Jeffrey P. Gale, P.A. // Florida Workers’ Compensation: Don’t Fall Into PTD Supplemental Payments Trap

Some of Florida’s most severely injured workers may qualify for Permanent Total Disability (PTD) benefits under Section 440.15(1) Florida Statutes. In the absence of a catastrophic injury such as a spinal cord injury involving severe paralysis, amputation of an arm, a hand, a foot, or a leg, severe brain or closed-head injury, or total or industrial blindness, the qualifying standard is that the injured employee is not capable of engaging in at least sedentary employment within a 50-mile radius of the employee’s residence. (The Florida Legislature, under the control of Jeb Bush, changed the PTD standard from “light duty” to “sedentary employment.” This significant difference keeps many severely injured, deserving workers from qualifying for PTD.)

The PTD compensation rate is 66-2/3 percent of the employee’s average weekly wages during the continuance of such total disability to age 75, unless the employee is not eligible for social security benefits under 42 U.S.C. s. 402 or s. 423 because the employee’s compensable injury has prevented the employee from working sufficient quarters to be eligible for such benefits, notwithstanding any age limits.

Section 440.15(1) also provides for a cost of living increase. Under 440.15(1)(f)1, the injured employee shall receive additional weekly compensation benefits equal to 3 percent (5% pre-Jeb Bush) of her or his weekly compensation rate multiplied by the number of calendar years since the date of injury. However, three factors limit the value of this increase. They are:

1. The weekly compensation payable and the additional benefits payable under 440.15(1)(f)1, when combined, may not exceed the maximum weekly compensation rate in effect at the time of payment.
2. The supplemental payments shall not be paid or payable after the employee attains age 62 (regardless of whether the employee has applied for or is eligible to apply for social security benefits under 42 U.S.C. s. 402 or s. 423, unless the employee is not eligible for social security benefits under 42 U.S.C. s. 402 or s. 423 because the employee’s compensable injury has prevented the employee from working sufficient quarters to be eligible for such benefits).
3. Offset. If an employee receiving PTD also qualifies for Social Security Disability, the workers’ compensation employers and their insurance carriers get to reduce their payments so that combined payments do not exceed 80% of average weekly wage. Section 440.15(9) Florida Statutes. In effect, employers and insurance companies are benefiting from taxpayers (SSD is a taxpayer funded program).

We recently settled a 1992 workers’ compensation case in which paragraph 2 played a big role.

In 1992, we successfully won at trial on the issues of compensability (under the repetitive trauma theory) and PTD. Rather than settle then, our client chose to keep the case open for medical and indemnity benefits. While the weekly PTD of $409 remained the same, by the time of our mediation, in 2015, his weekly 440.15(1)(f)1 supplemental payment was up to $470.35.

Since 1992, the E/C had paid nearly $800,000 in compensation. For years, the E/C were anxious to settle the case. Our client, who was happy receiving in excess of $1,600 bi-weekly, was not. However, when he turned 60, in 2014, his feelings began to change. The greatest factor was that his workers’ compensation check would suddenly be cut by more than half in less than two years. (We had this discussion in previous years, but it didn’t hit home until he hit the big 60.) Wisely, he decided that the time was right to cash in for a sizable lump sum settlement. He chose right. The E/C, tired of making 20+ years of medical and indemnity payments, paid a premium to get rid of the case.

When to settle can be a tough call. The elements noted here are not the only important considerations. While ignorance may be bliss in some situations, it is not the best approach with regard to legal matters. Claimants must have frank and open conversations with their attorneys. It’s the lawyer’s duty to have these conversations.

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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.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.