You can review the DFS memo here.

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. . .

In Diocese of St. Petersburg v. Cayer, Claimant sought and won PTD benefits from the E/C.  At issue on appeal was whether the Judge applied the appropriate PTD standard.  The Judge found that Claimant could not perform “the full range of sedentary duty”  per the DOT definitions.  The Judge relied upon Claimant’s vocational expert to make her opinion.  Per the expert’s testimony, he opined that Claimant’s current permanent work restrictions were not the full range of sedentary.

There has been much debate since 2003 as to what is defined as “sedentary duty” per s. 440.15(1) when determining PTD.  Some experts on the Claimant’s side refer back to the old PTD standard which mimiced the 5-step Social Security standard.   The 5th step inquired whether a Claimant can perform other similar work found in significant number in the national economy.  This was where vocational experts would opine whether a Claimant can perform the full range of sedentary duty.

However, the Legislature made clear their intent: they wanted to abolish the old 5-step analysis for PTD.  The 1994-2003 standard was too amorphous and too subjective.  The Legislature no longer wanted a comparison of the PTD standard to social security, hence the return to “at least sedentary duty.”   And, that means it doesn’t matter if a Claimant cannot perform “the full range” of sedentary duty.  If a doctor testifies that Claimant can at least perform some of the requirements of sedentary duty, then Claimant is not “medically PTD.”

The First DCA also thought this way and reversed the lower court’s PTD award.

I’ve seen this type of case many times before.  A doctor puts Claimant on restrictions of “no prolonged standing or sitting”  or “alternate between standing and sitting every 30 minutes.”  Per the DOT definitions, this is not the full range of sedentary duty.  Per s. 440.15, a Claimant would not qualify for medical PTD.

But, let us look at reality.  Do you honestly think it would be easy to find a job for an injured worker who must alternate his sitting/standing every 30 minutes?  In this economy?  The fact remains that these type of tough restrictions will make it difficult for your vocational expert to provide an believable opinion that Claimant is reemployable.   The truth is a Claimant with such restrictions will have a difficult time re-entering the job market.  And besides, any slight negative vocational factor would render the Claimant PTD.

I’ve written this before, but it bears importance to repeat:

“Each (PTD) factor does not exist alone in a vacuum.  Instead, each factor is porous with evidence from each one having the ability to seep into another.”

Just because and E/C “wins” the medical PTD standard does not mean they are home free.  When evaluating your claims to decide if there is PTD exposure, look at all of the factors in your case.   Look at Claimant’s age, the prescription drugs he is on, his criminal background, or his ability to work a consistent sedentary effort.   

And, look at how Claimant’s restrictions (even if more than sedentary) interact with his vocational factors.

Once again, it is important for E/C’s to send a DWC-30 form to Claimant’s to get authorization for UC information.  Without this information, an E/C is not entitled to take an offset against future TPD benefits.  

So, send the form!  Send the form!  Send the. . . Uh, you get the idea. . .

Section 440.15(10) (b) mandates an offset for UC benefits.  What confused my collegue  was how to calculate the offset.  My collegue argued for the 80/80 method, or use the UC benefits as wages and determine if it is at least 80% of Claimant’s AWW.  If UC benefits are less than 80%, you calculate the difference between the two numbers and pay 80% of that difference.    This is mandated in s. 440.15(4)(a). 

However, s. 440.15(10)(b) calls for a different calculation.  That section confirms that UC benefits are shall be primary and that TPD benefits shall be supplemental only.   In other words, UC benefits act as a replacement (at first) for TPD benefits.  The sum of the two benefits cannot exceed the amount of weekly TPD benefits that are due.  Per the statute, no 80/80 calculation is required. 

You simply add the UC benefits and the TPD together.  If they are more than the weekly TPD amount you don’t pay.  If theyare less, you pay the difference.  This is considered a “true offset.”

The best way to illustrate the difference between the two is this example.   Claimant has an AWW of $300.00.   If you take 80% of the AWW, you get $240.00.    The TPD weekly rate is $192.00.   If Claimant earns UC benefits of $200.00 a week, what is the offset? 

If we use the 80/80 formula, we subtract $240 (80% of AWW) from $200 (UC) and we get $40.    And, 80% of $40 is $32.  This is the weekly amount that would be owed.   But, we know this is wrong.  So, let’s at the correct way and see what offset, if any, would be in effect.

