Florida Workers’ Compensation Cases: Permanent Total Disability (PTD)

Types of Benefits

Under Florida’s workers’ compensation system, there are three types of lost wage, or indemnity benefits. Those three include:

1. Temporary Partial Disability
2. Temporary Total Disability
3. Permanent Total Disability

Each of the temporary benefits is available for a limited period of time while the injured worker is actively receiving medical care prior to reaching maximum medical improvement. Permanent Total Disability is the only one of the three available after maximum medical improvement and also the most difficult to receive. The qualifiers for PTD have changed drastically throughout the years

The Old Law

Between 1979 and 1993, without proof of substantial earning capacity, loss of both legs, both hands, both arms, or both eyes or any two thereof, or quadriplegia or paraplegia, constituted PTD within Florida’s workers’ compensation scheme. In all other circumstances, the facts of the case were used to determine PTD. The significant issues for discussion of Permanent Total Disability included: ​​​​​​​

• Whether a claimant is capable of uninterrupted, light work.
• Whether the claimant has conducted a lengthy, exhaustive yet unsuccessful work search.
• Whether claimant suffers from a mental/physical condition that meets or equals a social security listing.
• Lastly, whether there are a significant number of jobs in the national economy for him or her.

‘Catastrophic’ Injuries

Between 1993 and 2003, PTD was only rewarded to claimants with ‘catastrophic’ injuries or if the claimant is eligible for social security disability benefits. In no other cases could PTD be awarded. According to the Florida Bar Journal, catastrophic injury meant:

• A permanent impairment constituted by a spinal cord injury involving severe paralysis of an arm, leg, or trunk.
• Amputation of an arm, hand, foot or leg involving the effective loss of use of that appendage
• Severe brain or closed-head injury as evidenced by severe sensory or motor disturbances.
• A severe complex integrated disturbance of cerebral function.
• Second or Third-degree burns of five percent or more to the face and hands.
• Total industrial blindness.
• Any other injury that would otherwise qualify an employee to receive disability income benefits under Title II or supplemental security income benefits under Title XVI of the federal Social Security Act as it existed on July 1, 1992. F.S. §440.02(37) (2000).

Sedentary Work Qualification and the New Law

In October of 2003, the state of Florida added an additional qualification for Permanent Total Disability. To currently qualify for PTD, one must show he/she is not capable of performing at least sedentary work within a 50-mile radius of his/her residence or have or have suffered one or more of the ‘catastrophic’ injuries listed above. The catastrophic injuries listed above create a presumption that the worker is PTD. This presumption can be rebutted by an employer, however, overcoming the presumption is difficult.

Out of the many forms of disability benefits, PTD may be the most difficult of all for which to qualify. The ‘sedentary work’ referenced in the new statute can be any job in the national economy, not just the injured worker’s former job. Unless a vocational rehabilitation specialist determines a job search to be futile due to serious injury, the claimant must provide proof of an exhaustive job search. Additionally, entitlement to PTD benefits ceases when the employee reaches age 75. Although, a minimum of five years PTD is required. For example, if a claimant is determined to qualify for PTD at age 73, then the benefits will not stop at 75, rather, they will continue for a five-year period until the said claimant reaches age 78.

When I first meet with a client, I like to go through the timeframe and the events that will happen legally before you see the judge of compensation claims. First, I will file a petition for benefits which will ask the insurance company to provide my client the permanent total disability checks. The employer/carrier has 30 days to respond to my petition for benefits and usually files a notice of denial. Second, the employer/carrier’s attorney will take your deposition which is a sworn statement under oath. Third, we will attend a mediation conference within 130 days of filing the petition for benefits.

The mediation conference will end when one of three things occur: i) the employer/ carrier declares you permanently and totally disabled and you win your benefits, ii) an impasse is given that shows that no agreement has been reached and the judge will set the case for trial, and iii) the case settles for a lump sum and the file is closed. Finally, a workers compensation trial/merits hearing must occur within 210 days of filing the petition for benefits. At trial, I will introduce witnesses and evidence to the judge of compensation claims and these hearings typically take a few hours.

In ​​​​​​​Conclusion

Navigating the complex statutes surrounding Florida’s PTD qualifications can be very difficult. It is imperative that you contact a skillful lawyer who can get you the compensation you deserve. Call Frank Eidson today at (407) 245 – 2887 for a free case review.