The New Permanent Total Disability Standard in Florida Workers’ Compensation Cases: A Framework for Evaluating Capability to Engage in Sedentary Employment
As of October 1, 2003, the significant issue for discussion in permanent total disability (PTD) cases will not be whether a claimant is capable of uninterrupted light work, or whether the claimant has conducted a lengthy and exhaustive but unsuccessful work search, or whether the claimant suffers from a physical/mental condition that meets or equals a Social Security listing, or whether there are a significant number of jobs in the national economy for him or her. The significant issue now will be whether the employer/carrier can prove that the employee is physically capable of engaging in at least sedentary employment within a 50-mile radius of the employee’s residence.
This analysis will necessarily center around the very specific definition of sedentary work and the physical demands and strength ratings of such work. This discussion will ultimately lead to litigation as to the capability of an individual’s residual functional capacity to perform a full range of sedentary work. In my opinion, this process will require a very thorough and specific understanding of claimant’s medical restrictions and limitations as well as full and comprehensive study of the vocational significance of such components to determine whether the unskilled sedentary occupational base will be significantly eroded. All of this is presented with an eye toward the ultimate burden of proof: whether claimant retains the residual functional capacity to perform at least sedentary work or less than a full range of sedentary work.
This article is intended to provide Florida workers’ compensation practitioners with a full discussion of the significant and relevant components of sedentary work per the Dictionary of Occupational Titles. Employee and employer/carrier representatives will gain greater knowledge and understanding of these new components to Florida’s workers’ compensation PTD definition.
PTD: The Old Definition
Between 1979 and 1993, loss of both hands, both arms, both legs, or both eyes or any two thereof, or paraplegia or quadriplegia, in the absence of conclusive proof of substantial earning capacity, constituted PTD within Florida’s workers’ compensation scheme. In all other cases, PTD was to be determined in accordance with the facts of the case. F.S. §440.15(1)(1990). Under this statutory language, employees were not required to demonstrate that they were 100 percent physically disabled to claim PTD benefits. Rather, claimants had the burden of establishing that they were incapable of uninterrupted light work because of their limitations, or that they had conducted a lengthy and exhaustive but unsuccessful work search. In determining entitlement to PTD benefits, the courts emphasized a claimant’s age, educational and literacy levels, exertional and skill levels of past work history, transferability of any acquired skills, and the vocational determination as to whether the claimant could be rehabilitated and placed in the job market.
Between 1994 and 2003, only claimants with catastrophic injuries were eligible for PTD benefits; in no other case could PTD be awarded. F.S. §440.15(1) (2000). Catastrophic injury meant a permanent impairment constituted by spinal cord injury involving severe paralysis of an arm, leg, or trunk; amputation of an arm, hand, foot, or leg involving the effective loss of use of that appendage; severe brain or closed-head injury as evidenced by severe sensory or motor disturbances; a severe complex integrated disturbances of cerebral function; second-degree or third-degree burns of 25 percent or more of the body surface or third-degree burns of five percent or more to the face and hands; total or industrial blindness; or any other injury that would otherwise qualify an employee to receive disability income benefits under Title II or supplemental security income benefits under Title XVI of the federal Social Security Act as it existed on July 1, 1992. F.S. §440.02(37)(2000).
PTD: The New Definition
As of October 1, 2003, in case of total disability adjudged to be permanent, 66 2/3 percent of the average weekly wage shall be paid to the employee during the continuance of such total disability. No compensation shall be payable under this section if the employee is engaged in, or is physically capable of engaging in, at least sedentary employment. F.S. §440.15(1)(2003). In the following cases, an 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 employee’s residence: Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk; amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage; severe brain or closed-head injury as evidence by severe sensory or motor disturbances, severe communication disturbances, severe complex integrated disturbances of cerebral function, severe episodic neurological disorders, or other severe brain and closed-head injury conditions; second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of five percent or more to the face and hands; or total industrial blindness. F.S. §440.15 (1)(2003).
In all other cases, in order to obtain permanent total disability benefits, the employee must establish inability to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to his or her physical limitations. Entitlement to such benefits shall cease when the employee reaches age 75, unless the employee is not eligible for Social Security benefits under 42 U.S.C. §402 or §423 because the employee’s compensable injury has prevented the employee from working sufficient quarters to be eligible for such benefits, notwithstanding any age limits. If the accident occurred on or after the employee reaches age 70, benefits shall be payable during the continuance of permanent total disability, not to exceed five years following the determination of permanent total disability. Only claimants with catastrophic injuries or claimants who are incapable of engaging in sedentary employment are eligible for permanent total benefits. In no other case may permanent total disability be awarded. F.S. §440.15(1)(2003).
