NANCY BLAKE, APPELLANT,
v.
MERCK & COMPANY, INCORPORATED/SPECIALTY RISK SERVICES, APPELLEES

Fla. 1st DCA | 2010-09-07
No. 1D09-5464
KAHN, LEWIS, and CLARK, JJ., concur.
43 So. 3d 882 Florida District Court of Appeal, First District (2010) Positive Treatment
Cited by 17 cases

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Synopsis

In this workers' compensation case, the Florida First District Court of Appeal reversed a denial of permanent total disability (PTD) benefits, holding that the trial judge applied an incorrect legal standard by requiring a job search when the evidence did not show total medical disability. The court clarified that PTD benefits can be awarded under three alternative paths, including consideration of vocational factors combined with physical restrictions.


Holding

The court reversed the denial of PTD benefits because the JCC applied an incorrect legal standard. The court held that a claimant can establish entitlement to PTD benefits through three alternative methods: (1) permanent medical incapacity to engage in at least sedentary employment within a 50-mile radius due to physical limitation; (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 engaging in at least sedentary employment when combined with vocational factors.


Headnotes

[1] A Judge of Compensation Claims errs by requiring a job search absent medical evidence of complete inability to work when determining entitlement to permanent total disabi…

[2] Entitlement to permanent total disability benefits can be established by evidence of permanent medical incapacity to perform sedentary work, permanent physical restrictio…

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Key Quotes

“the JCC must "consider not only physical restrictions, but also the vocational restrictions, if any, imposed on the individual seeking benefits."”

Establishes that for post-October 1, 2003 injuries, courts must consider both physical and vocational factors in PTD determinations.

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Facts & Procedural History

Nancy Blake was injured on February 20, 2004. The Judge of Compensation Claims denied her claim for PTD benefits, stating that she must perform a reas…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

In this workers’ compensation case, Claimant seeks review of an order denying a claim for permanent total disability (PTD) benefits, attorney’s fees, and costs. We reverse because the Judge of Compen*883sation Claims (JCC) used an incorrect legal standard in denying PTD benefits.

The JCC denied the claim based on the erroneous assumption that, absent medical evidence of complete inability to work, a claimant is not entitled to PTD benefits without first performing a job search. The JCC stated in the final order:

The employee must establish that she is not able to engage in at least sedentary employment, within a 50 mile radius of her residence, due to her physical limitations. I interpret this to mean that, regardless of all vocational expert opinions, the burden rests on the shoulders of the injured employee to at least make a reasonable effort to secure employment if the evidence does not show her to be totally medically disabled. That the claimant here failed/refused to do a job search or to check any jobs made available to her negates an award of permanent total disability.*

Claimant was injured on February 20, 2004. As we noted in Garcia v. Fence Masters, Inc., 16 So.3d 200, 202 (Fla. 1st DCA 2009), for injuries occurring on or after October 1, 2003, the JCC must “consider not only physical restrictions, but also the vocational restrictions, if any, imposed on the individual seeking benefits.” See also Ferrell Gas v. Childers, 982 So.2d 36 (Fla. 1st DCA 2008); Wal-Mart Stores, Inc. v. Thompson, 974 So.2d 516, 517 (Fla. 1st DCA 2008). In Commercial Carrier Corp. v. LaPointe, 723 So.2d 912, 916-17 (Fla. 1st DCA 1999), we recognized three ways to prove entitlement to PTD benefits: “(1) evidence of permanent medical incapacity to perform even light work uninterruptedly; (2) evidence of permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search; or (3) evidence of permanent work-related physical restrictions that, while not alone totally disabling, do preclude performing light work uninterruptedly, when combined with vocational factors.” Although LaPointe applied the pre-1994 version of the PTD statute, we have acknowledged that the prior case law is instructive because the current PTD statute is similar. Ferrell Gas, 982 So.2d at 37.

Under the version of section 440.15(l)(b) applicable to this 2004 date of accident, a claimant not presumptively PTD based on a listed injury “must establish that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to his or her physical limitation.” § 440.15(l)(b), Fla. Stat. (2003). Thus, a claimant who does not have a listed injury may prove entitlement to PTD benefits by presenting evidence of (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; (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.

Where it is not clear the JCC employed the correct legal standard in denying PTD benefits, reversal is required. Garcia, 16 So.3d at 202; Houck v. Lee County Bd. of County Comm'rs, 995 So.2d 1102, 1103 (Fla. 1st DCA 2008). Accordingly, we reverse and remand with directions that the JCC determine whether Claimant is entitled to PTD benefits based *884on evidence of 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. We also direct the JCC to reconsider the related claims for attorney’s fees and costs.

REVERSED and REMANDED, with directions.

KAHN, LEWIS, and CLARK, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Rocha v. City OF Tampa/Commercial Risk Mgmt., 100 So. 3d 138 (Fla. 1st DCA 2012)
    …bility and the purpose of the workers’ compensation system.”). Finally, it would be inconsistent with the accepted use of medical work restrictions to prove disability for other purposes under the Workers’ Compensation Law. Cf. Blake v. Merck & Co., 43 So. 3d 882 (Fla. 1st DCA 2010) (permanent total disability); Arnold v. Fla.'s Blood Ctrs., Inc., 949 So. 2d 242 (Fla. 1st DCA 2007) (temporary partial disability); Emro Mktg. v. Jones, 671 So. 2d 237 (Fla. 1st DCA 1996) (temporary total disability). Because a…
  • Hernandez v. The GEO Grp., 46 So. 3d 1123 (Fla. 1st DCA 2010)
    …or greater, and thus require vocational testimony to establish his entitlement to PTD. See § 440.15(l)(b)5., Fla. Stat. (2007) (conditioning award of PTD on inability to engage in sedentary work); see also, e.g., Blake v. Merck & Co./SRS, 1D09-5464, 43 So. 3d 882 (Fla. 1st DCA September 7, 2010) (explaining available means of proving entitlement to PTD, including proof based on medical incapacity to perform requisite level of work). The JCC’s alternative denial of PTD for periods following MMI is equally, if…
  • Buttrick v. BY THE SEA Resorts, Inc., 108 So. 3d 658 (Fla. 1st DCA 2013)
    ….-5., Fla. Stat. (2007). If Claimant does not have a statutorily enumerated condition, the JCC should then determine whether Claimant has established entitlement to PTD benefits based on the three alternative methods set out in Blake v. Merck & Co., 43 So. 3d 882, 888 (Fla. 1st DCA 2010) (explaining alternative methods of proving entitlement to PTD benefits where claimant does not have statutorily listed injury). If, on the other hand, the JCC finds Claimant has not reached MMI, but because she has exhausted…

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