There are two types of temporary indemnity benefits, Temporary Total Disability (TTD) and Temporary Partial Disability (TPD). Section 440.15(2)(a) describes TTD as being a “disability total in quality but temporary in quality….,” while TPD, described in section 440.15(4)(a), is the monetary benefit paid when the person’s disability is less than total, meaning the injured employee is capable of performing some type of physical work activity.

TTD is paid at 2/3 of the injured employee’s average weekly wage (AWW), while TPD is “80 percent of the difference between 80 percent of the employee’s average weekly wage and the salary, wages, and other remuneration the employee is able to earn postinjury….” For example, if AWW is $1,000, the TTD and TPD payments are $666.70 and $640.00, respectively. The good news is that workers’ compensation indemnity benefits are not taxable.

Temporary indemnity benefits end once the injured employee is placed at maximum medical improvement (MMI), defined in 440.02(10) as follows: “‘Date of maximum medical improvement’ means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.” (Temporary benefits also end as a matter of law after 260 weeks of payments. Typically, MMI is reached well before 260 weeks, or 5 years, of temporary payments are made.)

Fights often ensue over disability status, partial and total, and MMI. Because the insurance carriers get to select the treating doctors, those handpicked doctors typically offer opinions in these areas, among others, that are helpful to the carriers. While there are ways to fight back, the options are limited by the system’s decided slant in favor of employers and carriers on most points.

Once MMI is reached, injured employees may be entitled to two types of monetary benefits: Permanent Impairment Benefits (PI)(440.15(3)) and Permanent Total Disability Benefits (PTD)(440.15(1)).

Permanent Impairment benefits are payable after MMI where the employee is left with a permanent impairment rating. “Permanent impairment” is defined in 440.02(31) as: “any anatomic or functional abnormality or loss determined as a percentage of the body as a whole, existing after the date of maximum medical improvement, which results from the injury.” The impairment rating is determined in accordance with the Florida Impairment Guide. The amount payable is based on a formula contained in the statute. Typically, it is a small amount of money for a short period of time. Not every injured worker is assigned a permanent impairment rating.

PTD pays more over a longer period of time. Except in cases with catastrophic injuries, it can be difficult to qualify for PTD. In most cases, the entitlement to PTD ceases when the employee reaches age 75.

There are two statutorily defined ways to qualify for PTD benefits. The first is by sustaining one or more of these presumptively qualifying injuries:

1. Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;
2. Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;

3. Severe brain or closed-head injury as evidenced by:
a. Severe sensory or motor disturbances;
b. Severe communication disturbances;
c. Severe complex integrated disturbances of cerebral function;
d. Severe episodic neurological disorders; or
e. Other severe brain and closed-head injury conditions at least as severe in nature as any condition provided in sub-subparagraphs a.-d.;

4. Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of 5 percent or more to the face and hands; or
5. Total or industrial blindness.

“In all other cases, in order to obtain permanent total disability benefits, the employee must establish that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to his or her physical limitation.” Section 440.15(1)(b).

It wasn’t always this tough to qualify for PTD.

When our law firm first began handling workers’ compensation cases, the listed injuries, like now, were an option, however, the alternative method of qualifying was decidedly friendlier to injured workers than the current standard. Until 1994, a claimant would qualify for PTD by demonstrating an inability to perform “light duty work uninterruptedly.” The current capacity is sedentary duty, which is harder for claimants to overcome than the light duty standard. The particulars of the various standards are outlined in section 404.1567 of the Code of Federal Regulations:

(a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which 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 and other sedentary criteria are met.

(b) Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.

(c) Medium work. Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.

(d) Heavy work. Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds. If someone can do heavy work, we determine that he or she can also do medium, light, and sedentary work.

(e) Very heavy work. Very heavy work involves lifting objects weighing more than 100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more. If someone can do very heavy work, we determine that he or she can also do heavy, medium, light and sedentary work.

Simply put, an individual is not PTD under current law if he or she can at least perform sedentary work. Before 1994, the standard was light duty. Social Security Disability (SSD), the Florida Retirement System, and most private disability insurance policies adhere to the light duty standard.

In 1994, the Florida Legislature replaced the light duty standard with a formula mirroring the Social Security Disability (SSD) system. Moreover, those who qualified for SSD from their work-related injuries, were presumptively considered PTD under the workers’ compensation system.

This standard was viewed by then-Florida Governor Jeb Bush and his corporate constituents as being too easy for claimants. Hence, in 2003, the Republican-controlled Florida Legislature amended the standard once again, replacing the SSD formula with having to demonstrate the inability to perform part-time sedentary employment within a 50-mile radius of the employee’s residence.

The legislation proved so unreasonable that it was revisited a few years later. The result is our current law, which does not include the “part-time” element. Because a part-time job may be 20 hours or less a week compared to a 40-hour full-time workweek, the difference is substantial.

Even still, today’s PTD standard is hard to reach. Very few injured workers are given permanent restrictions by their workers’ compensation authorized doctors that fall below the sedentary duty threshold.

