BLAKE v. MERCK, No. 1D09-5464.
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | PER CURIAM. |
| Citation | 43 So.3d 882 |
| Parties | Nancy BLAKE, Appellant, v. MERCK & COMPANY, INCORPORATED/SPECIALTY RISK SERVICES, Appellees. |
| Decision Date | 07 September 2010 |
| Docket Number | No. 1D09-5464. |
43 So.3d 882
Nancy BLAKE, Appellant,
v.
MERCK & COMPANY, INCORPORATED/SPECIALTY RISK SERVICES, Appellees.
No. 1D09-5464.
District Court of Appeal of Florida, First District.
September 7, 2010.
Bill McCabe of Shepherd, McCabe & Cooley, Longwood, and Michael D. Rudolph, Jacksonville, for Appellant.
Mary L. Wakeman of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Appellees.
PER CURIAM.
In this workers' compensation case, Claimant seeks review of an order denying a claim for permanent total disability (PTD) benefits, attorney's fees, and costs. We reverse because the Judge of Compensation
Claims (JCC) used an incorrect legal standard in denying PTD benefits.
The JCC denied the claim based on the erroneous assumption that, absent medical evidence of complete inability to work, a claimant is not entitled to PTD benefits without first performing a job search. The JCC stated in the final order:
The employee must establish that she is not able to engage in at least sedentary employment, within a 50 mile radius of her residence, due to her physical limitations. I interpret this to mean that, regardless of all vocational expert opinions, the burden rests on the shoulders of the injured employee to at least make a reasonable effort to secure employment if the evidence does not show her to be totally medically disabled. That the claimant here failed/refused to do a job search or to check any jobs made available to her negates an award of permanent total disability.*
Claimant was injured on February 20, 2004. As we noted in Garcia v. Fence Masters, Inc., 16 So.3d 200, 202 (Fla. 1st DCA 2009), for injuries occurring on or after October 1, 2003, the JCC must "consider not only physical restrictions, but also the vocational restrictions, if any, imposed on the individual seeking benefits." See also Ferrell Gas v. Childers, 982 So.2d 36 (Fla. 1st DCA 2008); Wal-Mart Stores, Inc. v. Thompson, 974 So.2d 516, 517 (Fla. 1st DCA 2008). In Commercial Carrier Corp. v. LaPointe, 723 So.2d 912, 916-17 (Fla. 1st DCA 1999), we recognized 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...
To continue reading
Request your trial
-
Rocha v. City of Tampa, No. 1D11–6261.
...use of medical work restrictions to prove disability for other purposes under the Workers' Compensation Law. Cf. Blake v. Merck & Co., 43 So.3d 882 (Fla. 1st DCA 2010) (permanent total disability); Arnold v. Fla.'s Blood Ctrs., Inc., 949 So.2d 242 (Fla. 1st DCA 2007) (temporary partial disa......
-
Rocha v. City of Tampa Commercial Risk Mgmt., CASE NO. 1D11-6261
...use of medical work restrictions to prove disability for other purposes under the Workers' Compensation Law. Cf. Blake v. Merck & Co., 43 So. 3d 882 (Fla. 1st DCA 2010) (permanent total disability); Arnold v. Fla.'s Blood Ctrs., Inc., 949 So. 2d 242 (Fla. 1st DCA 2007) (temporary partial di......
-
Martinez v. Lake Park Auto Brokers Inc., No. 1D10–4395.
...disabling, preclude Claimant from engaging in at least sedentary employment when combined with vocational factors.Blake v. Merck & Co., 43 So.3d 882, 883 (Fla. 1st DCA 2010) (emphasis added). Here, the JCC found Claimant's job search “does not establish that his inability to secure at least......
-
14TH v. TERHAAR, No. 1D09-0169.
...Ward; though it received some distribution from the bankruptcy estate, Terhaar was not able to recover the outstanding balance in 43 So.3d 882 full. While it is also undisputed that Heinberg subsequently leased the property as improved at a higher rental rate than it leased the property to ......
-
Rocha v. City of Tampa, 1D11–6261.
...use of medical work restrictions to prove disability for other purposes under the Workers' Compensation Law. Cf. Blake v. Merck & Co., 43 So.3d 882 (Fla. 1st DCA 2010) (permanent total disability); Arnold v. Fla.'s Blood Ctrs., Inc., 949 So.2d 242 (Fla. 1st DCA 2007) (temporary partial disa......
-
Rocha v. City of Tampa Commercial Risk Mgmt., CASE NO. 1D11-6261
...use of medical work restrictions to prove disability for other purposes under the Workers' Compensation Law. Cf. Blake v. Merck & Co., 43 So. 3d 882 (Fla. 1st DCA 2010) (permanent total disability); Arnold v. Fla.'s Blood Ctrs., Inc., 949 So. 2d 242 (Fla. 1st DCA 2007) (temporary partial di......
-
Martinez v. Lake Park Auto Brokers Inc., 1D10–4395.
...disabling, preclude Claimant from engaging in at least sedentary employment when combined with vocational factors.Blake v. Merck & Co., 43 So.3d 882, 883 (Fla. 1st DCA 2010) (emphasis added). Here, the JCC found Claimant's job search “does not establish that his inability to secure at least......
-
14TH v. TERHAAR, 1D09-0169.
...Ward; though it received some distribution from the bankruptcy estate, Terhaar was not able to recover the outstanding balance in 43 So.3d 882 full. While it is also undisputed that Heinberg subsequently leased the property as improved at a higher rental rate than it leased the property to ......