By Brian B. Bolton, Esquire & George A. Helm, III, Esquire - Bolton & Helm, LLP
Approximately 45 million United States citizens, or about 20% of the population, suffer from some type of mental or nervous disorder on an annual basis 1. Further, a substantial portion of the population, including workers’ compensation claimants, have experienced a mental or nervous disorder at some point in their life. It is not uncommon for an individual involved in a traumatic event, which can occur in an industrial accident, to experience a variety of emotional symptoms including upsetting thoughts, interrupted sleep, and mood changes 2. These symptoms often occur in tandem with chronic pain that results from work related injuries. The majority of people improve, but a substantial number develop persistent mental problems often diagnosed as major depression, anxiety or Post Traumatic Stress Disorder (PTSD). While statistics vary, PTSD alone affects about 7.7 million American adults annually3.
After the Florida Supreme Court decision in Castellanos, mental disorder claims seem to have become more frequent in Florida workers’ compensation litigation 4. Indeed, Florida case law has eroded the statutory burden placed on injured workers for proving the compensability of mental claims under Fla. Stat. 440.093. Thus, it is likely that future claims involving mental disorders will drive up costs and insurance premiums. The following is a brief discussion of Florida law concerning compensability of mental and nervous disorders.
Florida Statute 440.093 (2017) addresses the compensability of mental and nervous disorders. The statute provides for different instances in which a mental or nervous disorder may be compensable as arising out of an industrial accident. Florida Statute 440.093 (1) (2017) reads as follows:
A mental or nervous injury due to stress, fright, or excitement only is not an injury by accident arising out of the employment. Nothing in this section shall be construed to allow for the payment of benefits under this chapter for mental or nervous injuries without an accompanying physical injury requiring medical treatment. A physical injury resulting from mental or nervous injuries unaccompanied by physical trauma requiring medical treatment shall not be compensable under the statute.
Florida Statute 440.093 (2) (2017) also addresses the medical evidence and burden of proof in this type of case. That statute section reads as follows:
Mental or nervous injuries occurring as a manifestation of an injury compensable under this chapter shall be demonstrated by clear and convincing medical evidence… The compensable physical injury must be and remain the major contributing cause of the mental or nervous condition and the compensable physical injury as determined by reasonable medical certainty must be at least 50% responsible for the mental or nervous condition as compared to all other contributing causes combined.
Florida Statute 112.1815(2)(a)3. provides special provisions for compensability of psychiatric injuries involving first responders and reads:
A mental or nervous injury involving a first responder and occurring as a manifestation of a compensable injury must be demonstrated by clear and convincing evidence. For a mental or nervous injury arising out of the employment unaccompanied by a physical injury involving a first responder, only medical benefits under s. 440.13 shall be payable for the mental or nervous injury. However, payment of indemnity as provided in s. 440.15 may not be made unless a physical injury arising out of injury as a first responder accompanies the mental or nervous injury. Benefits for a first responder are not subject to any limitation on temporary benefits under s. 440.093 or the 1-percent limitation on permanent psychiatric impairment benefits under s. 440.15(3)(c).
Notwithstanding the statute, the First District Court of Appeal has eroded the meaning of the statutory sections set forth above over the past several years. See McKenzie v. Mental Health Care, Inc., 43 So. 3d 767 (Fla. 1st DCA 2010); McIntosh v. CVS Pharmacy 135 So.3d 1157, (Fla. 1st DCA 2014)(Case No. 1D13-2397). Most notably, in McIntosh, the claimant worked as a pharmacist when an armed robber entered her store at approximately 3 AM on October 19, 2010. The claimant was 6 months pregnant at the time. The gunmen ordered the claimant to get onto the floor and shot at her when she attempted to flee. McIntosh was not hit by the shot but she did fall landing on her stomach. Some physicians alluded to a “very superficial abrasion of the right knee.” However, no medical evidence was presented documenting any authorized medical care or treatment for any claimed physical injury for 19 months following the date of accident. The claimant was seen by a neurologist on June 27, 2012. The neurologist noted only subjective complaints and he found no objective clinical evidence to support her complaints that her “legs were bothering her.” Accordingly, he reported that the claimant reached maximum medical improvement with no impairment and no work restrictions or limitations related to a physical condition.
