Morgan’s Tip of the Week – PTD
Greetings,
One of the results of the Castellanos decision is that some claims will not settle as early, and as a result, we will be defending more PTD claims. One of the keys is to spot those claims early and have a good plan of action.
Some you can spot from the very beginning:
- Traumatic accident resulting in surgery or head trauma;
- Minimal education; and
- Manual labor work history
But some develop over time, and on those, look for:
- Multiple surgeries/same or two body parts;
- Poor recovery from surgery;
- Claimant out of work for 12 months; and
- No longer employed with our employer.
These are the claims that we need to start to prepare to defend.
The case law on PTD has developed beyond the statutory language, and it’s not favorable to us at all. The 1st 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 ONE 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) (ANY) Permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search; or
(3) (ANY) 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.
The first one is the statutory definition, it’s the second two tests that are more troublesome. Under the job search test it is unfortunately very easy for a claimant to prove PTD.
So, what to do? Each claim is of course going to be different, but….
First, the best defense is if our employer has a job for the claimant within his permanent work restrictions. If you see a claim heading toward PTD, encourage the employer to offer a job and not terminate the claimant.
If you see a claim heading toward PTD, get a defense attorney (in our firm of course) involved to help you strategize early before you actually need to assign it. Likely you will need to get a vocational expert involved to start the job search vs. placement options. See if the doctor will send the claimant for an FCE to ensure the permanent restrictions are valid. Explore surveillance.
And look toward settlement on these claims. The ones that develop overtime can often be settled by just putting a very small portion of PTD exposure in the analysis. These claims usually don’t look better down the road. The key is often to spot these early and put in the work up front to save money on the back end.
Sincerely,