At $200 a week in UC benefits, Claimant is already above his TPD rate of $192.00.  Since UC is primary, we see Claimant is making more money on UC, therefore we pay nothing for that week.  Obviously, $0.00 is cheaper than $32.00.  It is clear the Legislature intended E/C’s to take the large offset since UC benefits are not “wages.” 

Of course, all of this moot if the E/C does not send the DWC-30 forms. 

The AV Preeminent rating deems an attorney the highest ranking for the following qualities: legal knowledge, analytical capability, judgment, communication ability, and legal experience.  To receive this from my peers is truly special and I thank those who offered their opinion.

For more about my profile at Martindale Hubbell, click here.

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?

In Glinski v. Pan American Bank, the E/C had been paying Claimant PTD benefits for almost 20 years.  It is unclear whether Claimant won PTD benefits at trial or the E/C voluntarily picked her up as PTD (more about that in a bit).   In 2009, the E/C sent Claimant DWC-19′s to complete.  For 4 months, Claimant failed to complete and return the forms and when she did they were incomplete.

To insure Claimant complete the DWC-19′s, the E/C suspended benefits unilaterally.  According to s. 440.15(1)(f)2.b., a Claimant must report all earnings and social security income (via the DWC-19′s) and the E/C is not required to make any PTD payments for the period Claimant willfully fails or refuses to report such income.

Claimant tried to convince the Judge that she did not “willfully fail” complete the DWC-19′s, that it was an accident.  But, the Judge did not buy it and the First DCA stood by the suspension of benefits.  The Court noted Florida Administrative Code Rule 69L-3.021(2) also gives the E/C further power to suspend benefits after failure to answer the DWC-19′s for more than 21 days. 

But, what is important is that the First DCA also confirmed that the E/C need not seek a Judge’s permission to suspend the benefits even if Claimant won PTD benefits at a trial.  This is important because–as I wrote previously–there is no indication in Glinski of how Claimant obtained PTD entitlement. 

As we all know, if a Claimant wins PTD at trial, the E/C can no longer administratively suspend PTD benefits if it has evidence that Claimant is no longer PTD.  The E/C has to present to the Judge a “change in condition” per s. 440.28. 

However, in Glinski we have an exception.  An E/C can suspend benefits unilaterally–without permission from the Judge–if Claimant fails to respond to the DWC-19 forms.    And, it is imperative for an E/C to have this tool to obtain social security, and all income.

So, once again: Send them the forms.  Send them the forms.  Send them the forms!!! 

And, once again, here is the DWC-19 form.

IME doctors can still sink you and disagree with the legal position you are taking.  Therefore, it is always a risk to retain an IME because there is always a chance it can go bad for you. 

And if it does go bad, what are your options?  Many of us in the profession thought you were sunk.  After all, section 440.13(5)(b) mandates that your are bound by your IME selection.  Now, it seems that a party still has some life left even when their own IME shoots them in the foot.

More after the jump. . .

In Keeton v. Kentucky Fried Chicken, Claimant suffered a compensable accident.  Her authorized doctor diagnosed her with carpal tunnel syndrome (CTS) but opined it was not related to the compensable accident.  For some reason, the E/C obtained an IME (presumably to support the authorized doctor’s opinion?).   The E/C’s IME actually went against them and opined that the CTS is work related.

To dig themselves out of the self-dug hole they put themselves in, the E/C then moved for an Expert Medical Advisor (EMA).  After all, per s. 440.13(9)(c),  they had two authorized doctors who had a difference of opinion on compensability of the CTS.   An EMA is mandated. 

Keep in mind, the Claimant chose not to retain an IME (for obvious reasons).   The only two differing opinions are the authorized doctor that sided with the E/C and the E/C’s own IME who went against them.

The Judge granted the E/C’s motion for an EMA and the EMA sided with the E/C.  The Judge in turn ruled for the E/C.  Claimant appealed on the grounds that s. 440.13(5)(b) requires that each party is “bound” by his selection of an IME. 

The First DCA affirmed, reasoning that the “bound” language s. 440.13(5)(b) refers to the number of IME’s a party can have.  Plus, the EMA statute contains no exceptions that a party can seek an EMA to defeat their own IME opinion.

