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.