Defining Physical Demands and Strength Ratings
In order to fully comprehend whether someone can engage in sedentary employment, a discussion of the specific requirements of sedentary work is necessary. The consistent and trustworthy source for such information is the Dictionary of Occupational Titles (DOT), published by the U.S. Department of Labor, analyzing more than 20,000 occupations nationwide. Per the DOT, all occupations are defined by physical demands and strength ratings. The physical demands/strength rating reflects the estimated overall physical and strength requirements of all jobs, expressed in terms which are considered to be important for average, successful work performance. The strength ratings are expressed by one of five terms: sedentary, light, medium, heavy, and very heavy. The physical demands are expressed in categories of: lifting/carrying, pushing/pulling, standing/walking, and sitting.
• Physical Demands
As defined by the DOT, in order to determine physical demands, an evaluation is made of the worker’s involvement in the following activities:
1) Lifting/carrying: Raising or lowering an object from one level to another (includes upward pulling); transporting an object, usually holding it in the hands or arms, or on the shoulders.
2) Pushing/pulling: Exerting force upon an object so that the object moves away from the force (includes slapping, striking, kicking, and treadle actions); Exerting force upon an object so that the object moves toward the force (includes jerking).
3) Standing/walking: Remaining on one’s feet in an upright position at a station without moving about; moving about on foot.
4) Sitting: Remaining in a seated position.
Lifting, pushing, and pulling are evaluated in terms of both intensity and duration. Consideration is given to the weight handled, position of the worker’s body, and the aid given by helpers or mechanical equipment. Carrying most often is evaluated in terms of duration, weight carried, and distance carried. Controls entail the use of one or both arms or hands (hand/arm) and/or one or both feet or legs (foot/leg) to move controls on machinery or equipment. Controls include but are not limited to buttons, knobs, pedals, levers, and cranks.
• Strength Ratings
Estimating the strength factor rating for an occupation requires the exercise of care on the part of occupational analysts in evaluating the force and physical effort a worker must exert. For instance, if the worker is in a crouching position, it may be more difficult to push an object than if pushed at waist height. Also, if the worker is required to lift and carry continuously or push and pull objects over long distances, the worker may exert as much physical effort as is required to similarly move objects twice as heavy, but less frequently and/or over shorter distances.
As defined by the DOT, the following are descriptions of the five terms in which the strength factors are expressed:
1) Very heavy work: Exerting in excess of 100 pounds of force occasionally, and/or in excess of 50 pounds of force frequently, and/or in excess of 20 pounds of force constantly to move objects. Physical demand requirements are in excess of those for heavy work.
2) Heavy work: Exerting 50 to 100 pounds of force occasionally, and/or 25 to 50 pounds of force frequently, and/or 10 to 20 pounds of force constantly to move objects. Physical demand requirements are in excess of those for medium work.
3) Medium work: Exerting 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently, and/or greater than negligible up to 10 pounds of force constantly to move objects. Physical demand requirements are in excess of those for light work.
4) Light work: Exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly (Constantly: activity or condition exists two thirds or more of the time) to move objects. Physical demand requirements are in excess of those for sedentary work. Even though the weight lifted may be only a negligible amount, a job should be rated light work: a) when it requires walking or standing to a significant degree; or b) when it requires sitting most of the time but entails pushing and/or pulling or arm or leg controls; and/or c) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials event though the weight of those materials is negligible. Note: The constant stress and strain of maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a worker even though the amount of force exerted is negligible.
5) Sedentary work: Exerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to one third of the time) and/or a negligible amount of force frequently (Frequently: activity or condition exists from one third to two thirds of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.
Evaluating Ability of Full Range of Sedentary Work
The ability to perform the full range of sedentary work requires the ability to lift no more than 10 pounds at a time and occasionally to lift or carry articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one that involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally. Occasionally means occurring from very little up to one third of the time, and would generally total no more than about two hours of an eight-hour workday. Sitting would generally total about six hours of an eight-hour workday. Unskilled sedentary work also involves other activities, classified as nonexertional, such as balancing, kneeling, crouching, crawling, bilateral manual dexterity, seeing and understanding, remembering, and carrying out simple instructions.
