The employer/carrier denied the PTD claim on the opinion of Mark W. Hollman, the orthopedist authorized at the request of the claimant, who opined that claimant reached MMI on Feb. 24, 2002, with a total impairment rating of 8%, and who further opined that claimant could work with restrictions against heavy lifting, prolonged standing, and so on. The claim preceded to a hearing before the JCC who received evidence and argument regarding positions at Goodwill retail establishments, such as sorter and greeter, which could be modified to fit Heard's restrictions. The JCC found such positions to be "sheltered" pursuant to the standard set forth in Shaw v. Publix Supermarkets, Inc., 609 So.2d 683 (Fla. 1st DCA 1992). The JCC further found that "Goodwill is in the business of providing light duty work for individuals for whom placement is difficult or impossible in the general labor market."
Liggon, 668 So.2d at 271. Further, we do not read Shaw v. Publix Supermarkets, Inc., 609 So.2d 683 (Fla. 1st DCA 1992), to require reversal here. In Shaw, the judge of compensation claims denied permanent total disability benefits in part based on the claimant's ability to perform a light duty job in which the employer arranged a flexible work schedule, allowed frequent rest periods, and established no production quotas.
So-called sheltered employment is neither "conclusive proof of a substantial earning capacity," § 440.15(1)(b), Fla. Stat. (1991), nor "a substitute for payment of benefits properly due under the provisions of chapter 440." Shaw v. Publix Supermarkets, Inc., 609 So.2d 683, 686 (Fla. 1st DCA 1992). It is work unavailable in the "open labor market" that an employer who is responsible for compensation benefits pays an injured employee to perform. See Southern Bell Tel. Tel. Co. v. Bell, 167 So.2d 844, 846 (Fla. 1964); Port Everglades Terminal Co. v. Canty, 120 So.2d 596, 601 (Fla. 1960) ("a specially-created job, one light of effort and responsibility but laden with rest and comfort (employment plums that do not often dangle from the tree of everyday economics)") (quoting Unora v. Glen Alden Coal Co., 377 Pa. 7, 104 A.2d 104, 107 (1954)); Sugar Cane Growers Co-op. v. McLean, 679 So.2d 806, 857 (Fla. 1st DCA 1996) ("Employment in a regular job may be considered sheltered, when, as here, the claimant is permitted to regulate his own hours to accommodate his disability."); U.S. Fidelity and Guaranty Assoc. v. Kemp, 658 So.2d 1212 (Fla. 1st DCA 1995) (finding a position sheltered employment where "fellow employees covered for the claimant because he needed to leave work and go home
[11] As we close this part, we note the flexibility given to JCCs under section 440.15(1), as summarized in Liggon, the other decision cited by LaPointe: "In assessing entitlement to PTD benefits, the court may consider factors such as a claimant’s actual physical impairment, work history, education and training, ability to do and obtain other work, and age." Liggon, 668 So. 2d at 264 (quoting Shaw v. Publix Supermarkets, Inc., 609 So. 2d 683, 685 (Fla. 1st DCA 1992), which also took a holistic approach to the evidence in assessing the sufficiency of proof in support of PTD). [12] The enumeration of "three ways" (in Blake or LaPointe), then, should be treated as guidelines for what a JCC may consider to be sufficient proof to demonstrate PTD under section 440.15(l)(b).
Liggon, 668 So.2d at 271. If an employer creates a job for an employee merely as a litigation tactic in a workers' compensation case, such a job cannot be said to constitute "gainful employment" that would defeat a PTD claim. See id. (citing Shaw v. Publix Supermarkets, Inc., 609 So.2d 683, 686 (Fla.1st DCA 1992)). Reasonable job modification for the purpose of accommodating an injured or partially disabled employee will not place the job outside of the definition of gainful employment.
Under the pre-1994 version of section 440.15(1)(b), permanent total disability benefits may be based on physical restrictions and vocational factors which combine to preclude the level of work provided in the statute. See Commercial Carrier Corp. v. LaPointe, 723 So.2d 912 (Fla. 1st DCA 1999); Shaw v. Publix Supermarkets, Inc., 609 So.2d 683 (Fla. 1st DCA 1992). The pertinent language in the current version of section 440.15(1)(b) is similar to the language under which this court has recognized that it is appropriate to consider both physical and vocational factors.
See Chicken `N' Things v. Murray, 329 So.2d 302, 304 (Fla. 1976) ("We decline petitioner's invitation to interject ourselves at random as the primary finder of fact in workmen's compensation cases"). See also Commercial Carrier Corp. v. LaPointe, 723 So.2d 912, 917 (Fla. 1st DCA 1999). A claimant's unexplained refusal of a specific offer of suitable employment available in the open labor market is inconsistent with permanent total disability.See Wal-Mart Stores, Inc., 668 So.2d at 264-65;Shaw v. Publix Supermarkets, Inc., 609 So.2d 683, 685-86 (Fla. 1st DCA 1992). Okeelanta and Alexis conceded that, for the periods of September 26, 1996, through October 9, 1996; November 21, 1996, through December 4, 1996; and January 3, 1997, through January 30, 1997, Mr. Olavarria submitted timely requests for wage loss benefits.
Wal-Mart Stores v. Liggon, 668 So.2d 259, 271 (Fla. 1st DCA 1996). Employment in a regular job may be considered sheltered, when, as here, the claimant is permitted to regulate his own hours to accommodate his disability. See Shaw v. Publix Supermarkets, Inc., 609 So.2d 683 (Fla. 1st DCA 1992); Lovell Bros., Inc. v. Kittles, 518 So.2d 319, 320-21 (Fla. 1st DCA 1987). The judge did err in concluding that sections 440.02(34)(f) and 440.15(1)(b), Florida Statutes (1994), relating permanent total disability to catastrophic injuries as defined in the Federal Social Security Act were procedural burden of proof amendments which could be applied retroactively.
"In assessing entitlement to PTD benefits, the court may consider factors such as a claimant's actual physical impairment, work history, education and training, ability to do and obtain other work, and age." Shaw v. Public Supermkts, Inc., 609 So.2d 683, 685 (Fla. 1st DCA 1992); see Roose Griffin Landscape Contractors v. Weiss, 558 So.2d 102, 105-06 (Fla. 1st DCA 1990). Once the claimant presents a prima facie case, which the JCC accepts, the E/C must demonstrate that suitable work is available for the claimant.
Although there was evidence that the claimant has continuously received a full-time paycheck since being hired full-time, there is competent substantial evidence to support the decision of the JCC that this claimant was engaged in sheltered employment. See, e.g., Shaw v. Publix Supermarkets, Inc., 609 So.2d 683 (Fla. 1st DCA 1992) (claimant permitted to modify hours of employment as needed, as well as other accommodations); Malm v. Holiday Theatres, 560 So.2d 270 (Fla. 1st DCA 1990) (an indicium of sheltered employment was whether the claimant's job duties were the same as those of others holding the position, or whether the job had been modified to accommodate the claimant's disability); New Wales Chemicals, Inc. v. Parks, 518 So.2d 360, 363 (Fla. 1st DCA 1987); Kyle v. Davis, 435 So.2d 918 (Fla. 1st DCA 1983) (employer provided claimant with a job counting pipe, placed no deadlines or time restrictions on him, and provided a chair which was moved around the supply yard for the claimant so he could rest whenever necessary). Cf. Southern Bell Telephone and Telegraph Co. v. Bell, 167 So.2d 844, 846 (Fla. 1964) (reversing a finding of sheltered employment because the claimant was fully earning his pay and had not been "given lighter duties for the same or greater pay by a charitable employer").