FIRST DISTRICT COURT OF APPEALS UPHOLDS AWARD OF PERMANENT TOTAL DISABILITY BENEFITS BECAUSE NO WORK WITHIN 50 MILES

By Mary Ann Stiles

The first reported appellate opinion applying the current version of section 440.15(1) Florida Statutes upheld an award of permanent total disability (“PTD”) benefits because the claimant’s vocational expert’s unrebutted testimony was that there were no jobs the claimant could perform within 50 miles of her residence. In Wal-Mart Stores, Inc. v Thompson, Case No. 1D07-2661 (February 6, 2008), the First District Court of Appeals affirmed the award of PTD benefits.

The claimant was injured on October 7, 2005 and received a five percent permanent impairment rating. She had a vocational rehabilitation expert testify the claimant’s injuries and limitations excluded her from all jobs that were within a 50-mile radius of her residence. Since there was no vocational evidence to the contrary, the judge of compensation claims awarded PTD benefits.

In his ruling, the judge expressed frustration at having to find the claimant to be permanently and totally disabled, given the fact she was 52 years old; had worked for the employer for several months after the accident; had been released to work with no repetitive lifting and no lifting over five pounds; and had made no effort to look for work for 15 months following quitting her job.

The court’s affirmance of the judge’s award of PTD benefits means that cases seeking such benefits under the current statute will need testimony about the ability of a claimant to return to work and the overall job market, as well as evidence about employment within the statutory limit. There may be areas in Florida that application of the 50-mile provision could result in limited employment opportunities for employees with certain limitations.