Share This Article:
Case File
Evidence that a worker had access to a variety of other jobs defeated her argument that nothing was available that she could do within a 50-mile radius of her home. Simply Research subscribers have access to the full text of the decision.
Case
Mejia v. Home Services of Southwest Florida, Corp., No. 22-027443JAW (Fla. OJCC 10/23/24).
What Happened
A certified nursing assistant broke her left wrist in a compensable on-the-job accident, for which she underwent surgery.
Eventually, following a functional capacity evaluation, the CNA's doctor placed her at maximum medical improvement with work restrictions under which the CNA could perform medium duty.
The CNA continued to work for the employer until an incident in which the father of one of her patients asked her why she did not speak English despite being a 20-year U.S. resident. The CNA resigned from taking care of that patient.
The employer found this resignation unwarranted, so it terminated the CNA's employment.
Following her termination, the CNA filed for permanent total disability benefits and began a job search limited to housekeeping positions that her husband or sister found for her.
The employer arranged for an independent medical evaluation, which concluded that the CNA had an "excellent" restoration of her wrist and ultimately sided with the previous MMI determination from the FCE.
The CNA hired a vocational expert who opined that the CNA could not access or obtain employment within a 50-mile radius of her home. The employer's expert disagreed, opining that the CNA could perform jobs including companion, phlebotomist, recreational aide, blood donor unit assistant, school crossing guard, retail sales, locker room attendant, and more.
Rule of Law
In Florida, to qualify for PTD benefits, an employee must establish that she is not able to engage in at least sedentary employment within a 50-mile radius of the employee's residence due to her physical limitation.
Workers' Comp 101: In Blake v. Merck & Company, 43 So. 3d 882 (Fla. Dist. Ct. App. 2010), the court held that a claimant may prove entitlement to PTD benefits by showing any of the following:
(1) Permanent medical incapacity to engage in at least sedentary employment, within a 50-mile radius of the claimant's home, due to physical limitation.
(2) Permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search.
(3) Permanent work-related physical restrictions that, while not alone totally disabling, preclude the claimant from engaging in at least sedentary employment when combined with vocational factors.
In Gulf Management, Inc. v. Wall, 375 So. 3d 296 (Fla. Dist. Ct. App. 2023), the court held that the Blake factors are not separate theories of but are “guidelines for what a JCC may consider to be sufficient proof to demonstrate PTD."
What the Judge of Compensation Claims Said
The CNA did not meet her burden for PTD benefits. The JCC agreed with the employer that the CNA was capable of working medium duty. Specifically, the JCC pointed out:
+ The CNA had no restrictions to her right upper extremity.
+ Though the CNA was left-handed, she wrote with her right hand.
+ The CNA drew blood with her right hand.
+ The CNA chose not to look for work at all for over 1.5 years.
"Thus, I find her job search was not concluded in an effort to obtain employment, but rather, it was a litigation strategy to obtain PTD benefits," the JCC wrote.
Takeaway
In Florida, a worker isn't likely to show that she couldn't find work for purposes of establishing her claim for PTD benefits if it appears to the JCC that nothing would preclude her from doing so if she "truly wanted to find employment."
AI california case management case management focus claims compensability compliance compliance corner courts covid do you know the rule ethics exclusive remedy florida glossary check Healthcare health care hr homeroom insurance insurers iowa leadership medical NCCI new jersey new york ohio opioids osha pennsylvania Safety simply research state info technology texas violence WDYT west virginia what do you think women's history month workers' comp 101 workers' recovery workers' compensation contact information Workplace Safety Workplace Violence
Read Also
About The Author
About The Author
-
Frank Ferreri
Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law. Frank encourages everyone to consider helping out the Kind Souls Foundation and Kids' Chance of America.
More by This Author
Read More
- Nov 04, 2024
- Chriss Swaney
- Nov 04, 2024
- Chris Parker
- Nov 04, 2024
- Liz Carey
- Nov 04, 2024
- Frank Ferreri
- Nov 03, 2024
- Frank Ferreri
- Nov 02, 2024
- Frank Ferreri