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. . .

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.