FERRELL GAS AND GALLAGHER BASSETT SERVICES, INC., APPELLANTS,
v.
NORMAN CHILDERS, APPELLEE
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Ferrell Gas and Gallagher Bassett challenged a workers' compensation award of permanent total disability benefits, arguing the judge improperly considered the claimant's vocational abilities alongside physical limitations. The court affirmed, holding that Florida law permits consideration of both physical and vocational factors in determining permanent total disability eligibility.
Yes. Under the current version of section 440.15(l)(b), Florida Statutes, permanent total disability benefits may be based on a combination of physical restrictions and vocational factors that preclude the level of work specified in the statute, consistent with pre-1994 case law recognizing the propriety of considering both factors.
[1] A workers' compensation claimant may establish permanent total disability by demonstrating that the combination of physical limitations and vocational abilities renders t…
[2] The determination of permanent total disability benefits may consider both a claimant's physical limitations and their vocational abilities.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the combination of his physical limitations and vocational abilities render him permanently and totally disabled”
Establishes the judge's basis for awarding permanent total disability benefits considering both factors
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Join FLexlaw to unlock all legal intelligenceClaimant suffered an industrial injury in 2004, for which the employer/carrier accepted compensability and provided medical care and indemnity benefit…
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PER CURIAM.
The employer/carrier challenge a workers’ compensation order awarding permanent total disability benefits. They argue the judge of compensation claims should not have considered the claimant’s vocational abilities in connection with his physical limitations in awarding benefits. Because these factors were properly considered, the appealed order is affirmed.
The claimant suffered an industrial injury in 2004, for which the employer/carrier accepted compensability and provided medical care and indemnity benefits. However, they denied permanent total disability benefits on the basis that the claimant is physically capable of sedentary work. After an evidentiary hearing, the judge determined that while the claimant’s physical limitations alone do not preclude him from engaging in sedentary work, the combination of his physical limitations and vocational abilities render him permanently and totally disabled.
The current and applicable version of section 440.15(l)(b), Florida Statutes, provides a list of injuries which presumptively qualify a claimant for permanent total disability benefits. The statute then provides that, in all other cases, the claimant “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. Prior to 1994, section 440.15(l)(b) required a claimant who did not have a listed injury “to establish that he is not able uninterruptedly to do even light work available within a 100-mile radius of the injured employee’s residence due to physical limitation.” § 440.15(l)(b), Fla. Stat. (1993).
Under the pre-1994 version of section 440.15(l)(b), permanent total disability benefits may be based on physical restrictions and vocational factors which combine to preclude the level of work provided in the statute. See Commercial Carrier Corp. v. LaPointe, 723 So. 2d 912 (Fla. 1st DCA 1999); Shaw v. Publix Supermarkets, Inc., 609 So. 2d 683 (Fla. 1st DCA 1992). The pertinent language in the current version of section 440.15(l)(b) is similar to the language under which this court has recognized that it is appropriate to consider both physical and vocational factors.
Accordingly, such factors were properly considered in this case, and the order is affirmed.
ALLEN and WEBSTER, JJ., concur; THOMAS, J., concurs in result only.
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Blake v. Merck & Co., 43 So. 3d 882 (Fla. 1st DCA 2010)…a. 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)…
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Garcia v. Fence Masters, Inc., 16 So. 3d 200 (Fla. 1st DCA 2009)…for PTD benefits for injuries occurring on or after October 1, 2003, requires the JCC to consider not only physical restrictions, but also the vocational restrictions, if any, imposed on the individual seeking benefits. See Ferrell Gas v. Childers, 982 So. 2d 36, 37 (Fla. 1st DCA 2008); see also Wal-Mart Stores, Inc. v. Thompson, 974 So. 2d 516, 517 (Fla. 1st DCA 2008). Disposition Here, the JCC made no finding as to which, if any, vocational impairments or factors she considered in denying benefits. More…
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Sarasota Cnty. Sch. Board/Optacomp v. Roberson, 135 So. 3d 587 (Fla. 1st DCA 2014)…ical improvement for the injured employee’s physical injury or injuries”). There is no similar limitation placed on the payment of PTD benefits. Our reliance here on pre-1994 case law is in keeping with our determination in Ferrell Gas v. Childers, 982 So. 2d 36, 37 (Fla. 1st DCA 2008), that a claimant’s vocational abilities are relevant in determining whether an award of PTD benefits is appropriate. Specifically, the Childers Court stated that “[ujnder the pre-1994 version of section 440.15(l)(b), [PTD] be…
Authorities Cited
- Commercial Carrier Corp. & Comcar Indus., Inc. v. LaPOINTE, 723 So. 2d 912 (Fla. 1st DCA 1999)
- Shaw v. Publix Supermarkets, 609 So. 2d 683 (Fla. 1st DCA 1992)