A full range of sedentary work includes all or substantially all of the approximately 200 skilled and unskilled sedentary occupations found in the DOT. An erosion of the sedentary occupational base takes place when any one of an individual’s exertional capacities is determined to be less than that required to perform a full range of sedentary work or the individual also has nonexertional limitations that narrows the potential range of sedentary work to which he or she might be able to adjust. When there is a reduction in an individual’s exertional or nonexertional capacity so that he or she is unable to perform all components of sedentary work the individual will be unable to perform the full range of sedentary work as the occupational base will be eroded by the additional limitations or restrictions.
Exertional capacity addresses an individual’s limitations and restrictions of physical strength and defines the individual’s remaining ability to perform each of seven strength demand: sitting, standing, walking, lifting, carrying, pushing, and pulling. An exertional limitation is an impairment-caused limitation of any one of these activities. Nonexertional capacity considers any work-related limitations and restrictions that are not exertional. Therefore, a nonexertional limitation is an impairment-caused limitation affecting such capacities as mental abilities, vision, hearing, speech, climbing, balancing, stooping, kneeling, crouching, crawling, reaching, handling, fingering, and feeling. Environmental restrictions are also considered to be nonexertional.
Thus, it is the nature of an individual’s limitations and restrictions, not certain impairments or symptoms, that determines whether the individual will be found to have only exertional limitations or restrictions, only nonexertional limitations or restrictions, or a combination of exertional and nonexertional limitations or restrictions. Once determined, whether the individual will be able to make an adjustment to other work requires adjudicative judgment regarding factors such as the type and extent of the individual’s limitations or restrictions and the extent of the erosion of the occupational base; i.e., the impact of the limitations or restrictions on the number of sedentary unskilled occupations or the total number of jobs to which the individual may be able to adjust, considering his or her age, education and work experience, including any transferable skills or education providing for direct entry into skilled work.
Evaluating Ability of LessThan Full Range of Sedentary Work
An accurate accounting of an individual’s abilities, limitations, and restrictions are necessary to determine the extent of erosion of the occupational base, the types of sedentary occupations an individual might still be able to do, and whether it will be necessary to make use of a vocational expert. Following are the exertional and nonexertional limitations and restrictions that must be evaluated in order to determine an individual’s ability to perform a full range of sedentary work or to determine that the sedentary occupational base is significantly eroded.
• Exertional Limitations and Restrictions
1) Lifting/carrying: If an individual is unable to lift 10 pounds or occasionally lift and carry items like docket files, ledgers, and small tools throughout the workday, the unskilled sedentary occupational base will be significantly eroded. The extent of erosion will depend on the extent of the limitations. For example, if it can be determined that the individual has an ability to lift or carry slightly less than 10 pounds, with no other limitations or restrictions on the ability to perform the requirements of sedentary work, the unskilled sedentary occupational base would not be significantly eroded; however, an inability to lift or carry more than one to three pounds would erode the unskilled sedentary occupational base significantly.
2) Pushing/pulling: Limitations or restrictions on the ability to push or pull will generally have little effect on the unskilled sedentary occupational base.
3) Standing and walking: The full range of sedentary work requires that an individual be able to stand and walk for a total of approximately two hours during an eight-hour workday. If an individual can stand and walk for total of slightly less than two hours per eight-hour workday, this, by itself, would not cause the occupational base to be significantly eroded. Conversely, a limitation to standing and walking for a total of only a few minutes to an hour during the workday would erode the unskilled sedentary occupational base significantly.
4) Sitting: In order to perform a full range of sedentary work, an individual must be able to remain in a seated position for approximately six hours of an eight-hour workday, with a morning break, a lunch period, and an afternoon break at approximately two-hour intervals. If an individual is unable to sit for a total of six hours in an eight-hour workday, the unskilled sedentary occupational base will be significantly eroded.
5) Alternate sitting and standing: An individual may need to alternate the required sitting of sedentary work by standing (and, possibly, walking) periodically. Where this need cannot be accommodated by scheduled breaks and a lunch period, the occupational base for a full range of unskilled sedentary work will be significantly eroded. The extent of the erosion will depend on the facts in the case, such as the frequency of the need to alternate sitting and standing and the length of time needed to stand. Therefore, the residual functional capacity assessment must be specific as to the frequency of the individual’s need to alternate sitting and standing.
6) Medically required hand-held assistive device: To find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information). For example, if a medically required hand-held assistive device is needed only for prolonged ambulation, walking on uneven terrain, or ascending or descending slopes, the unskilled sedentary occupational base will not ordinarily be significantly eroded. On the other hand, the occupational base for an individual who must use such a device for balance because of significant involvement of both lower extremities may be significantly eroded.
