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Department Store Worker Awarded Permanent Total Disability

August 19, 2005

The opinion of an employer/carrier's expert did not overcome evidence of a worker's injuries and subsequently the claimant won permanent total disability in Black, Jean v. Dillard's Department Stores (12 FLWCLB 107, Fla. JCC 2005). Thus, over the opinion of an expert medical advisor that a claimant could perform light-duty work, Judge Remsnyder awarded permanent total disability benefits. The ruling shows that if an expert medical advisor is prevented from evaluating the claimant's physical abilities, his opinion regarding the claimant's ability to earn wages may not overcome the other evidence that the claimant is permanently and totally disabled.

On Jan. 30, 2000, a cosmetic salesperson slipped and fell, injuring her back, knee, shoulder and neck. The claimant was unable to work following her injury and, eventually, began receiving Social Security disability benefits. While an expert medical advisor stated that the claimant could perform light-duty work, the Judge of Compensation Claims found the weight of the evidence supported the claimant's petition for PTD benefits.

The expert medical advisor indicated that he was not able to make a meaningful examination of the claimant due to her subjective complaints. While he stated that he believed she could perform some light-duty work, he was unable to assess what her true capabilities were. The employer/carrier argued that because the expert medical advisor released the claimant to return to work with no restrictions, the claimant should not be awarded benefits.

The JCC said that it was not rejecting the expert medical advisor's opinion, but that the opinion did not undercut the claim for PTD. The JCC pointed out that the claimant's doctors placed her on no-work status and linked the claimant's inability to work to her compensable injury. In addition, the claimant applied for and was accepted by the Social Security Administration for disability benefits. The JCC concluded that the claimant was PTD and awarded benefits.