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

Facts:  Claimant injures knee in 1995.  Retires voluntarily in 1998.  Never works or even looks for work since then.  Total knee replacement in Augst 2005.  MMI on 11/14/2005.  Claimant files claim for permanent total disability ("PTD") benefits from 11/14/2005 to present and continuing.     

 

Issue:  Is the 2005 claim for PTD benefits barred by the claimant's voluntary retirement in 1998? 

 

Holding:  Nope.  So said the First DCA in Houck v. Lee County School Board, decided on 11/26/2008, reversing the decision of the JCC who said that it was.

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Section 440.15(1)(f)2.b, Fla. Stat., provides in part that an employer/carrier is not required to make any payment of permanent total disability benefits to an injured worker "if the employee refuses to apply for or cooperate with the employer or carrier in applying for social security disability benefits."  Now comes word from this article in the 10/23/2008 edition of the New York Times that a similar provision in a disability policy has landed a major disability insurer in hot water.  According to the article, a federal jury sitting in Boston has found Unum, the nation's largest disability insurer, guilty of committing fraud in some cases by requiring disability recipients to apply for social security disability benefits knowing that they were not eligible for those benefits.  The suit was brought by a whistleblower under the federal False Claims Act, 31 U.S.C. §§3729, et seq.  You can view the amended complaint here.

 

Could this type of lawsuit become a problem for Florida's workers' compensation insurers if they insist on requiring a permanent total disability recipient to apply for Social Security disability benefits?  Possibly, but I really don't think so.  As the article correctly notes, the Social Security Administration defines "disability" more strictly than Unum's policy does. [Unum's policy pays disability benefits in cases where the recipient is unable to perform his "own occupation," while the Social Security Administration requires a recipient to be unable to perform any occupation].  From 1994 through 2003, the Florida Workers' Compensation Law expressly tied the standards for an award of permanent total disability to the standards for an award of Social Security disability benefits.  And after 2003, at least by legislative design, the standards for an award of permanent total disability benefits in Florida have become even stricter.

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In Temples v. WDW Hospitality & Recreation Corp., decided on 8/29/2008, the First District reiterated that an unsuccessful claim for permanent total disability ("PTD") benefits does not necessarily bar a subsequent claim for PTD.   See also Myers v. Hillsborough Co. School Bd., a case which I discussed here.

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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 necessarily, 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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