• Nonexertional Limitations and Restrictions
1) Postural limitations: Postural limitations or restrictions related to such activities as climbing, balancing, kneeling, crouching, or crawling would not usually significantly erode the occupational base for a full range of unskilled sedentary work because those activities are not usually required in sedentary work. However, if an individual is limited in balancing even when standing or walking on level terrain, there may be a significant erosion of the unskilled sedentary occupational base. It is important to state in the residual functional capability assessment what is meant by limited balancing in order to determine the remaining occupational base. An ability to stoop occasionally, i.e., from very little up to one third of the time, is required in most unskilled sedentary occupations. A complete inability to stoop would significantly erode the unskilled sedentary occupational base but restriction to occasional stooping should, by itself, only minimally erode the unskilled occupational base of sedentary work.
2) Manipulative limitations: Most unskilled sedentary jobs require good use of both hands and the fingers, i.e., bilateral manual dexterity. Fine movements of small objects require use of the fingers, e.g., to pick or pinch. Most unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions. Any significant manipulative limitation of an individual’s ability to handle and work with small objects with both hands will result in a significant erosion of the unskilled sedentary occupational base. However, the ability to feel the size, shape, temperature, or texture of an object by the fingertips is a function required in very few jobs and impairment of this ability would not, by itself, significantly erode the unskilled sedentary occupational base.
3) Visual limitations or restrictions: Most sedentary unskilled occupations require working with small objects. If a visual limitation prevents an individual from seeing the small objects involved in most sedentary unskilled work, or if an individual is not able to avoid ordinary hazards in the workplace, such as boxes on the floor, doors ajar, or approaching people or vehicles, there will be a significant erosion of the sedentary occupational base.
4) Communicative limitations: Basic communication is all that is needed to do unskilled work. The ability to hear and understand simple oral instructions or to communicate simple information is sufficient. If the individual retains these basic communication abilities, the unskilled sedentary occupational base would not be significantly eroded in these areas.
5) Environmental restrictions: An environmental restriction is an impairment-caused need to avoid an environmental condition in a workplace. In general, few occupations in the unskilled sedentary occupational base require work in environments with extreme cold, extreme heat, wetness, humidity, vibration, or unusual hazards. They include: moving mechanical parts of equipment, tools, or machinery; electrical shock; working in high, exposed places; exposure to radiation; working with explosives; and exposure to toxic, caustic chemicals. Even a need to avoid all exposure to these conditions would not, by itself, result in a significant erosion of the sedentary occupational base. Since all work environments entail some level of noise, restrictions on the ability to work in a noisy workplace must be evaluated on an individual basis. The unskilled sedentary occupational base may be significantly eroded depending on the facts in the case record. Restrictions to avoid exposure to odors or dust must also be evaluated on an individual basis. The residual functional capacity assessment must specify which environments are restricted and state the extent of the restriction, e.g., whether only excessive or even small amounts of dust must be avoided.
6) Mental limitations or restrictions: A substantial loss of ability to meet any one of several basic work-related activities on a sustained basis (i.e., eight hours a day, five days a week, or an equivalent work schedule), will substantially erode the unskilled sedentary occupational base. These mental activities are generally required by competitive, remunerative, unskilled work: understanding, remembering, and carrying out simple instructions. Making judgments that are commensurate with the functions of unskilled work—i.e., simple work-related decisions. Responding appropriately to supervision, coworkers and usual work situations. A loss of ability to perform any of the above-basic work activities will significantly erode the unskilled sedentary occupational base.
Florida workers’ compensation practitioners need awareness, knowledge, and understanding of the various components of sedentary work. This article offers a beginning analysis of the physical demands, strength ratings, and exertional /nonexertional restrictions and limitations that play a significant role in the ultimate determination as to whether an employee’s ability to perform a full range of sedentary work has been affected. Along with vocational expert guidance, this article will help practitioners to better evaluate and determine whether the unskilled sedentary occupational base has been significantly eroded.
Rafael Gonzalez is a partner in the firm of Barrs, Williamson, Stolberg, Townsend and Gonzalez, P.A., Tampa, where he practices workers’ compensation and Social Security disability law. He earned a B.S. from the University of Florida in 1987 and a J.D. from Florida State University College of Law in 1990. Mr. Gonzalez is past chair of The Florida Bar Workers’ Compensation Section and is chair-elect of The Florida Bar Practice Management and Development Section.
This column is submitted on behalf of the Workers’ Compensation Section, Dennis D. Smejkal, chair, and Pamela L. Foels, editor.