Thought Leadership

The employer/carrier in this matter appealed the judge of compensation claims’ award of permanent total disability (PTD) benefits. They argued that the judge’s decision was not sufficiently supported by the evidence and that the judge misapplied the Blake methods. See Blake v. Merck & Co., 43 So.3d 882 (Fla. 1st DCA 2010).

The First District Court of Appeal emphasized that appellate review is limited with respect to how the judge adjudicated the facts and it is not their role to re-weigh the evidence.

The District Court also discussed the role of Blake in PTD claims and stated that Section 440.15(1)(b), Fla. Stat. (2009), not Blake, governs how an employee can establish entitlement to PTD benefits. Under 440.15(1)(b), unless the employee has suffered one or more of the enumerated injuries, he or she 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.” Again, this is a fact question that must be resolved by the judge based on the evidence presented. The Blake methods are merely guidelines for what a judge may consider to be sufficient proof to demonstrate PTD under Section 440.15(1)(b). Blake simply catalogs the different forms of proof that have been accepted as competent, substantial evidence supporting a judge’s determination of PTD.

The appellate court described the judge’s role to PTD claims as a flexible and holistic approach. One main issue in this case was the claimant’s job search was described by the judge as being “on the low side.” The appellate court stated that they may have come to a different conclusion as the trier of fact about whether the claimant’s job search was exhaustive and unsuccessful. However, the judge is the trier of fact, and his award of PTD benefits was affirmed.

_{What’s Hot in Workers’ Comp, Vol. 28, No. 2, February 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}