Florida Injury Attorney Blawg
Florida’s workers’ compensation system, outlined in Chapter 440 of Florida’s statutes, allows four different types of wage loss benefits divided into two categories. The categories are temporary and permanent indemnity benefits.
The two types of temporary indemnity benefits are Temporary Total Disability (TTD) and Temporary Partial Disability (TPD). Section 440.15(2)(a) describes TTD as being a “disability total in quality but temporary in quality….,” while TPD, described in section 440.15(4)(a), is the monetary benefit paid when the person’s disability is less than total, meaning that the injured employee is capable of performing some type of physical work activity.
TTD is paid at 2/3 of the injured employee’s average weekly wage (AWW), while TPD pays at “80 percent of the difference between 80 percent of the employee’s average weekly wage and the salary, wages, and other remuneration the employee is able to earn postinjury….” For example, if AWW is $1,000, the TTD and TPD payments are $666.70 and 640, respectively. The good news is that workers’ compensation indemnity benefits are not subject to taxation.
Temporary indemnity benefits end once the injured employee is placed at maximum medical improvement (MMI) — 440.02(2): (10) “Date of maximum medical improvement” means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability — in all disciplines by the workers’ compensation authorized medical providers. So, for example, an injured worker under the care of, say, an orthopedist and a neurologist, must be at MMI from both doctors for temporary benefits to end. (Temporary benefits also end as a matter of law after 260 weeks of payments. Typically, MMI is reached well before 260 weeks, or 5 years, of payments have been made.)
For monetary reasons, fights often ensue over disability status, whether total or partial, and MMI. Unfortunately, the carriers get to select the treating doctors. Not surprisingly, these handpicked doctors typically offer opinions helpful to the carriers. While there are ways to fight back, the options are limited by the system’s decided slant in this regard in favor of employers and carriers.
Once MMI has been reached, the injured employee may be entitled to two types of monetary benefits: Permanent Impairment Benefits (PI)(440.15(3)) and Permanent Total Benefits (PTD)(440.15(1)).
Permanent Impairment benefits are payable after MMI where the employee is left with a permanent impairment rating. “Permanent impairment” is defined in 440.02(31) as: “any anatomic or functional abnormality or loss determined as a percentage of the body as a whole, existing after the date of maximum medical improvement, which results from the injury.” The impairment rating is determined in accordance with the Florida Impairment Guide. Not every injured worker is left with a permanent impairment. The amount payable — “biweekly at the rate of 75 percent of the employee’s average weekly temporary total disability benefit” — is based on a formula set out in the statute. Typically, it is a small amount of money for a short period of time.
PTD pays more over a longer period of time. Except in cases with the worst injuries, it is exceedingly difficult to qualify for PTD. For those receiving PTD, entitlement to the benefits ceases, in most cases, when the employee reaches age 75.
There are two ways to qualify for PTD benefits. The first is by sustaining one or more of these presumptively qualifying injuries:
1. Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;2. Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;3. Severe brain or closed-head injury as evidenced by:
a. Severe sensory or motor disturbances;b. Severe communication disturbances;c. Severe complex integrated disturbances of cerebral function;d. Severe episodic neurological disorders; ore. Other severe brain and closed-head injury conditions at least as severe in nature as any condition provided in sub-subparagraphs a.-d.;4. 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; or5. Total or industrial blindness.
“In all other cases, in 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(1)(b).
It wasn’t always this tough.
When we first began handling workers’ compensation cases, the listed injuries, like now, were an option, however, the alternative method of qualifying was decidedly friendlier than the current standard. Until 1994, a Claimant qualified for PTD by demonstrating an inability to perform “light duty work uninterruptedly.” This is a lower hurdle than the sedentary duty standard under current law. The particulars of the standards are set forth in section 404.1567 of the Code of Federal Regulations:
(a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.
(b) Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.
(c) Medium work. Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.
(d) Heavy work. Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds. If someone can do heavy work, we determine that he or she can also do medium, light, and sedentary work.
(e) Very heavy work. Very heavy work involves lifting objects weighing more than 100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more. If someone can do very heavy work, we determine that he or she can also do heavy, medium, light and sedentary work.
Under current Florida law, an individual is not PTD if he or she can at least perform sedentary work. Before 1994, the person had to at least be able to perform light duty work. The differences are significant.
Social Security Disability (SSD), the Florida Retirement System, and most private disability insurance policies adhere to the light duty standard.
In 1994, the Florida Legislature replaced the light duty standard with a formula tied into the Social Security Disability (SSD) system. Moreover, the workers’ compensation law considered a person who qualified for SSD to presumptively be PTD under the workers’ compensation law. The Legislature expected its changes to make it more difficult to qualify for PTD. In practice, the amendments made it easier.
This did not sit well with Florida Governor Jeb Bush and his corporate constituents. 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 not capable of engaging in at least part-time sedentary employment within a 50-mile radius of the employee’s residence. When coupled with the Legislature’s companion 2003 changes limiting Claimant’s attorneys’ fees, PTD claims practically became extinct.
The standard proved so onerous that it was revisited a few years later. The result is our current law. The big difference is the elimination of the “part-time” language. It has proven significant. The difference between a part-time job and a full-time job is around 20 hours a week. For someone with limiting injuries, this can be a substantial difference.
Even though the current PTD standard is more worker-friendly than it was under Jeb Bush, it remains extremely difficult to qualify for PTD. Very few injured workers are given permanent restrictions by their workers’ compensation authorized doctors that fall below the sedentary duty threshold.
However, all is not lost.
- the Claimant having difficulty sleeping at night due to accident-related pain and has to nap during the day
- the Claimant having to take frequent breaks at work, sometimes to the point of having to lie down, to relieve accident-related pain
- the medications provided for pain relief cause drowziness and other symptoms working against optimum job performance
The more of this type of evidence that can be presented to the JCC, who is the trier of fact, the better. Few employers are willing to accommodate employees against those who are more able-bodied. The vocational expert can explain these things to the JCC, who already knows them by experience and intuition, but must have the record evidence to support any final decision.
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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.
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