Month: April 2015

PTD Series; Importance of a Thorough Job Search

According to the Florida statutes, in order to establish entitlement to permanent total disability benefits, the following standard applies:

F.S. 440.15 – Compensation for disability

Permanent Total Disability –

  •  In case of total disability adjudged to be permanent… No compensation shall be payable under this section if the employees engaged in, or is physically capable of engaging in, at least sedentary employment.
  • In the following cases, and injured employee is presumed to be permanently and totally disabled unless the employer or carrier, establishes that the employee is physically capable of engaging in at least sedentary employment within a 50 – mile radius of the employees residence;
  1. Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;
  2. Amputation of an arm, a hand, a foot, or a leg involving the effect of loss of use of that appendage;
  3. Severe brain or closed – to head injury as evidenced by: Severe sensory or motor disturbances; Severe communication disturbances; Severe complex integrated disturbances of cerebral function; Severe episodic neurological disorders; or other severe brain enclose – head injury conditions. At least this severe in nature is any condition provided in sub – subparagraphs a – d;
  4. Second – degree or third – degree burns of 25% or more of the total body surface or third – degree burns of 5% or more to the face and hands; or
  5. Total or industrial blindness

In all other cases, in order to obtain permanent total disability 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…

The First District Court of Appeal of Florida – the court that adjudicates workers’ compensation disputes – reached a decision instructive to the issue in the case of Blake v. Merck  and Company, Inc., 43 So.3d 882 (Fla. 1st DCA 2010). In that case, the court stated as follows:

“… We recognize three ways to prove entitlement to PTD benefits: (1) evidence of permanent medical incapacity to perform even light work uninterruptedly; (2) evidence of permanent work related physical restrictions, coupled with an exhaustive, but unsuccessful job search or (3) evidence of permanent work – related physical restrictions that, while not alone totally disabling, do preclude performing light work uninterruptedly, when combined with vocational factors”

Based upon the second component in the Blake case, it is our viewpoint it is absolutely imperative in preparing a claim for permanent total disability a claimant perform a thorough job search. In order to meet the standards set forth in Blake, the job search must cover a radius of 50 miles from the claimant’s home. A thorough job search would require a claimant to travel periodically to locations up to 50 miles away from his or her home to look for jobs in that geographical area.

Tips for Performing a Thorough Job Search ; Completing Supporting Documentation

It is important a claimant put all relevant information for each search, i.e. name, location, phone number, person contacted, etc.  It is also important that the jobs be consistent with the claimant’s physical restrictions and with employers that are hiring or at least willing to accept applications. The Sunday paper provides many open job leads and is a great place to start. Another great resource for job leads is the State of Florida Division of Vocational Rehabilitation – Injured Worker Program.

Supporting documentation detailing a thorough job search is essential in preparing a claimant’s case for an eventual hearing before a judge of compensation claims on the issue of whether or not he or she is permanently and totally disabled.

Christopher Smith, P.A.  has represented injured workers throughout West Central Florida since 1989. If you have questions regarding permanent total disability benefits, or have questions regarding your Florida workers’ compensation case, we are here to help. If you would like a free in home consultation, contact one of our experienced Tampa workers’ compensation attorneys today. There is never an attorney’s fee due if we don’t recover on your behalf.

Sickle Cell Disease and Social Security Disability

Sickle Cell Disease is the most common form of inherited blood disease and affects about 90,000 – 100,000 Americans[1].  Sickle Cell Disease causes the red blood cells to become hard and sticky, and look like a C-shaped farm tool called a “sickle.” People with Sickle Cell Disease can live full lives and enjoy most of the activities that other people do. However, the symptoms can progress and impair an individual’s ability to work. This Blog article will address the physical symptoms presented by Sickle Cell Disease that may impair an individual’s ability to work. An inability to work will typically prompt an application for Social Security disability benefits.

sickle-cell-disability-lawyerTreatment for Sickle Cell Disease includes antibiotics, pain management and blood transfusions. About half of people with sickle cell anemia survive to age 50. Generally, Sickle Cell Disease is not curable, except in rare instances by bone marrow transplantation.

The ultimate question in a disability case where the person was working, then has to stop working because of the symptoms of their disease would be: Can the person, given their residual functional capacity perform either their past work or any other work in the national economy? Of course, to answer this, you would need the person’s residual functional capacity, or in other words, what an individual is able to do, despite functional limitations resulting from Sickle Cell Disease (or a medically determinable complication) and condition-related symptoms.

