This rule isn’t new.  It was around before the 1994 changes to the PTD provision and the First DCA accepted it as the post 2003 standard.   Despite the language of the statute (not mentioning it), the JCC must consider vocational restrictions as well as physical restrictions. 

Simply waiving a 50 mile job search in front of the Judge is not going to cut it.   The First DCA held this rule before, but in Garcia v. Fence Masters, Inc., they really hammer it home.

In this new case, Claimant’s doctor’s found he could work in a sedentary capacity following recovery of his compensable injuries.  However, at trial for PTD benefits, the Employer/Carrier provided a “labor market survey” (job search) and found ten jobs within a 50 mile radius of Claimant’s home that he could physically work.  The rub?  Claimant cannot speak, write, or read English.  Clearly, he is not going to be able to get any of those ten jobs. 

The lower court found for the E/C based on the labor market survey and Claimant’s testimony that he could physically handle the sedentary work restrictions.  The JCC based his opinion that E/C’s vocational expert–who presented the labor market survey–was more credible than Claimant’s vocational expert.   Yet, E/C’s own vocational expert testified that Claimant did not possess any skills that could transfer him to lighter duty work. 

The First DCA naturally reversed.  The bottomline is that bringing a labor market survey is not enough.  As the E/C you have to show this Claimant has vocational skillsthat can help him return to work.  If he cannot speak English, if he has no high school diploma, if he has worked nothing but hard labor his entire life, if he has a lengthy prison record, if he looks slovenly, if he looks bad in suit; all of these kind of factors must be considered when evaluating a PTD claim. 

My recommendation would be to have your attorney depose Claimant and find out what vocational factors to consider when assessing your PTD defense.  Also, Employers should assist their claims professional throughout the course of Claimant’s treatment.  The Employer hired Claimant.  They know right off the bat what vocational skills Claimant possesses.  If, after Claimant is put at MMI with restrictions, the Employer would have a hard time finding work for Claimant, you have a pretty good idea of your chances of success.

On a final note, in Garcia the First DCA rapped the E/C pretty hard on their vocational expert only revealing the labor market survey until two days before trial and a year and a half after the original PTD claim.  They also note the E/C vocational expert was only hired for trial purposes, not to rehabilitate Claimant’s vocational status as is dicated under section 440.491. 

E/C’s take note: if you think a Claimant is going to have trouble finding work after MMI, or the Employer cannot bring Claimant back with the assigned physical restrictions, assign a vocational rehab expert to the claim.  That expert will assist you in assertaining Claimant’s vocational factors.  It is obvious from this case that the First DCA hates when E/C’s only use vocational experts at trial to deny PTD, rather than use such experts to help an injured worker find employment.