by Brenda Martinez Richardson and Tracey Wilkerson
What is PTD (Permanent Total Disability)?
Permanent total disability (PTD) is the compensation for disability that may be paid to Florida’s injured workers post-MMI (maximum medical improvement). Claimants need to have become permanently and totally disabled, as defined under the Florida Workers’ Compensation Act, section 440, Fla. Stat. To be considered for PTD benefits, claimants must have one or more “catastrophic injuries” and must be unable to engage in at least sedentary employment within a 50-mile radius of their home.
3 Options to Prove PTD Benefits
Blake v. Merck & Company, Inc./Specialty Risk Services, 43 So.3d 882 (Fla. 1st DCA 2010), identifies three options, one of which a claimant must use to prove PTD benefits. Under this standard, the claimant must present evidence of one of the following: (1) permanent medical incapacity to engage in at least sedentary employment within a 50-mile radius of the injured worker’s residence due to physical limitation; (2) permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search; or (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.
The second option refers to demonstrating the concept that an exhaustive but unsuccessful job search proves an inability to obtain gainful employment. Vocational rehabilitation professionals usually analyze employability as part of vocational evaluations in marital dissolution, personal injury, and workers’ compensation cases. They may be asked to evaluate if the injured worker has conducted a reasonable job search. The definition of what constitutes a reasonable job search may vary depending on the type of jurisdiction, for example, state workers’ compensation, personal injury, and discrimination or employment law (Stewart & Turner, 2014). Another consideration is that there are limited published resources to assist in objectively evaluating an injured worker’s job search.
In Georgia Pacific Corp. v. Taplin, 586 So.2d 823 (Miss. 1991), the Supreme Court of Mississippi “found that the claimant did sustain an injury leading to a disability which has diminished his wage-earning capacity, and that he has reasonably attempted to find employment.” In Watson v. Wal-Mart Associates, 30 A.3d 775 (Del. 2011), the Supreme Court of Delaware noted that the claimant must demonstrate that he is a displaced worker by showing that he “… made reasonable efforts to secure suitable employment which have been unsuccessful because of the injury.” The court also noted, “To rebut such a showing, the employer must establish the availability of regular employment within the [claimant’s] capabilities.” In Rasimas v. Michigan Department of Mental Health, 714 F.2d 614, 62728 & n.13 (6th Cir. 1983), the court noted that “(1) there were substantially equivalent positions which were available; and 2) the claimant failed to use reasonable care and diligence in seeking such positions.” The court also noted, “A claimant is only required to make reasonable efforts to mitigate damages, and is not held to the highest standards of diligence. The claimant’s burden is not onerous, and does not require him to be successful in mitigation.”
How are Job Searches Defined?
According to the U.S. Bureau of Labor Statistics (BLS), active job search methods are defined as “those that have the potential to result in a job offer without any further action on the part of the job seeker” (BLS, 2021). This includes direct employer contact, submitting applications or resumes, having a job interview, using an employment agency or job recruiter, or seeking assistance from friends, relatives, or via social networks. Passive job search methods include looking at job postings but not applying or taking courses. For Census Bureau survey purposes, an unemployed worker who does not perform an active job search is considered “not in the labor force” (BLS, 2021).
According to the U.S. Equal Employment Opportunity Commission (EEOC), the definition of job applicant is the following: “In order for an individual to be an applicant in the context of the Internet and related electronic data processing technologies, the following must have occurred: the employer has acted to fill a particular position; the individual has followed the employer’s standard procedures for submitting applications; and the individual has indicated an interest in the particular position” (2004).
Analysis and Research to Identify Realistic Job Goals
Stewart and Turner (2014) point out that these definitions are important since injured workers who cannot meet these definitions will probably have difficulty demonstrating they have made an exhaustive but unsuccessful job search. While these definitions are helpful, they do not encompass all aspects of what would be considered a good-faith job search. Vocational rehabilitation professionals have experience performing transferability of skills analysis and labor market research to identify realistic job goals for an injured worker. They utilize data from sources including the Dictionary of Occupational Titles (DOT), BLS, and the Occupational Information Network (O*NET) to classify past work skills and then link those skills with other jobs. They also provide job placement services including resume preparation, interview training, and job searches. Unfortunately, most injured workers do not have the skills needed for an adequate job search. This may lead to attorneys providing vocational counseling to claimants.
A successful job search requires time, organization, and focus. The job search process has various components, which may be carried out simultaneously. An injured worker who performs the activities that are proven to be effective in job searches will be able to demonstrate a good-faith job search. The first step is clarifying vocational and physical capacities. Injured workers must identify return-to-work goals within their vocational and physical abilities. “Careful scrutiny needs to be given to whether the injured worker is seeking jobs within his/her permanent restrictions and/or whether the injured worker is capable of performing these jobs from an educational, vocational, or experience perspective” (McGory, 2017). Injured workers should not apply for job openings that are outside of actual vocational and physical capacities. If they do, it can be challenging to show the rejection was based on the work-related physical restrictions. Another important step is to determine the proper geographic area and occupational targets (National Career Development Association (NCDA), 2015). Decide on a general geographic area and identify employers with job openings. Directly contact employers with job listings to gather information and solicit an interview. Utilize internet resources including Glassdoor, CareerBuilder, Monster, Indeed, Simply Hired, or other job board sites where injured workers can explore job openings and post resumes. In addition to internet searches, injured workers should be aware of the “hidden job market” of jobs that are never posted online. Up to 85% of job opportunities are in the hidden job market, which is best accessed via personal and professional relationships, opportunistic networks, and electronic/online networks (NCDA, 2015). Other avenues for a dedicated job seeker are agency assistance, state vocational rehabilitation, job fairs, job placement centers, and vocational counselors.