Clinical Problems Caused by Sickle Cell Disease

  • Anemia
  • Acute Splenic Sequestration
  • Acute Splenic infarction
  • Transient Aplastic Crisis
  • Hepatic Sequestration
  • Jaundice
  • Visual impairment
  • Hand-foot syndrome
  • Growth impairment
  • Cardiomyopathy
  • Strokes
  • Acute chest syndrome
  • Infections
  • Pain ( thrombotic, vaso-occlusive ) crises
  • Leg Ulcers
  • Damage to Major Organs
  • Pulmonary hypertension

[alert type=”info” close=”true”]

The RFC assessment from POMS DI 24510.001:

  • is based primarily on medical evidence but may also include observation or description of limitations (e.g., lay evidence, including the claimant’s statement);
  • describes what an individual is able to do, despite functional limitations resulting from a medically determinable impairment(s) and impairment-related symptoms; and
  • is an administrative determination of an individual’s capacity to perform work-related physical and mental activities.

[/alert]

Residual Functional Capacity

Although the sickle cell trait is not serve in and of itself, the condition can cause significant limitations in some individuals.  Even if a claimant with Sickle Cell Disease appears physically strong, possibly lethal or crippling consequences ( Stroke, heart attack ) can occur if the red blood cells are stressed enough to deform. There are also hot and cold stressors for persons with Sickle Cell Disease. Therefore, it is common to have environmental limitations.

Additionally, physical activities may result in limiting fatigue or have resulted in previous serious medical complications. In addition, If there are additional complications, such as visual, neurological, cardiac, etc., these impairments will also be carefully evaluated and weighed.

As is the case with most medical conditions and Social Security disability, it is not the severity of the diagnosis, but how that condition limits the individual’s ability to work. If you have questions regarding Sickle Cell Disease and Social Security disability, or have other questions for a Tampa Social Security Disability Lawyer, call our office for a free consultation.

[1] http://www.cdc.gov/ncbddd/sicklecell/data.html

Psychiatric Conditions in Workers’ Compensation Cases

Most work injuries are physical in nature. Whether you suffer broken bones from a fall or injure your back while lifting, there is some damage to your body for most people who experience a workers’ compensation injury in Florida.  Those who have physical injury on the job should generally be able to receive workers’ comp benefits. However, there are certain serious work injuries that are much more difficult to pursue benefits for through the Florida workers’ compensation system. These injuries are psychiatric in nature. This blog article will discuss the applicable statute and some case law explaining how psychiatric conditions are handled in workers’ compensation cases.

The statute and case law applicable to injuries occurring on or after 10/1/03.

  1. the-statuteThe statute
  • 440.093 Mental and nervous injuries.
    (1) A mental or nervous injury due to stress, fright, or excitement only is not an injury by accident arising out of the employment. Nothing in this section shall be construed to allow for the payment of benefits under this chapter for mental or nervous injuries without an accompanying physical injury requiring medical treatment. A physical injury resulting from mental or nervous injuries unaccompanied by physical trauma requiring medical treatment shall not be compensable under this chapter.
    (2) Mental or nervous injuries occurring as a manifestation of an injury compensable under this chapter shall be demonstrated by clear and convincing medical evidence by a licensed psychiatrist meeting criteria established in the most recent edition of the diagnostic and statistical manual of mental disorders published by the American Psychiatric Association. The compensable physical injury must be and remain the major contributing cause of the mental or nervous condition and the compensable physical injury as determined by reasonable medical certainty must be at least 50 percent responsible for the mental or nervous condition as compared to all other contributing causes combined. Compensation is not payable for the mental, psychological, or emotional injury arising out of depression from being out of work or losing employment opportunities, resulting from a preexisting mental, psychological, or emotional condition or due to pain or other subjective complaints that cannot be substantiated by objective, relevant medical findings.
    (3) Subject to the payment of permanent benefits under s. 440.15, in no event shall temporary benefits for a compensable mental or nervous injury be paid for more than 6 months after the date of maximum medical improvement for the injured employee’s physical injury or injuries, which shall be included in the period of 104 weeks as provided in s. 440.15(2) and (4). Mental or nervous injuries are compensable only in accordance with the terms of this section.
  • 440.15 (3) (c)

“Impairment income benefits as defined by this subsection are payable only for impairment ratings for physical impairments. If objective medical findings can substantiate a permanent psychiatric impairment resulting from the accident, permanent impairment benefits are limited for the permanent psychiatric impairment to 1% permanent impairment.”

