Articles Posted in Workers’ Compensation

There are three primary types of lost wage, or indemnity, benefits available to injured workers under Florida’s workers’ compensation system. They are: Temporary Partial Disability (440.15(4)); Temporary Total Disability (440.15(2)); and Permanent Total Disability (440.15(1)). Each of the temporary benefits is available for a limited period of time – not to exceed 104 weeks (see 440.15(2) & (4) – while the injured worker is actively receiving medical care prior to reaching maximum medical improvement (440.02(10). PTD is the only one of the three available after maximum medical improvement (Section 440.15) … and the most difficult to receive.

For the most part, TTD and TPD benefits are available upon a simple showing that the wage loss is the consequence of the injury. Much more is required to establish entitlement to PTD.

To qualify for PTD, one must show that he/she is not physically capable of engaging in at least sedentary duty work within a 50-mile radius of his/her residence or have sustained one or more of the catastrophic injuries listed in 440.15(1)(b). Not surprisingly, qualifying is not as easy as it may seem from a simple reading of the statute.

The sedentary work referenced in the statute can be any job in the national economy, not just the injured worker’s former job. Many claimants believe that unless they are able to return to their former employment, they are PTD. This is rarely the case. (Former employment has relevance in PTD cases, but not in the way most lay people think. Examples of sedentary work include security guard and toll booth attendant. A qualified vocational expert will come to court with a list of 200+ so-called sedentary jobs that exist in the national economy for individuals with limited educations and office skills.)
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Most work-related injuries are caused by acute, single incident accidents. Absent the accident being the result of horseplay, injuries caused this way are typically compensable under Florida’s workers’ compensation system.

Are injuries caused by repetitive trauma over a period of time compensable? So long as the injured worker’s evidence establishes the following elements, the answer is Yes: (1) prolonged exposure; (2) the cumulative effect of which is injury or aggravation of a preexisting condition; and (3) the job subjected the injured worker to a hazard greater than that to which the public is exposed. See Festa v. Teleflex, Inc., 382 So.2d 122, 124 (Fla. 1st DCA 1980). (See, however, Rodriguez v. Frito-Lay, Inc., 600 So. 2d 1167 (Fla. 1st DCA 1992) which seems to do away with the requirement that the job subjected them to a hazard greater than that to which the public is exposed.) (See, also, University of Florida v. Massie, 602 So. 2d 516 (Fla, 1992), a Supreme Court case which provides that for a preexisting condition to be compensable, the condition must be aggravated by some non-routine, job related physical condition, or by some form of repeated physical trauma. By requiring physical stress, this case is aimed at limiting, if not altogether eliminating, mental stress as being enough to establish entitlement for aggravation of a preexisting condition.)

Significantly, in repetitive trauma cases the proof required to overcome the non-compensable presumption in 440.02(1), Fla. Stat., “clear and convincing evidence,” rather than the lower “preponderance of the evidence” standard. “Clear and convincing evidence” is evidence of a quality and character designed to produce in the judge of compensation claims’ mind a firm belief or conviction, without hesitation, as to the truth of the allegations.

The facts of the first workers’ compensation case I took to final merit hearing illustrate the law well. My client was a 60+ year old woman, who, we alleged, developed inververtebral cervical disc herniations through years of repetitive trauma from lifting box spring mattress frames. She worked in a warehouse and her job was to construct the frames, ranging in size from single to king, then physically lift and place each frame, one on top of the other, onto a dolly located beside her work station. She slowly developed severe cervical pain that forced her to retire. The employer and its insurance company denied responsibility for her injuries. Unable to point to a single incident to explain the disc herniations, we brought a Festa repetitive trauma claim against the employer/carrier.
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Florida employees injured at work may be entitled to retraining benefits. The procedure is outlined in Section 440.491 of the Florida Statutes.

Upon referral of an injured employee by the carrier (defined in section (1)(a) of 440.491), or upon the request of an injured employee, the Florida Department of Education (department) shall conduct a training and education screening to determine whether it should refer the employee for a vocational evaulation and, if appropriate, approve training and education or other vocational services for the employee. The department will not approve training and education unless it determines that the reemployment plan is likely to result in a return to suitable gainful employment.

If the department approves training and education, the money to pay for the services will come from the Workers’ Compensation Administration Trust Fund, established by s. 440.50. The training and education can be provided through community colleges, approved career centers, and other vocational services. Under some circumstances, the department will pay for a temporary residence at or near the facility where the services are being provided.
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Permanent Total Disability (PTD) is the only periodic (bi-weekly) monetary payment available to injured workers after maximum medical improvement (MMI) is reached. The standard for qualifying for PTD benefits has changed numerous times over the years.

When I began handling workers’ compensation cases, in 1987, to qualify for PTD benefits an injured worker had to have a listed injury such as total blindness, amputation of an arm, or a severe brain or closed head injury, or establish that he or she was unable to perform light duty work uninterruptedly. (Light duty is commonly recognized as: (1) no lifting > 20 lbs.; (2) frequent (1/3 to 2/3 of the time) lifting or carrying objects up to 10 lbs.; (3) standing 6 out of 8 hours per day; and (4) stand and use arms and hands.)

This standard applied until 1994, when the Florida Legislature, in a Special Session convened by Governor Lawton Chiles, replaced the light duty standard with a formula tied into the Social Security Disability (SSD) standard. The Legislature believed that this formula would make it more difficult for injured workers to qualify for workers’ compensation PTD benefits. In practice, however, just as many if not more injured workers qualified for PTD under this standard.

This did not sit well with Governor Jeb Bush and his corporate constituents, so in 2002, the Republican-controlled Florida Legislature changed the standard again. The SSD formula was replaced with the requirement that injured workers must show they are unable to engage in at least part-time sedentary employment within a 50-mile radius of the employee’s residence. (Sedentary duty is commonly recognized as: (1) no lifting > 10 lbs. at a time; (2) occasional (1/3 of time) lifting or carrying small articles like docket files, ledgers and small tools; (3) sit 6 hours during 8 hour day and stand and/or walk the remaining 2 hours; and (4) good manual dexterity in both hands.) When coupled with the Legislature’s companion 2002 changes curtailing the amount of attorneys’ fees an injured workers lawyer was allowed to receive, the change dramatically reduced the number of individuals who qualified for PTD benefits.

The standard proved so onerous, that the law was revisited a few years later. The outcome of the Legislature’s decision to reconsider resulted in our current law, which provides as follows: “[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.” Section 440.15 Florida Statutes (2009).
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