of a work search is a factual issue which is
dependent upon the totality of the circumstances, including quality and
context as well as a number of job contacts, in each case. Korody v. Quality
Steel & Claims Ctr., 694 So.2d 40, 42 (Fla. 1st DCA 1997) (quoting
GCC Beverages v. Simmons, 571 So.2d 59, 60 (Fla. 1st DCA 1990). Thus,
even though an injured worker may provide pages and pages of job search
forms in an attempt to prove that he/she has conducted an exhaustive job
search to entitle him/her to permanent total disability benefits, careful
scrutiny needs to be given to whether the injured worker is seeking jobs
within his/her permanent restrictions and/or whether the injured worker
is capable of performing these jobs from an educational, vocational, or
experience perspective. Thus, the Judge of Compensation Claims can and
should not only look at numbers of jobs sought but the quality and context
in which these jobs were sought to determine if factor two of an exhaustive
job search is met.
Finally, the third factor in the Merck case is the factor upon which most
permanent total disability cases are litigated. The reason being that
factor three allows the consideration of not only physical limitations,
as in factor one, but also vocational factors/limitations in determining
whether one is permanently and totally disabled due to an industrial accident.
Thus, one must look at not only an injured worker’s permanent physical
restrictions, but also at his/her age, education, work experience, and
vocational skills to ascertain whether an injured worker is capable of
returning to work in any capacity or is permanently and totally disabled.
These are the cases when a vocational expert(s) is usually retained by
the parties to assist in this determination.
In summary, a careful analysis of physical limitations, vocational capabilities
and history, and current vocational capabilities and job searches of an
injured worker are necessary tools to determine if an injured worker is
permanently and totally disabled under Chapter 440 of the Florida Statutes,
as well as corresponding case law. Hopefully, this brief thumbnail sketch
helps provide a tool with evaluating permanent total disability claims.