The new permanent total disability standard in Florida workers' compensation cases: a framework for evaluating capability to engage in sedentary employment.

• Author: Gonzalez, Rafael

As of October 1, 2003, the significant issue for discussion in permanent total disability (PTD) cases will not be whether a claimant is capable of uninterrupted light work, or whether the claimant has conducted a lengthy and exhaustive but unsuccessful work search, or whether the claimant suffers from a physical/mental condition that meets or equals a Social Security listing, or whether there are a significant number of jobs in the national economy for him or her. The significant issue now will be whether the employer/carrier can prove that the employee is physically capable of engaging in at least sedentary employment within a 50-mile radius of the employee's residence.

This analysis will necessarily center around the very specific definition of sedentary work and the physical demands and strength ratings of such work. This discussion will ultimately lead to litigation as to the capability of an individual's residual functional capacity to perform a full range of sedentary work. In my opinion, this process will require a very thorough and specific understanding of claimant's medical restrictions and limitations as well as full and comprehensive study of the vocational significance of such components to determine whether the unskilled sedentary occupational base will be significantly eroded. All of this is presented with an eye toward the ultimate burden of proof: whether claimant retains the residual functional capacity to perform at least sedentary work or less than a full range of sedentary work.

This article is intended to provide Florida workers' compensation practitioners with a full discussion of the significant and relevant components of sedentary work per the Dictionary of Occupational Titles. Employee and employer/carrier representatives will gain greater knowledge and understanding of these new components to Florida's workers' compensation PTD definition.

PTD: The Old Definition

Between 1979 and 1993, loss of both hands, both arms, both legs, or both eyes or any two thereof, or paraplegia or quadriplegia, in the absence of conclusive proof of substantial earning capacity, constituted PTD within Florida's workers' compensation scheme. In all other cases, PTD was to be determined in accordance with the facts of the case. F.S. [section] 440.15(1)(1990). Under this statutory language, employees were not required to demonstrate that they were 100 percent physically disabled to claim PTD benefits. Rather, claimants had the burden of establishing that they were incapable of uninterrupted light work because of their limitations, or that they had conducted a lengthy and exhaustive but unsuccessful work search. In determining entitlement to PTD benefits, the courts emphasized a claimant's age, educational and literacy levels, exertional and skill levels of past work history, transferability of any acquired skills, and the vocational determination as to whether the claimant could be rehabilitated and placed in the job market.

Between 1994 and 2003, only claimants with catastrophic injuries were eligible for PTD benefits; in no other case could PTD be awarded. F.S. [section] 440.15(1) (2000). Catastrophic injury meant a permanent impairment constituted by spinal cord injury involving severe paralysis of an arm, leg, or trunk; amputation of an arm, hand, foot, or leg involving the effective loss of use of that appendage; severe brain or closed-head injury as evidenced by severe sensory or motor disturbances; a severe complex integrated disturbances of cerebral function; second-degree or third-degree burns of 25 percent or more of the body surface or third-degree burns of five percent or more to the face and hands; total or industrial blindness; or any other injury that would otherwise qualify an employee to receive disability income benefits under Title II or supplemental security income benefits under Title XVI of the federal Social Security Act as it existed on July 1, 1992. F.S. [section] 440.02(37)(2000).

PTD: The New Definition

As of October 1, 2003, in case of total disability adjudged to be permanent, 66 2/3 percent of the average weekly wage shall be paid to the employee during the continuance of such total disability. No compensation shall be payable under this section if the employee is engaged in, or is physically capable of engaging in, at least sedentary employment. F.S. [section] 440.15(1)(2003). In the following cases, an injured employee is presumed to be permanently and totally disabled unless the employer or carrier establishes that the employee is physically capable of engaging in at least sedentary employment within a 50-mile radius of the employee's residence: Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk; amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage; severe brain or closed-head injury as evidence by severe sensory or motor disturbances, severe communication disturbances, severe complex integrated disturbances of cerebral function, severe episodic neurological disorders, or other severe brain and closed-head injury conditions; second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of five percent or more to the face...