  1. Case law under 440.093
  1. McKenzie v. Mental Health Care, Inc., 43 So.3d 767 (Fla. 1st DCA 767)
  1. Generally

In the author’s opinion, this case, more than any other case, provided a thorough and comprehensive explanation of section 440.093, and should be viewed as the starting point for any current analysis of entitlement to psychiatric benefits under the 2003 legislative changes.

  1. Facts

The claimant, a registered nurse, worked in a treatment center that houses patients with behavioral and mental disorders. While at work, a violent patient attacked her and struck her in the neck and throat. As a result of the accident, she was diagnosed with a laryngeal contusion and vocal cord hematoma. These physical injuries required medical treatment. The employer/carrier accepted these claims as compensable. In addition to the claims based on her physical injuries, the claimant claimed psychiatric injuries and requested treatment with a psychiatrist. The employer carrier denied the psychological claims, alleging the psychiatric injuries were not compensable. At a hearing before the JCC, both parties arguments focused on section 440.093 (2), which authorizes coverage for psychiatric injuries that manifest themselves as a result of a physical injury otherwise compensable under chapter 440. In light of both parties’ arguments, the JCC denied the compensability of the psychiatric injuries, concluding there was no evidence that the claimant’s laryngeal contusion and vocal cord hematoma alone constituted at least 50% of the hurt of the cause of her PTSD, dysthymic disorder, anxiety disorder, or personality disorder.

  1. The court’s analysis of the various components of 440.093

“…Section 440.093 (1) contains three sentences, with each sentence addressing different situations when mental or nervous injuries may arise in the workplace. Section 440.093 (2) defined the fourth situation involving mental or nervous injuries.

The first sentence in 440.093 (1) provides ‘a mental or nervous injury due to stress, fright, or excitement only is not an injury by accident arising out of the employment.’.. This provision precludes coverage for mental or nervous injuries caused only by mental trauma…. Examples might include a situation where an employee experiences mental trauma after being robbed at gunpoint, but does not suffer a physical injury requiring medical treatment; or perhaps a situation where an employee suffers a mental or nervous injury as a consequence of witnessing some horrific event at the workplace…

The second sentence in section 440.093(1) provides: ‘nothing in this section shall be construed to allow for the payment of benefits under this chapter for mental or nervous injuries without an accompanying physical injury requiring medical treatment.” This second provision recognizes and makes compensable mental or nervous injuries that accompany a separate physical injury serious enough to require medical treatment. Critically important to the interpretation of this provision is the recognition that a workplace accident can cause an employee to suffer both a physical and a separate mental or nervous injury…. Generally, if a separate mental or nervous injury occurs at the same time as a physical injury requiring medical treatment, the mental or nervous injury will also be compensable. For example, if an employee, in the course and scope of employment, is sexually assaulted at the workplace and suffers a physical injury that requires medical treatment, the physical injuries are certainly compensable. If the employee also suffers a mental or nervous injuries, separate and apart from the physical injury, the mental or nervous injury is compensable because it would meet the section 440.09 requirements and also comply with section 440.093 (1). In this hypothetical situation, the employee would have simultaneously suffered two compensable workplace injuries: one physical and one mental… 

The third sentence in section 440.093(1) provides: ‘ physical injury resulting from mental or nervous injuries, unaccompanied by physical trauma requiring medical treatment shall not be compensable under this chapter. This third provision precludes coverage when a mental or nervous injury, not accompanied by physical injury requiring medical treatment, causes a subsequent physical injury. Thus, an employee under this provision will not receive compensation for a physical injury If that physical injury occurred solely as a result of the employee experiencing mental or nervous trauma at the workplace. An example of the situation may be where an employee becomes stressed or nervous about something occurring at work and the stress or nervous. This causes the employer to suffer a heart attack or other internal failure. In this hypothetical, the physical injury (the heart attack) him was caused by the mental or nervous injury (stress, fright, excitement) they would not be compensable under chapter 440.”

