First Responders, Post-Traumatic Stress Disorder And The Compensability Of Psychiatric Conditions In Florida's Workers Compensation System

R. Stephen Coonrod

McConnaughhay, Coonrod, Weaver & Stern, PA

Compensability Of Psychiatric Conditions

            Section 440.093, Florida Statutes, provides that a mental or nervous injury due to stress, fright or excitement only “is not an injury by accident arising out of the employment”.  However, mental or nervous injuries occurring as a manifestation of a compensable physical injury are compensable.  Section 440.093, Florida Statutes, goes on to provide that the compensable physical injury must be and remain the Major Contributing Cause of the mental or nervous condition.

            The Statute was clearly written making it easy for an Employer/Carrier to determine when a Claimant’s psychiatric condition would be covered under Workers Compensation.  The Claimant must have suffered a physical injury and that physical injury must be and remain the cause of the need for psychiatric care.  However, this straightforward reading of the Statute did not survive application to a particularly sympathetic real world situation.  In the case of McIntosh v. CVS Pharmacy, 135 So.3^rd 1157 (Fla. 1^st DCA 2014), the First District Court Of Appeal reversed a finding by the Judge of Compensation Claims denying the compensability of the Claimant’s psychiatric condition.  The Claimant in that case was a pharmacist working in a 24 hour pharmacy.  At approximately 3:00 a.m. an armed robber entered the store, pointed a gun at the Claimant and told her to get on the floor.  Ms. McIntosh was six months pregnant at the time and attempted to flee.  During this attempt, she fell and suffered a minor injury to her knee.  Care was provided at an Emergency Room and no further care was needed nor symptoms reported.  At some point thereafter the Employee developed symptoms of Post-Traumatic Stress Disorder and first sought psychiatric care nearly two years after the incident.  It was undisputed that the Post-Traumatic Stress Disorder was the result of the incident at work.  It was also undisputed that the Employee had no physical injuries contributing to the diagnosis.  In reversing the denial of benefits, the First District Court of Appeal concluded that Florida Statutes only require that a psychiatric injury result from the same event which caused a physical injury regardless of how minor the physical injury is.  This is the current standard for compensability of psychiatric conditions for all Employees in Florida, with the exception of First Responders.

Special Provisions For First Responders

            The Legislature has created Statutes which confer enhanced or unique benefits for certain occupations.  The most well-known is Section 112.18, Florida Statutes, which is sometimes called the Heart Lung Bill.  Pursuant to that Statute, Firefighters, Law Enforcement Officers, Corrections Officers and Correctional Probation Officers are presumed to have suffered a compensable injury if they are diagnosed as suffering from disabling hypertension, heart disease or tuberculosis.  Application of the Statute requires the Claimant to meet certain requirements and the Employer/Carrier has the ability to rebut the presumption.

            Section 112.1815, Florida Statutes, applies to First Responders who are defined as Firefighters, Paramedics, Emergency Medical Technicians and Law Enforcement Officers.  The definition also extends to Volunteer First Responders working for State or Local government.  By virtue of being a First Responder a Claimant is entitled to a lower burden of proof when establishing the compensability of exposure claims. 

Mental Injuries Suffered By First Responders

First Responders are entitled to receive medical benefits for mental or nervous injuries “arising out of the employment unaccompanied by a physical injury”.  However, indemnity benefits are not payable in the absence of a physical injury.  Under existing Law, as well as the Amended Statute effective 10/01/18, First Responders are entitled to receive care for psychiatric conditions arising out of employment, even if there is no physical injury.  However, the absence of indemnity benefits made such claims rare as equivalent benefits were available through health insurance.

Senate Bill 376 Expands Benefits For First Responders

            Effective 10/01/18 Section 112.1815, Florida Statutes, will now provide for payment of medical and indemnity benefits to First Responders who suffer disabling Post-Traumatic Stress Disorder,  even without a physical injury.  However, to qualify for such benefits a specific,  enumerated event must have taken place which led to the diagnosis of disabling Post-Traumatic Stress Disorder.  The diagnosis must be made by a psychiatrist and clear and convincing evidence is required for causation.  The Statute also seems to bar claims for such benefits if they are made more than 52 weeks after the incident.

            There are 11 different qualifying events referenced in the Statute.  The occurrence of one of the listed events is required before a Claimant can proceed to seek Indemnity Benefits.  Those events can be summarized as follows:

1. Witnessing a dead minor or injuries to a minor which prove fatal.

2. Directly witnessing a homicide.

3. Seeing an adult who died of traumatic injuries which are of a nature

                        that shocks the conscience.

Rule Making

            The Department of Financial Services was instructed by the Legislature to adopt a Rule specifying what types of injuries qualify as “grievous bodily harm of a nature that shocks the conscience”.  Subsequent to the initial workshop a proposed Rule was created which will be the subject of further discussions at a second workshop on 10/04/18.  An initial observation is that there are many conscience shocking fatal injuries which are not addressed by the proposed Rule.  It will be difficult to draft a comprehensive Rule without allowing the Judge of Compensation Claims some discretion to address particularly horrific circumstances which may not specifically have been anticipated during the rulemaking process. 

Impact Of Legislation

            The diagnosis of Post-Traumatic Stress Disorder seems to be a broad one diagnosed in a clinical setting to responses to questions posed to the patient and family member.  There is no purely objective test to determine if someone has PTSD.  However, few such claims have been filed in the Workers Compensation system on behalf of First Responders because the benefits provided through Workers Compensation for stress only injuries did not differ significantly from the benefits available through health insurance.  This will change effective 10/01/18. 

            Opinions differ as to whether there will be a significant number of new claims under this Statute.  However, for those claims that do qualify under the Statute, we can anticipate significant exposure.  The 1% limitation on psychiatric impairment ratings does not apply to First Responders.  The same is true with regard to the six month cap on Temporary Impairment Benefits for psychiatric restrictions after the date of physical Maximum Medical Improvement.  The Florida Uniform Permanent Impairment Rating Schedule seems to allow a psychiatrist the discretion to award an impairment rating of “25+”% for the most severe cases of PTSD.  The  absolute highest rating which can be assigned is not specified nor is Post-Traumatic Stress

Disorder even addressed with specificity.  Consequently, even for those employees who are not Permanently and Totally Disabled due to PTSD, there can be exposure for significant Temporary Disability and Permanent Impairment Benefits.

Conclusion

             For the vast majority of employees in Florida, psychiatric care through the Workers Compensation system is not compensable unless they also have suffered a physical injury.  In the case of First Responders, claims of psychiatric injuries arising out of their employment are compensable even if they had not suffered a physical injury.  However, these “stress only” claims do not allow for the payment of indemnity benefits.  In essence, prior to 10/01/18, a First Responder who suffered a psychiatric condition as a result of the stresses of work could receive only medical care through Workers Compensation with no corresponding monetary compensation regardless of disability.

            Effective 10/01/18 First Responders who have been diagnosed with Post Traumatic Stress Disorder will be entitled to seek monetary benefits through Workers Compensation along with the provision of medical care.  Such benefits are only available if the employee has been diagnosed by a psychiatrist with Post Traumatic Stress Disorder and the condition must result from one of the qualifying events listed in the Statute.  The details of what constitutes certain  qualifying events are currently the subject of a rule making process.