This was good news for the E/C in Keeton, but for future handling be careful in a situation like this.  The E/C did not need an IME.   It already had the authorized treater on its side.  Why risk an unfavorable IME opinion?  It simply was not worth it.

The First DCA has found that a party can have an IME per dispute.  In other words, an E/C can get an IME per Petition.  But, just because you have a loaded gun does not mean you have to shoot.  Assess your case before automatically paying for an IME just to re-enforce your defense.  If you have the facts or the medical opinions or the law on your side, do you really need to spend $1500 to $2500 on an IME that could be unfavorable.

Don’t assume that all IME’s will side with you.  And, don’t assume you should get an IME for every claim just because you can.

What forms, you ask?  Why the DWC-19 forms, of course!  DWC-19 forms are the wage loss forms that Claimants must complete (under penalty of perjury) indicating to the Carrier that she is not earning any wages or less than 80% of her AWW and is entitled to temporary partial benefits.

An E/C does not have to pay TPD benefits until it receives the completed DWC-19′s forms from the Claimant.  However. . . alot of E/C’s forget to send Claimant the forms.

Let this case be a lesson . . .

In Rucker v. Just Brakes, Claimant sought TPD benefits for various time periods.  The E/C denied the benefits on the grounds that Claimant was at MMI and/or there was no nexus between the compensable injury and Claimant’s wage loss.

The Judge found for Claimant but also found that the E/C did not owe penalties and interest for late payment of TPD since Claimant never completed a DWC-19 form detailing wage loss for the dates he alleged TPD.  The First DCA reversed on the grounds that the E/C never raised this defense.  For many in the legal arena, the thought was the completion of DWC-19′s was an administrative procedure that did not require an affirmative defense by E/C.  

In fact, Florida Administrative code 69L-3.01915(1)(b) requires E/C’s to inform Claimants that TPD can be suspended if they fail to complete a DWC-19.  Yet, the key word in that rule is “if requested” by the E/C.  If an E/C does not request Claimant fill out these forms and send them to Claimant then the E/C loses its right to suspend TPD benefits or avoid penalties and interest.  Section 440.15(4) gives E/C’s this power.  Without the request, there is no power to suspend.

For many Carriers, standard operating procedure is to send out DWC-19′s to Claimant after the Employer initially reports the claim.  This is great, but Carriers need to send them out more, like the first time a doctor releases a Claimant to work with restrictions.  Without the act of sending Claimant the forms, an E/C cannot raise the defense that Claimant never completed the forms.

And now, per the Rucker case, an E/C must provide evidence to a Judge that the DWC-19′s went out.  For example, lets say in Rucker that the Judge never mentioned the DWC-19′s and the E/C had to obey the order awarding TPD.  How is the E/C to supposed to calculate the amount?  Supposed Claimant did work a portion of that time.  That means the E/C gets an offset on those earnings.  But, since they presented no evidence at trial or never even sent the forms to Claimant, they cannot claim that offset and must pay the entire amount as if Claimant did not work during that period.

Employers: you can send the forms to Claimants as well.  As long as Claimant has the forms and fails to complete them and return them to the E/C, there is no TPD liability.

So, once again: Send them the forms.  Send them the forms.  Send them the forms!!! 

And, once again, here is the DWC-19 form.

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. . .

In Hadley, Claimant exhausted his entire 104 weeks of temporary benefits.  His doctor testified that Claimant is totally disabled and he would need additional surgeries but the doctor could not anticipate disability status for a date uncertain.  Claimant sought PTD benefits and the E/C denied on the grounds that Claimant was not at MMI nor presented any evidence that he would be PTD once his doctor placed him at MMI. 

At trial, the Judge found for Claimant despite the notion that there is no “temporary PTD.”  The Judge found that despite the requirement that Claimant be at MMI, he is at statutory MMI and currently he is PTD.  While circumstances might change in the future, Claimant was PTD at the date of trial.

The First DCA met en banc, that is in front of all of the Judges.  This a rare occurence and happens if there is a possibility the Court could recede from a prior opinion.  In Hadley, it appeared that the Court might reverse their decisions on temporary PTD.   In the end, they did not.  In an 8-6 opinion (pretty close) the Court decided not to recede from prior case law (namely the recent Quintana decision).   But, the dissenting opinion is very interesting and presents a window into the possibility of a future  Supreme Court decision.

