Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

Res judicata (literally, "a thing decided") is an equitable doctrine which bars the re-litigation of claims and issues that have already been determined in an earlier judicial proceeding.  Does that doctrine bar a claim for permanent total disability benefits where the JCC has previously considered and denied such a claim?  Not necessariliy, said the First DCA in Myers v. Hillsborough County School Board, decided on 4/23/2008.

 

Myers had filed a claim for an award of PTD benefits commencing in April 2000 which the JCC denied in April 2004.  In September 2006, he filed a second claim for PTD benefits, this time commencing in September 2005.  Because the second PTD claim covered a different time period, and because the April 2004 denial "did not go to the entire merits of future disability claims," the First DCA said the second PTD claim was not barred by res judicata.

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I wrote here about Wal-Mart Stores, Inc. v. Thompson, where the First DCA strongly implied that the pre-1994 standards governing the quality of proof needed to support an award of permanent total disability benefits apply to post-10/1/2003 claims.

 

In Ferrell Gas v. Childers, decided on 4/7/2008, the court was more direct. Upholding the JCC's award of PTD benefits in which he considered the claimant's vocational abilities as well as his physical limitations, the court specifically compared the pre-1994 statute with the 2003 amendment governing awards of permanent total disability benefits, noting that "the pertinent language in the current version of §440.15(1)(b) is similar to the language under which this court has recognized that it is appropriate to consider both physical and vocational factors."

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I wrote here about the case of Wal-Mart Stores, Inc., v. Thompson, Case No. 1D07-2661, a case concerning what quantum of proof a claimant must present in support of his post-10/1/2003 claim for permanent total disability benefits.  The First District Court of Appeal issued its opinion in that case on 2/6/2008 in which it affirned the JCC's award of PTD benefits to the claimant.  I think we learn at least two things from the opinion:

 

(1) Although the opinion does not state expressly that the pre-1994 standards for an award of PTD benefits now apply in post-10/1/2003 claims, it seems pretty clear to me that they do.  None of the claimant's doctors in Thompson testified that she was incapable of sedentary employment.  The case was won because she presented medical evidence of her impairment, along with testimony from a vocational expert that she was unemployable, and in this case that evidence was unrebutted.

 

(2) Whether the claimant "is not able to engage in at least sedentary employment available within a 50-mile radius of the employee's residence" is a question of fact for the JCC to decide.  Therefore, if there is "competent substantial evidence" in the record upon which the JCC can base his finding on that issue, it is not likely to be reversed on appeal.

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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:

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A firefighter who was diagnosed with peripheral vascular disease was entitled to the presumption afforded by §112.18(1) that the disease was caused by his employment.  And because his condition met or equaled a "Listing," i.e. an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he was presumed to be permanently totally disabled.  Note that this was a pre-10/1/2003 case so that the firefighter was entitled to an award of permanent total disability benefits if he met the test for disability used by the Social Security Administration.  Butler v. City of Jacksonville.

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In 2003, the Florida Legislature amended §440.15(1)(f), the statute providing for so-called "supplemental benefits" in cases where the injured worker has been rendered permanently totally disabled as a result of his on-the-job accident.  Initially enacted in 1974, that statute provided for an annual 5% increase in the amount of the workers' weekly permanent total disability benefits.  Under a 1990 amendment, entitlement to these benefits terminated when the worker reached age 62 "if the employee is eligible for social security benefits under 42 U.S.C. ss. 402 and 423" (Emphasis added).

 

Under the 2003 amendment to the statute (Ch. 2003-412, s.18, Laws of Fla.), annual increases are now limited to 3%, and entitlement to those benefits now terminates at age 62 "regardless of whether the employee has applied for or is eligible to apply for" either social security disability or retirement benefits (Emphasis added).

 

In Wood v. Winter Garden Citrus Growers, the claimant was 66 years old when she was injured on 12/16/2003.  She was accepted as permanently totally disabled by the employer/carrier when she was 67 years old.  Under the First DCA's interpretation of the pre-2003 statute, she would have been eligible for PTD supplemental benefits.  See Burger King v. Moreno, 689 So.2d 288 (Fla. 1st DCA 1997).  Under the 2003 version of the statute, however, she was completely ineligible for PTD supplemental benefits, and she contended that the statutory amendment unconstitutionally denied her the equal protection of the law because it discriminated against her solely on the basis of her age.

 

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