Preparing for Interview Questions and Review
Claimants should develop a master resume and cover letter, as well as prepare responses to interview questions. They should be prepared to answer questions regarding their professional background, qualifications, motivation, and organizational and field knowledge (NCDA, 2015). It is important to emphasize abilities as opposed to disabilities. Job seekers must accentuate their current skills and talents. They can increase their chance of success by responding truthfully and genuinely to an employer’s questions while framing their answers in a way that addresses the employer’s concerns (NCDA, 2015). They must follow up on contacts and referrals, follow up with each employer in receipt of an application, follow up with appropriate thank you letters immediately following interviews, and continue to search for opportunities as they arise (NCDA, 2015). While there is not a definitive amount of time, injured workers should consistently job search over an extended period of time. In H.S. Camp & Sons v. Flynn, 450 So.2d 577, 579 (Fla. 1st DCA 1984), the court characterized as “lengthy and exhaustive” the claimant’s job search, which consisted of “approximately 300 initial contacts of employers,” “many return calls and return visits to the same employers,” and proved “completely unsuccessful throughout the three years since injury in spite of services from three vocational rehabilitation or placement experts.”
Keeping Records are Critical
Tracking job-seeking actions and keeping records are critical. It is essential to evaluate efforts on an ongoing basis and to respond to any inquiries, job offers, or rejections. Record keeping does not have to be complicated; it enables job seekers to ensure they make the best use of their time, keep careful records, be more efficient, avoid redundancy, and monitor progress (Stewart & Turner, 2014). Injured workers should keep all employer contact information such as website, address, phone number, email, and departmental or specific contact information. Information from each job listing including date posted, date application submitted, essential functions/responsibilities, experience/qualifications, and physical requirements should be retained.
Job Search Evaluation Scale
Stewart and Turner (2014) recommend the Job Search Evaluation Scale to methodically evaluate these six major components of a successful job search effort in comparison to the actual activities reported:
(1) number of hours spent in job search efforts each week and whether or not the claimant has an established schedule for conducting job search activities; (2) percent of the evaluee’s effort that has been done in person versus online job applications; (3) tapping into the resources of agencies whose purpose is to assist persons in obtaining employment such as the state job service, state vocational rehabilitation, private job placement agencies, and professional recruiters; (4) the number of informational calls and/ or interviews conducted by the evaluee; (5) organized use of records of past job search activities to increase effectiveness of the ongoing job search; and (6) documentation of follow-up efforts with employer representatives at companies where the evaluee has made previous contact.
There is no one definition, methodology, statute, or regulation to assess if job search efforts are adequate and reasonable. An injured worker’s efforts will likely be examined to establish the reasonableness of the job search through the injured worker’s own testimony, records kept during the job search, and any correspondence from prospective employers. Outlining the steps of a successful job search can pinpoint activities that demonstrate if an injured worker’s job search was focused, organized, suitable, and dedicated. Attorneys often must tell their clients to be engaged in job search activities. The strategies in this article can facilitate meaningful discussion between the attorney and the client.
Blake v. Merck & Co., 43 So. 3d 882 (District Court of Appeal of Florida, First District September 7, 2010).
Georgia Pacific Corp. v. Taplin, 586 So.2d 823 (Supreme Court of Mississippi 1991).
HS Camp & Sons v. Flynn, 450 So. 2d 577 (Fla. Dist. Ct. App. 1984).
McGory, S. (2017, June 29). Permanent Total Disability 101. Retrieved from Cristal Law Group: https://www.cristallawgroup.com/Blog/2017/June/Permanent-Total-Disability-101.aspx
National Career Development Association (NCDA). (2015). Job Seeking and Employability Skills. Broken Arrow: NCDA.
Rasimas v. Michigan Department of Mental Health, 714 F.2d 614, 627-28 (6th Circuit 1983).
Stewart, D. E., & Turner, D. V. (2014). What is a Reasonable Job Search? Developing a Theoretical Framework. The Rehabilitation Professional, 22(4), 223-230.
U.S. Bureau of Labor Statistics (BLS). (2021, January 27). Concepts and Definitions. Retrieved from Labor Force Statistics from the Current Population SurveyPRINT:Print: https://www.bls.gov/cps/definitions.htm#nilf
U.S. Equal Employment Opportunity Commission (EEOC). (2004, March 03). Retrieved from Recordkeeping Guidance Clarifies Definition of “Job Applicant” for Internet and Related Technologies: https://www.eeoc.gov/newsroom/recordkeeping-guidance-clarifies-definition-job-applicant-internet-and-related-0
Watson v. Wal-Mart Associates, 30 A.3d 775 (Supreme Court of Delaware 2011).