Frequently Asked Questions - What is Permanent Total Disability?
Permanent Total Disability (PTD) in Florida workers’ compensation law refers to a class of benefits that are available to the most severely injured workers. Essentially to qualify for PTD benefits in Florida, you need to have sustained an injury that prevents you from engaging in gainful employment in the future. If you qualify for these benefits, you can receive up to two thirds of your pre-accident wages up until age 75 (or for life if your accident was before 10/1/03). Like many benefits in Florida, the specific benefit entitlement and burden of proof required to receive these benefits is dependent on when the accident happened.
For accidents occurring after 10/1/03, you can receive PTD benefits if you can show an inability to engage in even sedentary work. Sedentary work means that you are not required to carry or lift more than ten pounds regularly or be walking or standing for a good part of the day. As with almost all benefits in workers’ comp, the burden for proving entitlement is on the injured worker. The Employer/Carrier are not required to prove that you can work; rather you must prove that you can’t. In only very limited circumstances is that burden shifted to the E/C. Those circumstances are a severe spinal cord injury causing paralysis, amputation or effective loss of a hand or foot, a severe brain or closed head injury, significant second or third degree burns, and blindness. For any other injury, the injured worker has the burden of proving an inability to work.
So how does one go about proving an inability to work? You might think that the testimony of the injured worker would be significant in determining whether he or she can work. After all, who knows better than you whether you are physically able to do the job? Unfortunately, the law requires much more than your opinion about whether you can do your job. In the overall scheme of things, your opinion or that of your attorney about your work ability is insignificant at best. For an opinion about your work ability to count in the workers’ comp court, it must come from a doctor and not just any doctor. The opinion must be from a doctor authorized by the insurance company, or an independent medical doctor, or a court appointed doctor. Any other doctor, no matter how qualified, is not somebody that the judge can rely on in a workers’ comp case. Once you get one of these doctors to say that you’re as good as you’re going to get, and that you can’t engage in the job you were doing at the time of the accident, does that mean you’re PTD? Unfortunately not. The question the doctor has to answer is not whether you can do your old job, but what are the permanent restrictions that you have as a result of your workers’ comp injury. If you have no medical restrictions, your chances of receiving PTD benefits are nil. Even if you have permanent light duty restrictions, this does not mean you are entitled to PTD benefits. Remember the test is whether you can do even sedentary work, which is even less than light duty.
So proving that you are incapable of work and thus entitled to PTD benefits becomes a combination of proving a medical condition or disability related to the workplace accident as well as showing vocational evidence of an inability to work. So how does one show vocational evidence an inability to work? Well, not surprisingly, one of the most common methods is by providing evidence from a vocational expert. This expert, who almost always has a master’s or doctorate degree, is educated and trained in knowing the labor market and the requirements of various jobs. The vocational expert will look at the medical restrictions, take inventory of the injured worker’s education and work history, and then make a determination about whether there are suitable jobs in the economy for the injured worker to be able to return to work. If the vocational expert’s opinion is that there are not suitable jobs within your medical limitations to return to gainful employment, then you have enough evidence to make what is called a prima facie case of entitlement to permanent total disability benefits.
One of the other ways of providing vocational evidence of an inability to work and thus entitlement to PTD benefits is to engage in an exhaustive, good faith, and yet unsuccessful job search. Well how does one do that? To be exhaustive, you have to look for numerous jobs over a good length of time. Every judge will have different requirements based on the facts of the particular case, but a good rule of thumb is that you are making four or more prospective job contacts a week over a period of a year or more. If you make substantially less contacts that that, the judge may believe that you have not sufficiently tested the job market to be entitled to permanent total disability benefits. Another requirement of your job search is that it be in “good faith”. In other words, the judge has to believe that your actions demonstrate that you are actually trying to get a job. You have to check with employers who are actually hiring for jobs that you are both physically capable of doing and you have training or skills to do. If you’ve driven trucks for the last fifteen of your life and you have no education past high school, the judge isn’t going to consider job contacts with a minimum of an advanced college degree to be in good faith. Finally, to be a job search that shows you may be entitled to PTD benefits, your job search has to be unsuccessful. If you find a job and are able to do that job, it’s obviously going to be impossible to prove to the satisfaction of the judge or anyone else for that matter that you are unemployable. Now just because you’re offered a job doesn’t mean you can do it. If you make a legitimate effort to do a job you are offered and you find that you are not able to do it, it count still be used to show an exhaustive but unsuccessful good faith job search.
Since PTD are benefits that can be paid out over decades, insurance companies will fight tooth and nail to resist providing these benefits. One of the easiest and most common techniques that insurance companies will use is to offer the injured worker a job. Even if you can’t do your full duty, 60 hour a week, $25 an hour job that doesn’t mean that you can’t do a lighter job working 32 hours a week making $10 per hour. Unfortunately, this will most always be conclusive evidence to the judge that you are capable of gainful employment. The job does not have to pay you what you are used to making or even what you need to earn to pay your bills to be a legitimate job offer that the employer can use to defeat your claim for PTD benefits.
Another way that insurance companies will defend your claim for permanent total disability benefits is by attacking the doctor’s opinions about your work capabilities. They will use subtle and sometimes not so subtle pressure to try to get the doctors to whom they often send business to say that you are capable of lifting 25 pounds instead of just 10, or that some of your disability is pre-existing, or that you are exaggerating your symptoms. They will conference the doctors without you being present, sometimes even showing them surveillance video of you engaged in certain activities, and try to convince the doctors that you are very much capable of work.
Yet another tactic that insurance companies will use to try to defeat your claim for permanent total disability is to hire their own vocational expert. This hired gun knows that it is his or her job to say that you can work, that despite your physical limitations there are plenty of jobs in the geographical area that you live in that you are capable of doing. Thus, it is very possible for you to prove to the judge that you can only lift 15 pounds instead of the 100 pounds you used to be able to lift, that now you can make only $10 an hour instead of the $32 per hour that you were used to making, and that you can only work forty hours a week instead of all the overtime you used to work - and guess what, you still lose your case.
Is this fair? Obviously not. The workers’ compensation system isn’t designed to be fair. You usually don’t get to pick the doctors who express opinions about whether you can work or not, whether you have a pre-existing condition, or whether you’re “gaming” the system. The insurance company gets to do that. You don’t get paid for lifelong wage loss, if there is some job out there that you are capable of doing. You don’t get paid for pain and suffering, loss of enjoyment of life, or many of the other damages you can recover in a persona injury claim.
Your permanent total disability hearing will not be held in front of a jury of your peers. Rather, it will be decided by a workers’ compensation judge who very often worked for insurance companies and employers before getting appointed to the bench. And if you do win, that doesn’t mean your case is over. The insurance company only has to pay benefits through the date of the hearing. The law provides ways for them to challenge your continuing right to receive these PTD benefits.
Because PTD benefits are significant, and because they are not easy to secure, you need experienced counsel fighting for your benefits. While we can’t tell you that you are or are not entitled to these benefits, Trial Pro, P.A. will do whatever we can to secure the benefits you are entitled to. You deserve an attorney who will take the time to understand the facts of your case, explain how the law works given the facts of your case, and do what they can to make sure you get everything you’re entitled to. Let us help you get everything you deserve!