Florida Employee Awarded PTD Benefits 17 Years After Retirement

In a case in which the original work-related injury occurred two decades before the appellate decision, a Florida appellate court held that a JCC erred in focusing on a claimant's retirement date, as well as her age and disability status at that time, in finding that the claimant did not qualify for PTD benefits [Pannell v. Escambia County Sch. Dist., 2020 Fla. App. LEXIS 5114 (1st DCA April 15, 2020)]. Rather, the relevant date for determining whether a claimant qualified for PTD was either the date of overall MMI or at the expiration of her entitlement to temporary benefits, whichever occurred first.

Under the facts of the case, therefore, the court held the claimant met the relevant "catastrophic injury test" and the burden shifted to the employer to offer conclusive proof of substantial earning capacity, which it had failed to do. The court reversed the JCC's decision and remanded for an order finding claimant was entitled to PTD benefits effective December 31, 2004, the date on which her TTD benefits had been exhausted.

Background

It was stipulated that claimant sustained compensable injuries to her neck, back, and right shoulder some 20 years ago. The employer/carrier ("E/C") further stipulated that claimant suffered a psychiatric injury, in the form of depression, as a result of the work-related accident. The E/C provided medical care through the date of the final hearing, which occurred in April 2018. Claimant previously successfully petitioned for disability retirement via the Florida Retirement System in June 2003, listing conditions that pre-existed her workplace injuries. Upon retirement, Claimant was forty-nine years old.

The Westphall Decision

The E/C ceased paying TTD in January 2002, when Claimant had exhausted her 104 weeks of eligibility for those benefits. At that, however, claimant had not reached MMI. In 2017, 14 years after claimant retired, the Florida Supreme Court handed down its landmark decision in Westphal v. City of St. Petersburg, 194 So. 3d 311 (Fla. 2016). Pursuant to Westphal, the E/C paid additional TTD benefits for the period February 20, 2002, through April 9, 2003. Although assigned permanent impairment ratings for some of her injuries in 2003, Claimant did not reach overall MMI until May 27, 2011. Nevertheless, the JCC found that the parties agreed Claimant would have reached "statutory MMI based upon 260 weeks of [TTD] benefits being exhausted" as of December 30, 2004.

Claimant Seeks Additional Benefits

In 2017, the 62-year-old claimant filed petitions for benefits seeking, inter alia, TTD benefits from January 1, 2002, and PTD benefits from November 10, 2004 (as amended at the final hearing). The JCC ultimately awarded TTD from April 10, 2003, through December 30, 2004 (resulting in claimant receiving 260 weeks of TTD), but denied all PTD benefits.

The JCC's Decision

The JCC ruled that the 1999 version of § 440.15(1), Fla. Stat. applied to claimant's petition, indicating that entitlement to PTD benefits required that claimant prove she suffered from a "catastrophic injury" as defined in § 440.02(34)(f), Fla. Stat. That determination, in turn, depended upon a five-step analysis set forth in Butler v. City of Jacksonville, 980 So. 2d 1250 (Fla. 1st DCA 2008). The JCC ruled that claimant had failed to satisfy the fifth condition: based on claimant's age, education, and work experience, could claimant perform other similar work found in significant numbers in the national economy?

The JCC's Rationale

The JCC indicated that timing was of "particular importance with regards to step 5" [1st DCA's opinion, p. 4]. Relying on vocational experts, the JCC said that when claimant retired in 2003 for reasons totally unrelated to the industrial accident and the injuries sustained therein, she was employable and not disabled. The JCC found, therefore, that claimant was not disabled in 2003 when she retired and that her retirement severed the causal connection between the industrial accident and claimant's entitlement to permanent and total disability benefits.

First DCA's Decision

The appellate court disagreed with the rationale employed by the JCC, indicating it was error to focus on claimant's retirement date, as well as her age and disability status at that time, because the relevant date for determining whether a claimant qualified for PTD was the date of either overall MMI or at the expiration of her entitlement to temporary benefits, whichever occurred first.

Here, claimant exhausted her entitlement to temporary benefits as of December 30, 2004, well before she reached overall MMI in 2011. Despite finding that both vocational experts testified claimant would qualify as disabled on May 4, 2002, under the statutorily mandated social security standards, the court said the JCC denied PTD benefits based, in part, on the "mere passage of time and claimant simply reaching the age of 50."

The appellate court concluded that because claimant was disabled based on the five-step sequential analysis on December 30, 2004, the date on which all TTD benefits were exhausted, and remained so on May 27, 2011, when she reached overall MMI, she met the "catastrophic injury test," and the burden shifted to the E/C to offer conclusive proof of a substantial earning capacity. By using her retirement date as the central component to determine whether the Claimant was entitled to PTD, the JCC committed legal error.