In Florida and many other states, workers’ compensation pays permanent total disability (PTD) benefits when an employee is unable to be employed because of a work-related disability. In Florida, an employee can prove unemployability, and an employer can prove employability, through the testimony of a vocational expert that is supported by medical evidence.
PTD Benefit Standard
Workers’ compensation provides benefits to employees who are injured at work or in the performance of work-related duties. Those benefits include medical treatment, temporary total disability benefits that replace a portion of the employee’s wages while the employee is recovering, and permanent partial disability benefits if the employee is capable of working but suffers a permanent physical or psychological impairment because of work injury.
Employees who cannot work at all because of a disabling work injury may be entitled to PTD benefits. While Florida’s workers’ compensation law has changed over the years, the current version of Florida law requires PTD benefits to be paid to an eligible employee for as long as the disability continues.
Eligibility depends on whether the employee is “engaged in, or is physically capable of engaging in, at least sedentary employment.” An employee who is or could be working in sedentary employment is not eligible for PTD benefits, regardless of the severity of the employee’s impairment.
Certain catastrophic disabilities are presumed to create an inability to work. Severe brain injuries, total blindness, paralysis, and limb amputations are examples of injuries that presumptively prevent an employee from working.
When a disability is not on the list of injuries that presumptively entitle an employee to PTD benefits, “the employee 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.” Fla. Stat. § 440.15.
Whether an employee is eligible for PTD benefits depends in part on the employee’s physical, cognitive, or psychological limitations. Those limitations are determined by medical professionals, often after conducting functional capacity evaluations. The evaluations provide objective evidence of an employee’s limitations, including impairments of (among many other attributes) the ability to stand, sit, lift, bend, reach, manipulate fingers, concentrate, and remember.
Role of Vocational Expert
The Florida workers’ compensation statute governing PTD benefits recognizes the right of both employees and employers to conduct vocational evaluation and testing. A former version of the statute required employees to prove that they had conducted a lengthy and exhaustive but unsuccessful work search as a condition of eligibility for PTD benefits. Vocational experts often opined about the adequacy of job searches and whether a more diligent search would have been successful.
The current version of the law does not require proof of a job search, although courts have held that job search evidence can be accepted as proof of unemployability. The new law focuses instead on whether the employee is capable of working in a sedentary job. Functional limitations can be determined by medical specialists, but doctors have no particular knowledge of jobs within 50 miles of a patient’s home that a patient with a particular set of limitations can perform. Vocational experts provide the link between physical disabilities and employability.
In several cases, Florida courts have held that an employee’s physical limitations and “vocational abilities” must be considered together in determining whether an employee is entitled to TTD benefits. As the court noted in Garcia v. Fence Masters, vocational restrictions can be just as important as physical restrictions in determining whether jobs are located within 50 miles of a disabled employee’s residence that the employee would be capable of performing.
A woman named Kathryn was working as a teacher’s aide when she was injured while attempting to restrain a violent child. Her wrist injury required two surgical repairs. The wrist injury resulted in a 9% permanent impairment rating.
Although the wrist injury alone would not have qualified Kathryn for PTD benefits, Kathryn’s treating physician recommended that she have a psychological evaluation. She was treated by a psychiatrist and a mental health counselor. The medical evidence established that her mental health condition was permanent and that it was caused by her employment. A vocational expert determined that she was unemployable. The workers’ compensation judge decided that Kathryn was entitled to PTD benefits.
The school board that employed Kathryn appealed. The Board argued that a psychiatric condition cannot be the basis for unemployability. The appellate court recognized that in the absence of a physical injury, a mental health injury is not usually compensable under Florida’s workers’ compensation statutes. The court concluded that a physical injury at work, accompanied by an injury to mental health, can produce a disability that prevents the employee from working. The combination of physical or mental restrictions and vocational restrictions must be considered when deciding whether to award PTD benefits.
The Vocational Expert’s Role
Doctors can assess physical and psychiatric limitations, but they cannot determine whether employment is available to people who have those limitations. In Blake v. Merck & Co., the Florida District Court of Appeals held that entitlement to PTD benefits can be proved with 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.” A vocational expert is uniquely positioned to determine whether vocational factors preclude sedentary employment.
The demands of sedentary employment vary. Vocational experts gather data from a variety of sources to determine the skills that are required to perform various sedentary jobs. They then examine the job market within a 50-mile radius of the employee’s home to identify jobs within that area.
Vocational experts consider the physical and psychiatric limitations that medical experts have identified with regard to an employee who is claiming PTD benefits. The experts then assess the vocational abilities of the employee. That assessment includes an examination of educational and employment history and whether the employee has transferrable skills that could be utilized in the performance of work.
A comparison of physical/psychiatric limitations and vocational abilities to the demands of jobs within the 50-mile radius allows the vocational expert to determine whether jobs exist within that market that the employee claiming PTD benefits is capable of performing. The expert’s resulting opinion, whether offered for the employee or the employer, provides important evidence for the workers’ compensation judge to consider in evaluating a claim for PTD benefits.