Permanent Total Disability


When dealing with a PTD claim, the standard is well known.  After the 2003 legislative changes, the First DCA declared that we are now back to the pre-1994 standard.  A Claimant can prove PTD one of three ways:

  1. Claimant is medically PTD; in that she cannot physically engage in sedentary activity within a 50 mile radius of her residence.
  2. Coupled with her permanent physical restrictions, Claimant conducts an exhaustive but unsuccessful job search.
  3. Permanent work restrictions plus vocational factors (education, employment history) prevent Claimant from engaging in sedentary activity within a 50 mile radius of her residence.

But, a question remained within vocational expert circles.  How do you define sedentary duty?  What if a Claimant can only work partial sedentary duty? Per the Dictionary of Occupational Titles (DOT) standards there is a whole range of activity within the sedenatary classification.  What if a Claimant, per their doctor, can only perform a certain range of that classification?

Luckily, the Court answered that question. . . (more…)

Yesterday, I wrote about how an E/C must present evidence that a Claimant failed to complete an earnings report (DWC-19 form) in order to suspend temporary partial benefits.  In the Rucker v. Just Brakes case, the E/C failed to assert this as an affirmative defense and therefore the Judge could not limit Claimant’s right to penalties and interest nor was the E/C correct in suspending benefits.

In other words: Send them the forms. Send them the forms. Send them the forms.  (See yesterday’s post!)

But, what about permanent total disability? Can an E/C unilaterally suspend PTD benefits when a Claimant fails to complete a DWC-19 form? (more…)

I’ve written about this before.  There is no such thing as “temporary” permanent total disability.  Once a Claimant reaches MMI, she is either PTD or not.  If she is at statutory MMI (exhausted 104 weeks of temporary benefits) then a Claimant needs to present evidence that she will be PTD when she achieves “physical” MMI from her doctors. 

Despite this clarity, the First DCA explored this issue again Matrix Employee v. Hadley, this time en banc or the all of the Court’s judges deciding on the issue.  It appeared that the Court was ready to reverse this well versed precedent. . . (more…)

Since the Blake v. Merck case last year, the current state of PTD has never been clearer.   Per the First DCA, the modern version of PTD is very similar to the pre-1994 version.  That is, a Claimant has three avenues to prove PTD entitlement:

  1. Claimant is medically PTD; in that she cannot physically engage in sedentary activity within a 50 mile radius of her residence.
  2. Coupled with her permanent physical restrictions, Claimant conducts an exhaustive but unsuccessful job search.
  3. Permanent work restrictions plus vocational factors (education, employment history) prevent Claimant from engaging in sedentary activity within a 50 mile radius of her residence.

The first and third ways are essentially out of Claimant’s hands.  He needs a doctor and/or a vocational expert to prove either/or. 

The second avenue is one of Claimant’s own handling.  But, what constitutes an “exhaustive but unsuccessful” job search and what is the connection with that search to his physical limitations?

(more…)

So, this is my second appellate win!  I wrote about this back in October.  The controversy centered around a mistake by the E/C’s computer system when it accidentally cut Claimant off from voluntary PTD payments.  Claimant filed a Petition for Benefits for reinstatement.  By the time the E/C corrected the error and paid past PTD with penalties and interest, more than 30 days passed and we owed a fee.  You can read the decision here.

The issue on appeal was: how much were the benefits that Claimant’s attorney secured?  The answer after the jump. . .

(more…)

Sorry for the absence, but I’ve been busy with near trial after near trial.  Finally, I get a breather and the opportunity to catch up.

I want to discuss two PTD cases that came out last month, on the same day no less, regarding permanent total disability (PTD) claims.  One “good” and one “bad.”   One rules when an E/C should pick up a Claimant as PTD and the other rules when a Claimant is actually eligible for PTD.  But, both clarify many misconceptions of PTD eligibility and the full costs of voluntarily picking up a Claimant as PTD.

Ok. Let’s dive right in. (more…)

UPDATED! I forgot to include the this link to the video of my oral arguments.  I believe you need Windows Media Player to watch.  Enjoy!

In my last blog entry, I wrote of a pending oral argument for an appeal I was handled.  I did not want to publicly comment on the issue since it was a pending matter before the First DCA.  So, allow me some space to explain what the issues were.

At issue was the amount of a Carrier paid fee to a Claimant attorney where the only efforts to secure any benefits was simply filing a Petition. (more…)

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