Andrew S. Neuwelt Workers Compensation Law Blog on Lawyers.com

On July 26, 2007, David Barone, a 59 year-old New Smyrna
Beach, Florida construction worker, fell approximately 20 feet from a platform
resulting in a shattered right heel and multiple left foot fractures. The
accident was accepted as compensable and the workers' compensation carrier
provided several unsuccessful open reduction surgeries. Over the course of
several years the fractures resulted in non-unions (a failure of healing
following a broken bone) causing a permanent injury.

The insurance company asserted multiple defenses, including
an apportionment argument which would result in another employer and carrier
(or possibly the injured worker himself) being financially responsible for
payment of a portion or possibly all of the medical and lost wage benefits. The
Honorable Robert McAliley denied the carrier's attempt to continue the hearing
finding that they had sufficient time, knowledge and opportunity to,
"flush out the issue well before the motion to continue was filed."

In reviewing the facts of the case, Judge McAliley stated
that Barone had climbed a 24 foot ladder and was standing on a platform to pour
structural concrete when the platform gave way and he fell to the ground below.
He was immediately taken to a local hospital and operated on by a
board-certified Orthopedic surgeon to repair a divergent left foot Lisfranc
fracture and a displaced right foot cuboid with calcaneus fracture. Barone was
discharged and given non-weight bearing restrictions and returned to work at Kennedy.
In November 2007, he had a pin removed and was returned to work at a sit down
job. In February 2008, x-rays revealed bending of the pins in the right foot
indicating a non-union resulting in further surgery and insertion of a plate.
In 2009, Barone began working for a new company as a seasonal supervisor which
he described as a light job. By September 2010, signs of post traumatic
degenerative changes on x-rays were seen and in December 2010, the prior
surgery was repeated. By July 15, 2011, the surgeon states Barone "is a
disabled person."

Under the current workers' compensation laws in Florida, to
be entitled to Permanent Total Disability (PTD) benefits an injured worker must
establish eligibility pursuant to Fla. Stat. §440.15(1)(b)5, which requires
demonstrating one of the following: (1) permanent medical incapacity to engage
in at least sedentary employment, within a fifty mile radius of the employee's
residence, due to physical limitation or (2) permanent work-related physical
restrictions coupled with an 12 exhaustive but unsuccessful job search or (3)
permanent work related physical restrictions that, while not alone totally
disabling, preclude claimant from engaging in at least sedentary employment
when combined with vocational factors. Blake v. Merck & Co., 43
So. 3d 882 (Fla. 1st DCA 2010). 

Judge McAliley found Barone was eligible for PTD benefits
based on the second and third criteria. Specifically, the Judge opined Barone
had an 18% whole body orthopedic impairment, significant anatomical
restrictions and considerable foot discomfort which was confirmed by the
insurance company's expert. Barone has a pronounced limp, cannot stand on his
feet for an appreciable length of time cannot walk a long distance and his
vocational skills are limited to carpentry with no office or computer skills.

The Judge found Barone was sincere in his history of a job
search, including his testimony that, "every time I went back to work, the
foot would give out." Thus, Barone's efforts in seeking new employment
reflected a bonafide attempt at finding work. Further, the judge pointed to the
district court's position that, "obtaining employment should be measured
in terms of the real world, not some abstraction," and that, "this
court has stated that the legal question presented under section 440.15(1)(b)5,
is not merely whether the employee is physically capable of performing at least
sedentary employment, but whether the employee (the individual seeking the
benefits, not a hypothetical individual) can reasonably secure or obtain --
engage in -- at least sedentary employment within a fifty mile radius of his
residence, considering his physical and vocational limitations." HDV
Construction Systems, Inc. v. Aragon, 66 So. 3d 331, 34 (Fla. 1st DCA
2011).

Based on the above testimony and evidence, Barone was found
permanently and totally disabled and the insurance company was required to pay
him PTD benefits required under the law.

As Workers' Compensation attorney's we handle claims like
this on a regular basis. Remember, the insurance company's goal is to spend as
little money on you as possible when handling your claim. That in turn means
that you, the injured employee, are facing a fight at every turn.

Let us do the fighting for you. We represent injured
employees throughout Florida and Georgia and can help you obtain medical and
lost wage benefits. Contact us at 1-877-WE-CAN-HELP or visit us online at
the Law Offices
of Franks & Koenig.