However, all is not lost.

Eligibility for PTD benefits is also achievable by establishing (1) permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search, or (2) permanent work-related physical restrictions that, while not alone totally disabling, preclude a claimant from engaging in at least sedentary employment when combined with vocational factors. Section 440.15(1)(b), Fla. Stat. (2011); Blake v. Merck & Company, 43 So.3d 882 (Fla. 1st DCA 2010).

In assessing a workers’ compensation claimant’s entitlement to permanent total disability (PTD) benefits, factors such as claimant’s actual physical impairment, work history, education and training, ability to do and obtain other work, and age may be considered. Section 440.15(1)(b), Fla. Stat. (2011); Shaw v. Publix Supermarkets, Inc., 609 So.2d 683 (Fla. 1st DCA 1992). Even if the Claimant’s physical limitations alone do not preclude him from engaging in sedentary work, the combination of his physical limitations and vocational abilities render him permanently and totally disabled. Ferrell Gas v. Childers, 982 So.2d 36 (Fla. 1st DCA 2008) Other factors that can come into play include:

• difficulty sleeping at night due to accident-related pain.
• frequent breaks at work, sometimes to the point of having to lie down, to relieve accident-related pain.
• medications causing drowsiness and decreased mental acuity.

The more of this type of evidence that can be presented to the JCC, who is the trier of fact, the better. Few employers are willing to accommodate employees against those who are more able-bodied. Vocational experts can explain these things to the JCC, who already knows them by experience and intuition, but must have the record evidence to support any final decision.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Since 1998, when Republicans, with the election of Jeb Bush as governor, took full total control of the lawmaking process in Florida, the workers’ compensation laws have been tailored to make it difficult for lawyers representing injured workers (a/k/a “claimants”) to earn a sustainable income. The stated policy of the laws has been couched as promoting a greater share of recovered proceeds allocated to claimants instead of attorneys’ fees, but the silent truth is to make it difficult for claimants to hire lawyers willing and able to fight toe-to-toe against employers and their workers’ compensation insurance carriers. Bottom line: There is nothing Big Business hates more than pipsqueaks, i.e., injured workers, being able to challenge them on a level playing field. They want the field tilted in their favor.

The most famous example of this blatant abuse came to a head in Castellanos v. Next Door Company, 192 So.3d 431 (Fla. 2016). Marvin Castellanos was injured while working with Next Door Company. With the help of an attorney, Castellanos prevailed in his workers’ compensation claim, after the attorney successfully refuted numerous defenses raised by the employer and its insurance carrier. However, because the statute then in effect limited his ability to recover attorney’s fees to a sliding scale based on the amount of workers’ compensation benefits obtained, the fee awarded to Castellanos’ successful attorney amounted to only $1.53 per hour for 107.2 hours of work.

The Florida Supreme Court found the statute, which essentially became effective in 2003, unconstitutional. It understood that the statute was designed to make it difficult for injured workers to engage competent legal counsel. Citing Davis v. Keeto, Inc., 463 So. 2d 368 (Fla. 1st DCA 1985) (quoting Neylon v. Ford Motor Co., 99 A.2d 664, 665 (N.J. Super. Ct. App. Div. 1953)) the court noted that a claimant proceeding “without the aid of competent counsel” would be as “helpless as a turtle on its back.” At 371.

Workers’ compensation insurance carriers have not stopped whining about the Castellanos decision. Instead of being stuck with a $164.00 fee for more than 100 hours of work — footnote: the losing attorney in Castellanos, who represented the employer/carrier (E/C), was paid more than $16,000.00 — Castellano’s attorney was able to return to the trial court where he was awarded a reasonable fee upwards of $30,000.00.

The award was fair and good public policy. The right of a claimant to obtain a reasonable attorney’s fee when successful in securing benefits has been considered a critical feature of the workers’ compensation law since 1941. See Murray v. Mariner Health, 994 So. 2d 1051, 1057-58 (Fla. 2008). The stated goal of the workers’ compensation system remains to this date the “quick and efficient delivery of disability and medical benefits to an injured worker” so as “to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer.” § 440.015, Fla. Stat. Allowing a claimant to “engage competent legal assistance” not only evens the playing field but it actually “discourages the carrier from unnecessarily resisting claims” and encourages attorneys to undertake representation in non-frivolous claims, “realizing that a reasonable fee will be paid for [their] labor.” Ohio Cas. Grp. v. Parrish, 350 So. 2d 466, 470 (Fla. 1977).

While the Florida Legislature has made numerous runs at overriding Castellanos, achieving the goal has proven more difficult than expected. The Castellanos decision, which was sensible and well-reasoned, continues to carry weight. More importantly, despite constant cries from Big Business that Castellanos will cause the sky to fall, workers’ compensation premium rates have pretty much fallen every year since. Be sure, though, if rates start creeping up, the wolves will be at the door howling that claimant’s attorneys’ fees are to blame. It doesn’t matter that the large fee awards result from poor claims handling. It’s easier to blame the lawyers.

