Permanent Total Disability


At last month’s W/C Convention, one of the panelists at the Case Law Update remarked how the First DCA has been putting on educational primers on Chapter 440 all this past year; on TPD, on mental injuries, and apportionment

Now, we have permanent total disability (PTD) on the syllabus and class is in session. . . (more…)

Let Admiral Ackbar be a harbinger of what can happen with your PTD claims.  We are less than two months from the new year where many Carriers increase PTD supplemental benefits by the statutorily required 3%.  Many of you will look at your Claimant’s birthdate, and will dance with glee upon seeing that their 62nd birthday is coming up, for this means all future supplemental benefits payments will cease.

But, take heed!  Admiral Ackbar warns you of the trap! 

(More histrionics after the jump.) (more…)

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.

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For Employer/Carriers and Claimants, the point of disability called “statutory maximum medical improvement” was always a confusing moment.   Under section 440.15, a Claimant is deemed to be at maximum medical improvement (MMI) after a period of 104 weeks of temporary benefits (TTD or TPD) has been paid by the E/C. 

The problem for both sides was that Claimant often was not really at MMI from the point of view of his doctors.  Two years is a long time to be off work or on restricted work status, so a Claimant who exhausts the entire 104 weeks likely has severe, multiple injuries.  For many of these severe injuries the healing process to get Claimant at MMI is going to be much longer than that.  But, the statute says that Claimant is no longer entitled to future temporary indemnity benefits after 104 weeks of receiving temporary benefits.  What is a Claimant to do?  She cannot physically work, but she is not receiving any money from the E/C. 

For many, the only choice is to file for permanent total benefits. 

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The legal standard of res judicata is difficult to grasp in Workers’ Compensation.  The problem with res judicata (besides the funny name) is that a Claimant can file the same benefit again, even after being denied by the Judge, as long as the benefit is for a different time period. 

For the uninitiated, res judicata is the legal principle that prevents a Claimant from getting yet another day in court after the first lawsuit is concluded by filing the same claim again.  Res judicata is codified in section 440.25(4)(d), “where any benefit due but not raised at final hearing which is ripe, due, or owing at the time of the final hearing is waived.” 

In other words, a Claimant cannot get two bites of the apple. 

However, many adjusters, employers, and (ahem!) even some attorneys believe that this does not apply to permanent total disability claims.  Because the benefits being sought for last for an extended period of time (the rest of their life under the old act, or age 70 under the 2003 amendments), many Employer/Carriers view a win at a PTD trial to be penultimate.  However, the First DCA reaffirmed the res judicata principle and allowed a Claimant, who lost his PTD claim earlier, to file another PTD claim for a different time frame.

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