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?

In Martinez v. Lake Park Auto Brokers, Claimant sought an appeal of the JCC’s denial of PTD entitlement.  The First DCA reversed because the JCC decided the case before she had the benefit of the Blake decision.  The Court remanded the case back to her and instructions to consider the current state of the law.

What’s important for this blog is that the E/C in that case argued against a reversal because Claimant did not prove a causal connection between his job search and his permanent work restrictions.  The Court rejected this argument.   Going back to the pre-1994 PTD law, the First DCA cited case law that indicated the JCC decides the adequacy of the job search and totality of the circumstances including “physical impairment, age, industrial history, training, education, motivation, work experience, work record, and diligence.”

In other words, a Claimant need not show the exact reason for an unsuccessful job search was his physical limitations.  He can show other factors. . . vocational factors.   Having just authored a Department of Financial Services seminar on PTD, I can attest there is a plethora of pre-1994 case law that support this opinion. 

E/C’s have to view the three avenues to prove PTD as distinct and intertwined.  That is, a Claimant can be short on all three factors but may use the evidence he has for each factor to still prove the job search factor.

For example, a Clamant can have physical restrictions of medium duty work (well above the threshold), and have a college education (very positive vocational factor), but he has a severe psychiatric impairment where he has a history public nervous breakdowns and requires serious psychotropic medication.  Now, he is not medically PTD or has a poor vocational background, but his psychiatric impairment could inhibit his job search.   Should he go into an interview and have a breakdown or admit that he is on all of these drugs, it is likely that his job search will be unsuccessful.

As E/C’s we must consider this.  Each 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. 

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.   Do not just remain focused on his job search numbers.

All of these factors individually may not hurt your case, but when considered together can spell P-T-D.

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