2016 was a big year in workers’ compensation attorneys’ fee court decisions. While Castellanos involved so-called ‘carrier-paid’ attorney’s fees, Miles v. City of Edgewater Police Dept/Preferred Governmental Claims Solutions, 190 So. 3d 171 (Fla. 1^st DCA 2016) addressed contract rights between injured workers and their attorneys.

Until the Miles case, it was a crime in Florida for an attorney to accept a fee from a claimant in a workers’ compensation case that exceeded the fee formula contained in section 440.34(1), Florida Statutes. Section 440.105(3)(c), Florida Statutes. The crime was punishable by up to one year in prison (775.082) and a fine. Moreover, any lawyer violating 440.105(3)(c) could expect to be suspended or disbarred from the practice of law.

In Miles, the JCC rejected an attorney/client contract in which the client, an injured worker, and her union, agreed to pay a workers’ compensation lawyer a fee in excess of the amount allowed under 440.34. Because it would have been a financial hardship for the law firm hired by claimant to handle the case under the formula set forth in 440.34, it withdrew from the case. The injured worker proceeded Pro Se, where she lost before the JCC.

Claimant argued on appeal that Florida statutes 440.105 and 440.34 violated the First Amendment of the Constitution of the United States and the fundamental right to contract. The First District Court of Appeal agreed. At its heart, Miles is about freedom of speech and the right of individuals to contract freely for legal services. The Court found that 440.105 and 440.34 violated those rights:

In conclusion, the restrictions in sections 440.105 and 440.34, when applied to a claimant’s ability to retain counsel under a contract that calls for the payment of a reasonable fee by a claimant (or someone on his or her behalf), are unconstitutional violations of a claimant’s rights to free speech, free association, and petition — and are not permissible time, place, or manner restrictions on those rights. Likewise, those provisions also represent unconstitutional violations of a claimant’s right to form contracts — and are not permissible police power restrictions on those rights.

Miles at 184.

Before Miles changed the workers’ compensation Claimant-paid fee landscape, the statutory fee was considered the presumptively correct fee. Alderman v. Florida Plastering, 805 So.2d 1097 (Fla. 1^st DCA 2002). In Alderman, the JCC rejected a statutory fee because it resulted in an hourly rate of $847.00. The DCA reversed, reasoning as follows: “[I]t is possible that the award in a given case might be higher than the amount that would be obtained by applying an hourly rate. That is the essential feature of a contingent fee arrangement, and it is inherent in the design of the statute.” Id. at 1100.

To protect contingency fees, the Court established the following rule:

Although the judge of compensation claims may increase or reduce the presumptive fee by applying the statutory factors, an increase or reduction is appropriate only in exceptional circumstances [bold added]. Citations omitted. As we said in Marsh v. Benedetto, 566 So.2d 324, 326 (Fla. 1st DCA 1990), a departure is proper only if the presumptive amount produced by the statutory formula is “manifestly unfair,” Id. at 1100.

The “Alderman Rule” was followed in Smith v. Gulf Coast Hospital, 31 So.3d 297 (Florida 1^st DCA 2010). In Smith, the statutory fee resulted in an hourly rate of $643.00 per hour. Concluding that this hourly rate is “higher than is typically awarded in the district,” the JCC reduced the hourly rate to $200.00. Citing extensively from Alderman, the First DCA reversed and directed the JCC to award claimant’s attorney “a fee in the amount established by applying the fee schedule.”

The “Alderman Rule” was also followed recently in Michael D. Rudolph v. Darien Smith, The Home Depot U.S.A., Inc. and Liberty Mutual, January 24, 2024 (1^st DCA). In Rudolph, the JCC rejected a requested fee, concluding that “there is little there to justify a fee of about $4,000 an hour.” Citing Alderman, the First District reversed the lower court’s rejection, explaining that the JCC erred in departing downward by relying solely on the “customary hourly rate charged in the locality for similar work.”

By declaring the statutory fee unconstitutional, Miles established, of course, that the statutory fee is no longer presumptively correct. By allowing attorney-client contracts for fees in excess of the statutory fee, Miles established that the contract fee rate is the presumptively correct fee in workers’ compensation cases. (The Florida Bar has guidelines on determining the reasonableness of fees, so there are constraints besides just the attorney-client contract.) This conclusion is not changed by workers’ compensation judges being charged with approving attorney’s fees.

CONCLUSION: Workers’ compensation laws have always been a target of the Florida Legislature, sometimes for fair and reasonable reasons but mostly to maximize corporate profits at the expense of injured workers. Even though Castellanos and Miles have leveled the playing field, which has angered Corporate American, the legislative agenda during the past 4-5 years has been relatively tranquil compared to years past. This is attributable to stable and sometimes reduced premium rates, and the Legislature’s obsession, fueled by Florida Governor Ron DeSadist, with ugly and divisive culture wars. Nevertheless, targeting injured workers is never far from the minds of those same legislators.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.