Recent changes affecting PTSD benefits for first responders

First Responders’ PTSD Benefits:

What’s New and What’s Not

by Richard E. Chait and Mark A. Touby

While our nation struggles to deal with the realization that psychiatric injuries can be just as disabling as physical injuries, Florida has taken an important step forward by allowing first responders to claim lost wages as well as receive medical treatment for some mental injuries. In the course of their jobs, first responders often experience gruesome scenes that can result in psychological trauma. Florida law, specifically §112.1815, Fla. Stat., provides for medical care for all psychological conditions suffered by first responders that result from witnessing these shocking scenes while performing their duties. While the workers’ compensation system generally allows for psychiatric injuries to be compensable when accompanied by a physical injury, this law does not require that the first responder suffer a physical injury in conjunction with the traumatizing experience.1 However, if the traumatic experience caused the first responder to miss time from work, the first responder previously was not eligible for indemnity benefits (payment for lost wages). As the result of recent legislation that amends §112.1815 (effective October 1, 2018), first responders who are diagnosed with PTSD will now be eligible to receive indemnity benefits under the newly created subsection (5). Nevertheless, there are some limitations under this new law.

The exception to the physical injury requirement for compensability of a mental or nervous condition applies only to first responders. “First responder” is defined in §112.1815(1) as follows: “…a law enforcement officer as defined in s. 943.10, a firefighter as defined in s. 633.102, or an emergency medical technician or paramedic as defined in s. 401.23 employed by state or local government. A volunteer law enforcement officer, firefighter, or emergency medical technician or paramedic engaged by the state or a local government is also considered a first responder of the state or local government for purposes of this section.”

To be eligible for indemnity benefits, the first responder must: (1) be diagnosed with PTSD by an authorized treating psychiatrist; and (2) suffer from PTSD as a result of experiencing one of the events specifically listed in the statute.

The newly created indemnity benefit under §112.1815 applies only to the psychiatric diagnosis of PTSD, as diagnosed by an authorized physician. As such, absent a diagnosis of PTSD, first responders diagnosed with depression, anxiety disorder or other psychiatric ailments common in work related injuries will not be eligible for indemnity benefits under this section.

The first responder’s PTSD must result from experiencing one of the events specifically listed in the statute while acting in the course and scope of employment. The list of 11 triggering events includes witnessing the death of a minor, and/or witnessing any

death that involves “grievous bodily harm of a nature that shocks the conscience.”2 Consequently, there is no “catch-all” phrase according to the rules of statutory construction. Events not on the enumerated list are, by implication, assumed to not be covered by the statute.

The definition of “grievous bodily harm of a nature that shocks the conscience” will be determined by administrative rules. The rules development procedure is already underway, and a Rules Development Workshop took place on October 4, 2018. The preliminary text of the proposed rule indicates that the final adopted rule will likely define the term to include a gruesome range of injuries such as decapitation, impalement, etc. During the workshop, suggestions were made to include additional injuries (such as a drowning death and smoke inhalation death) to the proposed definition of “grievous bodily harm of a nature that shocks the conscience.”

New subsection (5) of the statute includes language concerning the burden of proof and contains exceptions from applicability of limitations found elsewhere in the workers’ compensation law. The PTSD must be demonstrated by clear and convincing evidence, which is the same level of proof currently required in exposure cases.3 The benefits under the new subsection are not subject to apportionment due to pre-existing PTSD. There are no limitations on permanent impairment rating,4 and there are no limitations on temporary indemnity benefits in connection with the date of maximum medical improvement.5 This language, however, is not new; most of it is a reiteration of the language that is found in subsection (2)(a)3.

Employees are generally required to report an injury to their employer within 30 days of the event.6 Per §112.1815(5)(d), “The time for notice of injury or death in cases of compensable post-traumatic stress disorder under this subsection is the same as in §440.151(6) and is measured from one of the qualifying events listed in subparagraph (a)2; or the manifestation of the disorder, whichever is later.” Section 440.151 is the portion of the workers’ compensation statute that refers to occupational diseases and which extends the time for notice of injury to 90 days in those types of cases. How this requirement will interact with §112.1815(5)(d), which states that a claim under the subsection must be properly noticed within 52 weeks after the qualifying event, is one of many questions that will need to be answered. It is likely that multiple parts of this subsection will be the subject of controversy that inevitably will have to be adjudicated by judges of compensation claims and the appellate courts.

There are other instances in which the applicability of the amendment remains unclear. It is established that “…the substantive rights of the parties are fixed by the law in effect on the date of injury.” Meek v. Layne-Western Co., 624 So.2d 345 (Fla. 1st DCA 1993). Establishing the date of the accident for first responders who witness an enumerated triggering event after October 1, 2018, and subsequently develop PTSD will not be an issue. However, it is uncertain whether a first responder who witnessed one of the triggering events prior to October 1, 2018, but does not have a manifestation of the PTSD until after that date, will be entitled to indemnity benefits.

A case involving an injury described in §112.1815 is most like an occupational disease or an exposure case. Newly added subsection (5) makes reference to notice requirements similar to the occupational disease portion of the workers’ compensation statute; while the new subsection also requires a higher standard of proof (clear and convincing), which is the same as required for exposure cases. In those types of cases, the date the condition becomes disabling is usually determined

as the date of accident. As defined in §440.02(13), Fla. Stat., “disability” means “incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.”