First, the majority stuck to its guns and precendent in denying the existence of temporary PTD.  The legislature intended PTD only to occur after MMI and Claimant is not at “physical” or “overall” MMI, therefore despite being at statutory MMI and not eligible for wage loss benefits and despite being totally disabled.   This creates a “gap” in disability benefits.   Despite this “gap,” the majority would not reinterpret s. 440.15 to allow for a new class of benefits that did not exist nor the Legislature intended to exist.

On the other hand, the minority opinion focused on this “gap” but argued that the statute still allows for benefits to cease past 104 weeks if Claimant remains disabled.   Per the minority, the statute makes no difference between statutory MMI and “physical” MMI.  In fact the terms “physical” or “actual” or “overall” MMI are terms of art that we lawyers create to differentiate between statutory MMI and the MMI opinion of the doctors.  Many doctors disagree with statutory MMI because severely injured Claimant’s are not yet repaired.

The minority argues that if Claimant is at statutory MMI, he meets the requirement to qualify for PTD.  In fact, at statutory MMI (just like “physical” MMI), the doctors are required to assign an impairment rating regardless of current disability status.

And the workers who are injured the most are most likely to be caught in this “gap” since they would require the most treatment for periods longer than 2 years.   The entire chapter 440 mandates that a Claimant recieve disability benefits continuously throughout the course of his disability.  The minority argues that Hadley defies that mandate.  The results of the decision are more than likely to restrict a Claimant access to the courts, a right per the Florida Constitution (art. 1, sec. 21).

Finally, the minority questions why W/C law exists if Claimants cannot legally retrieve entitle benefits.  The proper recourse could be tort law (negligence).

Now, this opinion of course favors E/C’s.  At 104 weeks, a Claimant must prove entitlement to PTD in the future.  But, the minority does make sense.  No doctor who is proposing surgery in the future will testify that after surgery Claimant is expected to be PTD.  All surgeons expect their results to be glowing.  And, if they testify that Claimant will be PTD after their surgery then what is the medical necessity of the surgery?  Why recommend surgery if it is going to result in PTD?

As of today, Hadley requested a re-hearing in front of the First DCA.  I expect this to be denied.  However, I also expect Hadley to appeal to the Florida Supreme Court and whether the high court takes the case there is a possibility that we could end up with new case law.   Unlike the Kauffman case, Hadley has a definitive and strong constitutional arguments.

The bottomline is that E/C’s should not get complacent with claims where the 104 weeks are about to expire.   As I wrote when Quintana came out:

“the E/C has a decision to make: either voluntary pick up Claimant as PTD and begin payments (with supplemental benefits) or stop temporary benefits and challenge Claimant that she is PTD.”

If you have a claim that could be PTD after 104 weeks, anticipate the PTD claim and have a vocational expert on hand or at least reviewing the claim.   This is the best defense, rather than relying on an MMI argument.

More after the jump.

The standard for misrepresentation is founded on the case of Martin v. Carpenter, 132 So.2d 400.  In that case, the Florida Supreme Court found an Employer can deny a claim when a Claimant falsifies a pre-existing condition during the hiring process and subsequently injures the same condition.  This is obviously a powerful tool for Employers.   The problem is that case was decided in 1961, well before Congress passed the ADA.

So, the question is, how does an Employer learn about a potential employee’s medical history without discriminating them?   After all, per Martin v. Carpenter, an Employer has to rely upon the respresentations of the potential hire.  They have to ask the appropriate questions.

A key is to look at the Equal Employment Opportunity Commision(EEOC).   The EEOC Technical Assistant Manual, Ch. 5.5 (see also 29 CFR 1630.4)  directs when an Employer can ask about a potential new employee’s health.   There are 3 stages** where an Employer can find inquire health questions: 

1. The first is before making a job offer when describing the physical demands of a job, but the Employer cannot ask about disabilities or prior W/C accidents/injuries.
2. The second stage is post offer, but before the job begins.  This is where the post-hire medical questionnaire is allowed and an Employer can inquire about past accidents/injuries.  Employers can even require a medical examination.   A companies who employ drivers with commercial driver licenses require some form of medical examination.  (Their general liability carriers require this too.) 
3. The third stage is during employment, but the medical questions are limited to just job performance or safety issues (if an Employer believes an employee cannot physically perform the job safely or efficiently.)