Subsection 440.093(2) defines a fourth situation involving mental or nervous injury. This subsection authorizes coverage for mental or nervous injuries which are the manifestation of the physical injury otherwise compensable under Chapter 440. Under the workers’ compensation law,” manifestation” is a disease or infection that naturally or unavoidably results from an initial, compensable workplace injury… Pursuant to this provision, an employee who suffers an initial physical injury requiring medical treatment may recover for any mental or nervous injury that manifests, so long as the initial physical injury is the major contributing cause of the mental or nervous injury… For example, if an employee loses a limb operating heavy machinery and, over time, the loss of the limb causes the employee to become clinically depressed or mentally unstable (a natural manifestation of the physical injury), the mental or nervous injury will also be compensable under chapter 440. Another example may arise in a situation where an employee suffers a physical injury that causes long-term chronic pain. If the chronic pain eventually results in the employee suffering a mental or nervous injury requiring treatment, the mental or nervous injury would be compensable as the manifestation of the physical injury.

  1. Conclusion

The claimant had argued that the JCC erred in finding her mental injuries were not covered under section 440.093(2). However, at the hearing before the JCC, the claimant did not present any evidence to support her claim that a compensable mental or nervous injury have manifested as a result of for physical injuries. Instead, the record indicated she presented evidence that she may have suffered a separate mental or nervous injury that accompanied (occurred at the same time as) the physical injuries to her neck and throat. In fact, two different psychiatrists testified that the claimant’s mental or nervous injuries were the result of the accident (the attack at her workplace), not the result of the physical injury to the claimant’s neck. The court concluded that because these mental or nervous injuries may have occurred at the same time as the physical injuries that required medical treatment, the medical mental or nervous injuries could only be compensable under the second sentence in section 440.093(1). Therefore, the JCC was correct in finding they could not, without further evidence, be compensable under section 440.093 (2). Because the claimant had presented evidence relating directly to the type of mental or nervous injury defined in the second provision of section 440.093(1), but made an argument based on the type of injury defined in section 440.093 (2), the court concluded the JCC was correct in finding there was insufficient evidence to support the claimant’s argument that she was entitled to compensation pursuant to 440.093 (2). However, because the court concluded that both the claimant in the employer carrier were uncertain as to the nuances of section 440.093, the matter was reversed and remanded for further proceedings, including the taking of additional evidence, if necessary.

  1. Cases following McKenzie
  • Alachua County Fire Rescue v. Hoskinson, 93 So.3d; 1014 (Fla.1st DCA 2012); PCA issued. This case addressed the issue of the compensability of a psychiatric condition that was alleged to have been the manifestation of a physical injury otherwise compensable under Chapter 440. The court noted that “… to establish entitlement to coverage under section 440.093 (2), claimant must prove by clear and convincing medical evidence by a licensed psychiatrist that his psychiatric condition was a manifestation of the chronic pain that resulted from the physical injuries he sustained in his work accident, and that the work accidents are the major contributing cause of the manifestation and need for treatment..”
  • McIntosh v. CVS Pharmacy,  ____ So.3d____, opinion filed 4/22/14:
  1. Facts

The claimant, a pharmacist, was at work on 10/19/10 when an armed robber entered the store. Claimant was six months pregnant at the time the gunman ordered claimant to get down on the floor. Claimant attempted to flee, and in so doing, fell, landing on her stomach. The JCC found the claimant sustained a compensable physical injury to her right knee, albeit a minor one, at the time of the accident for which claimant received treatment at an emergency room on the date of the accident. The JCC also found the claimant was subsequently diagnosed with PTSD by a psychiatrist authorized by the carrier. The JCC found the doctor had causally related the PTSD to the events occurring on the date of the accident, not to any physical injury suffered on that date.

Conclusion

The court concluded that section 440.093(2) is not applicable because the relevant mental or nervous injury did not occur as a manifestation of an injury compensable under this chapter. The court concluded that the situation in the instant case most closely paralleled the second sentence in section 440.093 (1), (since the evidence suggested a separate mental or nervous injury occurred at the same time as the physical injury requiring medical treatment).  Consequently, the DCA concluded that the JCC erred in denying compensability of the claimant’s PTSD based on the finding that no competent, substantial evidence establish that the PTSD was the natural are unavoidable result of claimant’s minor physical injuries treated at the emergency room on October 19, 2010.

The Tampa work injury lawyers at Christopher J. Smith, P.A. have extensive experience with workers’ compensation claims. Call today to schedule your free case evaluation if you need help or guidance with your workers’ compensation claim. 

-This excerpt was taken from the written materials prepared by Christopher J. Smith for his presentation at the Workers’ Compensation Forum scheduled next week on this topic.