For this tip I am going to focus only on dates of accident after 10/1/2003. 

• For PTD to be ripe (until we hear otherwise from the Fla Supreme Court), the claimant must either be at overall MMI, be able to prove PTD based on restrictions/MMI for one of the injured body parts alone, or the doctor must be able to project what the restrictions will be when the claimant does reach overall MMI.

• The statute defines when a claimant is PTD under 440.15(1), but the 1^st DCA said… yeah, nevermind about that…and defined the test for PTD in the Blake case:

The 1^st DCA solidified the burden of proof for a claimant to prove PTD in Blake v. Merck & Company, Inc., (1 D09-5464, September 7, 2010).  A claimant is PTD if he can prove any of the following three:

(1) Permanent medical incapacity to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to physical limitation; or

(2) Permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search; or

(3) Permanent work-related physical restrictions that, while not alone totally disabling, preclude Claimant from engaging in at least sedentary employment when combined with vocational factors.

You’ll note that in the 2^nd and 3^rd tests, they did not include the term “sedentary.”   So a claimant with light, medium or possibly even lesser restrictions could prove they qualify for PTD under those tests.

The job search test in (2) is exceptionally troublesome.  In a subsequent case, the DCA stated the claimant does NOT need to prove they could not get a job because of the restrictions, just that the job search was done in “good faith”.    A claimant can litter the internet with resumes and job applications, as long as it was “exhaustive” and in “good faith”.  This explains why you are getting some job search forms from claimant’s attorneys, they are laying the groundwork for a PTD PFB.  

To help combat this, I recommend you get a vocational expert involved early on in those claims that have PTD potential, if the employer can not accommodate the permanent work restrictions.

Another item that is useful is an FCE to determine work restrictions.  A 1^st DCA case from a few years ago ruled a JCC can’t compel a claimant to attend an FCE, and a lot of claimant attorneys are refusing to allow their clients to participate.  Doctors don’t like it when claimants ignore their advice for legal purposes.  I have been able to get several of our go to doctors in Orlando to state without an FCE, work restrictions are speculative, thus helping us argue that PTD is not ripe and push for settlement.

As always, let me know if you have any questions.
Morgan Indek | Partner