In American Beryllium Co. v. Stringer, 392 So.2d 1294 (Fla. 1980), the claimant did not file a claim for indemnity benefits due to exposure to a toxic element until the condition became disabling, which was seven years after he had last worked for the employer. The deputy commissioner (n/k/a judge of compensation claims) denied the claim based on the statute of limitations. However, the Florida Industrial Relations Commission (IRC) reversed stating that the injury was not compensable until such time as it became disabling. The Florida Supreme Court reviewed the IRC’s decision and upheld it noting that in occupational disease cases, it is the disability rather than the disease that determines compensability of the claim. We will have to wait until a case arises to find out if the courts will apply the reasoning in Stringer to claims under §112.1815(5) that are defended on the basis of expiration of the statute of limitations.

The applicability of §112.1815(5) to first responders who have existing medical claims for PTSD pre-dating the 2018 amendment will likewise have to wait until cases arise and are adjudicated. Because of the provision of medical care, a date of accident would have been established which would pre-date the amendment. It is difficult to predict how the judges of compensation claims will decide those cases.

Until the answers to these and many other questions are answered, each claim must be handled with one eye on the road and one eye on the horizon. Until a body of case law is developed, each case must be handled carefully, not only for the sake of the indemnity claim at issue but also with thoughtful consideration as to what precedents might be created.

Our first responders are aptly labeled. They are the first ones to arrive and provide assistance to citizens of Florida who are in their most desperate and vulnerable moments. The law acknowledges that there are certain situations that affect even the most prepared and most dedicated among us. For all they do, these benefits must be available to all first responders who need them without encountering unnecessary legal hurdles.

RICHARD E. CHAIT

is a shareholder and partner with the law firm of Touby, Chait & Sicking, PL. He currently serves on the FJA Board of Directors – Executive Committee and is the chair of the FJA Workers’ Compensation Section. He is a past chair of The Florida Bar Workers' Compensation Section and past president of the Florida Workers' Advocates (FWA). Throughout his career, he has maintained a vital role in Florida’s political, legislative and leadership process on behalf of Florida’s injured workers and the Workers’ Compensation System. He is a recipient of the FJA Jon E. Krupnick Award, Cornerstone Award and Silver Eagle Award (2017, 2018); the inaugural recipient of the David H. Levine Outstanding Leadership Award and Stewart L. Colling Legislative Leadership Award (FWA) and the Frierson-Colling Professionalism Award (Workers’ Comp Section).

MARK A. TOUBY

is the managing partner of Touby, Chait & Sicking, PL. He has been a Board Certified Workers’ Compensation Lawyer since 2011. His practice focuses on workers’ compensation and public employee benefits. He has served as president of Florida Workers Advocates (FWA), chair of the Workers’ Compensation Rules advisory committee and as a member of the Executive Council of the Workers Compensation Section of The Florida Bar. He is AV rated by Martindale-Hubbell and is a recipient of the Jon E. Kupnick Award.

1 Section 440.093, Fla. Stat., pertaining to nervous or mental injuries, requires an accompanying physical injury resulting in medical treatment, for a nervous or mental injury to be compensable. Section 112.1815, Fla. Stat. (2007) created an exception to the physical injury requirement for first responders. 2 The following is the list of triggering events per the new section: a. Seeing for oneself a deceased minor; b. Directly witnessing the death of a minor; c. Directly witnessing an injury to a minor who subsequently died before or upon arrival at a hospital emergency department; d. Participating in the physical treatment of an injured minor who subsequently died before or upon arrival at a hospital emergency department; e. Manually transporting an injured minor who subsequently died before or upon arrival at a hospital emergency department; f. Seeing for oneself a decedent whose death involved grievous bodily harm of a nature that shocks the conscience; g. Directly witnessing a death, including suicide, that involved grievous bodily harm of a nature that shocks the conscience; h. Directly witnessing a homicide regardless of whether the homicide was criminal or excusable, including murder, mass killing as defined in 28 U.S.C. s. 530C, manslaughter, self-defense, misadventure, and negligence; i. Directly witnessing an injury, including an attempted suicide, to a person who subsequently died before or upon arrival at a hospital emergency department if the person was injured by grievous bodily harm of a nature that shocks the conscience; j. Participating in the physical treatment of an injury, including an attempted suicide, to a person who subsequently died before or upon arrival at a hospital emergency department if the person was injured by grievous bodily harm of a nature that shocks the conscience; or k. Manually transporting a person who was injured, including by attempted suicide, and subsequently died before or upon arrival at a hospital emergency department if the person was injured by grievous bodily harm of a nature that shocks the conscience. 3 Section 440.02(1), Fla. Stat. “ … An injury or disease caused by exposure to a toxic substance, including, but not limited to, fungus or mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.” 4 Section 440.15(3)(c), Fla. Stat. – “… permanent impairment benefits are limited for the permanent psychiatric impairment to one percent permanent impairment.” 5 Section 440.093(3), Fla. Stat. – “… in no event shall temporary benefits for a compensable mental or nervous injury be paid for more than 6 months after the date of maximum medical improvement for the injured employee’s physical injury or injuries…” 6 Section 440.185(1) – “An employee who suffers an injury arising out of and in the course of employment shall advise his or her employer of the injury within 30 days after the date of or initial manifestation of the injury…”