Permanent Total Disability Standards for Post-10/1/2003 Claims: Back to the Future?
Another of the many changes wrought by the 2003 amendments to the Florida Workers' Compensation Law was one changing the standards for awards of permanent total disability benefits. The impetus for this particular change apparently was the finding by FCCI in 2003 that permanent total disability claims in Florida were five (5) times the national average. See Staff Analysis SB50-A, page 7. Under the legislative reforms which had been enacted in 1993 and which were in effect up until 10/1/2003, permanent total disability benefits were awardable in cases of "catastrophic injury," which was defined to incorporate the standards for awarding disability benefits used by the Social Security Administration. See §440.02(38)(f), Fla. Stat. (Supp. 2002).
In order to remedy the perceived problem of too many permanent total disability claims, the 2003 Florida Legislature amended the statute to delete "catastrophic injury" – and specifically the Social Security disability standards - as a condition for an award of permanent total disability benefits.
Instead, the Legislature set out certain severe medical conditions such as paralysis, amputation, and blindness, where permanent total disability would be presumed. See §440.15(1)(a), Fla. Stat. (2003). In all other cases, however, the Legislature imposed the following test:
(b) . . . . 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), Fla. Stat.
How will the courts interpret this amendment? The First District Court of Appeal may give us some guidance on that issue in a case now pending before the Court, Wal-Mart Stores, Inc. v. Thompson, Case No. 1D07-2661. Before examining the facts of that case, let’s look at the standards for an award of permanent total disability before 1994.
PRE-1/1/1994 STANDARDS
Before 1994, §440.15(1)(b) provided:
(b) Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof or paraplegia or quadriplegia shall, in the absence of conclusive proof of a substantial earning capacity, constitute permanent total disability. In all other cases, permanent total disability shall be determined in accordance with the facts. In such other cases, no compensation shall be payable under paragraph (a) if the employee is engaged in, or is physically capable of engaging in, gainful employment; and the burden shall be on the employee to establish that he is not able uninterruptedly to do even light work available within a 100 mile radius of the injured employee’s residence due to physical limitation. (Emphasis added).
Under this pre-1994 version of the statute, notwithstanding the statutory language concerning the claimant’s ability to engage in “light work,’ the First DCA had held that an employee could establish entitlement to PTD benefits in one of three ways: (1) medical evidence that the claimant is unable to do light work uninterruptedly; (2) evidence of a lengthy yet unsuccessful job search; or (3) the combination of medical proof of a substantial impairment and vocational evidence that a claimant is unemployable. See Wal-Mart Stores, Inc. v Liggon, 668 So.2d 259 (Fla. 1st DCA 1996). In other words, a claimant could prove entitlement to PTD under this earlier version of the statute if he had engaged in a “lengthy yet unsuccessful job search” or if a vocational expert testified that he was unemployable because of his impairment even if his physicians all agreed that he was capable of light work.
POST-10/1/2003 STANDARDS
As stated above, following the 2003 amendments, the pertinent portion of §440.15(1)(b) now reads:
(b) . . . . 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.
Note the similarity in the wording of this provision to that of the pre-1994 provision. Now let’s look at the Thompson case.
THE THOMPSON CASE
Ms. Thompson, age 52, was injured on 10/7/2005 (after the effective date of the 2003 legislative reforms). Although she complained after the accident of dizziness, headache, and right shoulder and arm pain, all orthopedic and neurological tests were essentially normal with the exception of some mild degenerative changes in her cervical spine and right shoulder. One of her doctors noted that her complaints were out of proportion to her objective medical findings. She eventually reached maximum medical improvement on 8/23/2006.
In January 2007, she was assigned a 5% impairment rating on account of her accident and was told (1) to avoid lifting more than 10 pounds, (2) to avoid overhead activities, and (3) that she should be allowed to sit and stand intermittently. Following the assignment of this rating and these restrictions, she sought no further medical care in the subsequent 15 months leading up to her workers’ compensation hearing.
Ms. Thompson did return to work for Wal-Mart after her accident. She complained, however, that the job Wal-Mart provided was too difficult for her. On 4/6/2006, she walked off the job saying that she could no longer do the work, at the same time complaining of harassment and discrimination. On 10/13/2006, she filed a claim for PTD benefits. She made no further attempt to find other employment until approximately 8 days prior to the hearing on her claim.
Approximately 6 days (according to the defense attorney at oral argument) prior to the hearing, Ms. Thompson was evaluated for the first time by her vocational expert, Ms. Gerri Pennachio. Pennachio testified at the hearing (1) that Thompson’s work restrictions placed her in a “sedentary” work category, (2) that she is familiar with the job market in the claimant’s area (a rural area outside Bushnell, Florida), and (3) that due to Thompson’s injuries she was not employable within a 50-mile radius of her residence. The Employer/Carrier presented no vocational expert at the hearing, and Ms. Pennachio’s testimony was therefore unrebutted.
THE JCC’S ORDER IN THOMPSON
The JCC, apparently reluctantly, awarded PTD benefits to Thompson:
Having had the opportunity to personally observe the claimant and having considered the paucity of medical findings and minimal impairment sustained by the claimant it is nearly incomprehensible that claimant would be entitled to benefits for a disability that is both total and permanent. . . . Despite the intuitive conclusion that might be drawn from having observed the claimant and reviewing the medical it is found that the claimant has met her burden of establishing entitlement to permanent total disability benefits. . . .
You can read the JCC’s entire 4/26/2007 order here: Thompson v. Wal-Mart Stores, Inc., OJCC No. 05-037566JEM
ON APPEAL
Wal-Mart has appealed the JCC’s order, and oral argument was held before the First District Court of Appeal on 1/15/2008. (You can watch the argument by clicking here:mms://videoserver.1dca.org/video/07-2661.wmv). It's sometimes dangerous to guess at what the Court might be thinking from the questions asked at oral argument. However, addressing Wal-Mart’s attorney, Judge Kahn made these observations about the 2003 PTD statute during the course of the argument:
- The problem, obviously, here, the elephant in the room, is this new statute that we’ve got that took away the requirement of a catastrophic injury and restored the pre-1994 vocational test to permanent total disability. And you remember and I certainly remember when I came to this Court . . . 5% chiropractic, lengthy job search, hey, PTD. Looks like we’re back.
- Here’s a statute that appears. . . to suggest that if you have medical evidence of an impairment coupled with any vocational evidence of unemployability, that judge may find the claimant to be permanently totally disabled.
- Well, I can tell you from one judge, and I don’t know that there’ll be another vote on this panel, but I can tell you from one judge, I just read the statute. [It] doesn’t even mention permanent impairment. It says physical limitation and then it imposes a vocational test on that. So how else can I read that but to say, “Once you’ve proved physical limitation, and once you put on vocational evidence of unemployability within 50 miles, the judge of compensation claims may accept the claimant as PTD?” That’s my question to you.
Although the Court may never write an opinion in this case, it will be interesting to see what they say if they do. In a way, it would be ironic if the Court holds, as Judge Kahn suggested from the bench, that the 2003 amendment re-imposes the pre-1994 standards for awards of permanent total disability – ironic because the 1994 amendment itself was itself enacted because of the Legislature’s 1993 finding that permanent total disability benefits even then were being awarded in Florida “at levels more than five times the national average.” See Ch. 93-415, Preamble, Laws of Fla.
Keep a sharp eye out for a decision.