Keep in mind, the ADA does not apply to Employers who employ less than 14 employees, so a medical questionnaire is allowed at any time for small Employers.   Also, the Florida State Courts have ruled that an Employer does not have to comply with the ADA to assert misrepresentation.  In other words, an Employer can have a job application that blatantly violates the ADA.  But, if the employee still lies on that application, the Employer can still assert misrepresentation to deny Florida W/C benefits. 

However, I do not recommend this to my employers.  Misrepresentation can still be proven by carefully following federal guidelines.  In fact, a post hire questionnaire—in compliance with the ADA—shows a Judge that you did the right thing but the Claimant did not by lying to you.

If you have more questions about the misrepresentation defense, see my FloridaWC.com educational video series here.

** Once again, thanks to Dubreuil’s “Florida Workers’ Compensation Handbook” (2009), chapter 5.

This issue is hotly debated now among Carriers.  What do you do when an authorized doctor requires Claimant’s non-compensable condition be treated before the doctor will treat the compensable injury?   For example, the authorized W/C surgeon will not perform surgery on the compensable back injury until a doctor clears Claimant’s cardiac condition. 

Does the E/C have to authorize cardiac care for a non-compensable condition just so the doctor can treat a compensable lumbar condition? 

The unfortunate answer is “yes.”

The problem that many Carriers have is the 2003 portion of chapter 440 which reads as though the Carrier does not have to pay for any  non-compensable condition per the apportionment/merger statute.  This would be an incorrect assumption.

While many are correct in that s. 440.15(5)(b) “apportions” out the pre-existing condition, that statute applies only to aggravations of pre-existing conditions and/or mergers of a compensable industrial accident with a pre-existing condition.  

For example, an E/C would not be expected to pay 100% of Claimant’s lumbar condition if a doctor opines that 40% of her problem is related to a previous car accident and 60% is related to the industrial accident.   The MVA is apportioned out and the E/C only has to pay 60% of future treatment and wage loss.

However, the cases where a wholly separate pre-existing condition (like cardiac) prevents a compensable injury from being treated is governed by the “medical necessity” statute or s. 440.13(2)(a) which states the employer of a claimant who suffers an industrial injury must:

“Furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require.”

There are no cases after 2003 interpreting that section 440.15(5)(b) allows Carriers to deny this type of care.  This is important because s. 440.15(5)(b) came into effect with the 2003 changes.  However, there exists  alot of prior case law that interprests s. 440.13(2)(a) in favor of Claimants and I think that the First DCA would still uphold all of those prior cases due to my reasoning above.

Below, I’ve highlighted some of the cases,  and summarized what the Court did in each scenario to give you an idea of how much exposure an E/C has in claims where Claimant’s non-compensable condition stands in the way of treatment for a compensable injury:

Mellon Sec. & Sound v. Custer, 687 So.2d 1372, 1373 (Fla. 1st DCA 1997) –  E/C must treat Claimant’s obesity and hypertension so authorized doctors can treat Claimant’s compensable back injuries.

City of Miami v. Korostishevski, 627 So.2d 1242, 1244 (Fla. 1st DCA 1993) – E/C must treat Claimant’s cancer necessary to effectuate treatement of the compensable hernia.

Brown v Steego Auto Parts, 585 So.2d 401, 402-403 (Fla. 1st DCA 1991) – E/C must authorize weight loss program to effectuate treatment of compensable lumbar condition.

Urban v. Morris Drywall Spray, 595 So.2d 60 (Fla. 1st DCA 1991)  – E/C must treat Claimant’s diabetic condition for effective treatment of compensable injuries; Judge must make specific findings as to whether the diabetic treatment was a necessary adjunct to treatment of compensable injuries.

Roth Bros. v. Spodris, 451 So.2d 947 (Fla. 1^st DCA 1984) – What is probably the worst case scenarion for an E/C, the Carrier must pay for Claimant’s non-compensable total hip replacement as it would improve Claimant’s back condition!