The News You Need for Nov. 2

What was the deal with a worker's claim that she couldn't find a job?

Availability of Jobs Sinks CNA’s Try for PTD Benefits

Frank Ferreri

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."