How to get Permanent Total Disability Benefits in Florida Workers’ Compensation Claims

Every day many workers in Florida are injured on the job. Some of these Florida workers are hurt so badly that they are unable to return to work in any capacity, even sedentary work, due to their work related injuries and the resulting permanent physical restrictions. For these injured workers, F.S. 440.15(1), is the law that provides the legal basis for them receiving permanent total disability (PTD) benefits. F.S. 440.15(1)(b) provides a presumption of permanent disability for the following injuries:

• 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;
• 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.

However, most severely injured workers who are unable to return to work within a 50 mile radius of their home do not fall into one of the above presumptive categories and therefore must prove their entitlement to PTD. In that case to obtain PTD benefits under the Florida’s Workers’ Compensation Law, an injured worker must demonstrate they are not able to engage in at least sedentary employment within a fifty-mile radius of their residence due to their work related physical limitations.

The courts have stated that the legal question under 440.15(1)(b)(5) is not merely whether the injured worker is physically capable of performing at least sedentary employment, but whether the injured worker can reasonably secure or obtain – “engage in” – at least sedentary employment within a fifty-mile radius of his/her residence, considering their physical and vocational limitations.

In the case of Martinez v. Lake Park Auto Brokers, Inc., 60 So. 3d 533 (Fla. 1st DCA 2011) the court established three alternative methods by which an injured worker (also known as a “claimant”) may prove entitlement to PTD benefits under F.S. 440.15(1)(b) by presenting evidence of the following before a Judge of Compensation Claims:

• Permanent medical incapacity to engage in at least sedentary employment, within a fifty mile radius of the employee’s residence, due to physical limitation; or
• Permanent work-related restrictions coupled with an exhaustive but unsuccessful job search; or
• Permanent work-related physical restrictions that, while not alone totally disabling, preclude Claimant from engaging in at least sedentary employment when combined with vocational factors.If determined PTD by the judge the injured worker is paid 66% or 66.67 percent of the average weekly wages (for the 13 weeks prior to the date of accident) shall be paid to the employee during the continuance of such total disability.

The courts do not require direct proof of a causal connection between the injured workers’ physical restrictions and unsuccessful job search, rather, this is a finding that can be inferred from a claimant’s inability to find employment after an exhaustive job search. The judge must decide whether the claimant’s efforts were reasonable and performed in good faith in light of all the relevant circumstances including physical impairment, age, industrial history, training, education, motivation, work record and diligence. See also Borges v. Osceola Farms Co., 651 So. 2d 173 (Fla. 1st DCA 1995) and Korody v. Quality Steel & Claims Center, 694 So. 2d 40 (Fla. 1st DCA 1997).

If determined PTD by the judge the injured worker is paid 66% or 66.67 percent of the average weekly wages (the average for the 13 weeks prior to the date of accident) shall be paid to the employee during the continuance of such total disability.

If you have any questions about this blog or if you or a loved one was injured in an accident at work please contact me for your confidential free consultation.

Author: James D. Payer, Miami Attorney for Workers Compensation