Greetings,

In my last tip I mentioned the rise in PTD claims, and also that (in my opinion) it is now easier to prove PTD.  Boy did that prompt a lot of questions, so here goes:

One of the impacts of Castellanos is some (not all) claimant’s attorneys are hanging on to their claims rather than settle.  The rationale is that they will continue to make attorney fees over time on these claims as they litigate the smaller issues, and eventually they will make a push for PTD exposure.  Claims, unlike wine, do not get better for us over time typically.  So, in my caseload, I am already seeing an increase in the number of petitions claiming PTD by the attorneys that are handling their cases in this manner.

Over the past 6 years we have not seen that many PTD claims as many tended to settle earlier on in the process.   So, many in the industry did not pick up on how much the caselaw has eroded our ability to defend these claims.

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) Permanent work-related physical restrictions coupled with an exhaustive but unsuccessful good faith 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.

So test one is the statute, no real change there.  Test three is the battle of vocational experts, where we have a chance at refuting the PTD claim.   It is test 2 that is the most difficult to defend.  

Under the Martinez case, a claimant simply has to provide evidence they really tried to get a job, but couldn’t find one.   The do not have to prove they were not hired because of their restrictions.  They can just show up with a list of 100 places they looked for work, and they were not hired.  It is very difficult to refute.   Some of the claimant’s attorneys are already submitted “job search” forms or lists well before the claimant even reaches MMI to start the process.

Recent caselaw has also stated that psychiatric restrictions are to be considered as part of the PTD analysis.  And if the employer knew or should have know the claimant did not have legal status to work, that is actually used against us in a PTD claim.

Some of the ways to combat these cases include seeing if the employer can maintain them as an employee and possible accommodate restrictions, getting vocational job placement services or best of all, push for settlement.  Picking the right doctors who will be conservative on work restrictions is key. 

Knowing who the claimant’s attorney is, and how they practice, will help determine the best strategy on a claim by claim basis.

Sincerely,
Morgan Indek | Partner