The claimant’s one-time change neurologist rendered identical findings and conclusions. See Sharon McIntosh v. CVS pharmacy, OJCC Case No. 12 – 006528 JJL (Order April 24, 2013) pp. 6-7. Considering all of the testimony, Hon. John Lazzara, in a wellreasoned decision, denied the request for psychiatric care. He so ruled because the medical evidence established the absence of any physical injury. In that case, there was an absence of evidence of an ascertainable physical injury connected to the alleged mental condition. Additionally, the claimant was diagnosed with PTSD by an evaluating psychiatrist, but his testimony established that the claimant’s complaints of depression and anxiety were due to a long-standing pre-existing condition dating back to 1976. He did opine that the claimant suffered from PTSD related to the events of “fright and excitement alone” rather than from any physical injury.
Despite the medical evidence and testimony outlined above, the First District Court of Appeal reversed Judge Lazzara’s denial of psychiatric care. The appellate court explained that the judge erred in finding an absence of medical evidence establishing a connection between the PTSD and a “minor physical injury.” In doing so, it appears that the appellate court disregarded prior appellate discussions and suggested that any type of physical injury might be sufficient to support a claim for psychiatric treatment. See McKenzie, 43 So. 3d 767.
See McKenzie, 43 So. 3d 767. The McIntosh case was remanded to Judge Lazzara for further findings. The seeming ambiguity of the ruling of the First District Court regarding whether there needs to be a separate “serious” injury or merely any type of physical injury was not developed any further because the carrier was found to have failed to deny the psychiatric claim within 120 days of the first afforded psychiatric care; therefore, Judge Lazzara held that they were estopped from a denial of psychiatric treatment. It appears that the appellate court was heading in the direction of holding that even a minor physical injury unconnected contemporaneously with a psychiatric condition would be sufficient to later support a psychiatric claim. It now appears that an employer/carrier must try to find a lack of objective evidence demonstrating a physical injury within reasonable medical certainty and timely issue a complete denial of a claim in order to be certain in its defense against a mental and nervous disorder claim.
Given the level of mental and nervous disorders across the country, the recent mass casualty shootings, the efforts at first responder PTSD legislation 5 and the erosion of the statutory law governing mental or nervous disorder claims in Florida workers’ compensation cases, it is likely that there will be an increasing trend towards more litigation over mental and nervous disorder claims in workers’ compensation matters with higher payouts. Although there is currently a six month statutory limitation on the payment of indemnity benefits following physical MMI under Fla. Stat 440.093(3), it is forecasted that the next attack on the Florida Workers’ Compensation statute, after first responder PTSD legislation, will be on this particular limiting provision as recent appellate decisions extending temporary indemnity benefits incentivize such litigation6.
1 National Institute of Mental Health, “Any Mental Illness (AMI) Among Adults” from http://www. nimh.nih.gov/health/statistics/prevalence/any-mental-illness-ami-among-adults.shtml, retrieved February 15, 2018.
2 National Institute of Mental Health, Science Update, October 17, 2016, “NIMH – Funded Study to Track the Effects of Trauma.”
3 National Institute of Health, “PTSD: A Growing Epidemic” Winter, 2009; some estimate that as many as 13 million people experience PTSD at any given time.
4 Castellanos v. Next Door Company, 192 So.3d 431 (Fla. 2016)(The Court ruled that claimant’s attorneys are entitled to recover fees based on the hours they invest in pursuing benefits on behalf of their claimants. The hourly rate awarded ranges from approximately $200 to $400 per hour. The result of the Castellanos case is that an attorney may obtain a fee that is substantially higher than the actual benefits obtained for the client being represented.)
5 See proposed Senate Bill 376 (2018), which revises the evidentiary standard for demonstrating mental and nervous injuries of first responders and deletes some limitations relating to workers’ compensation benefits for first responders. It also provides that law enforcement officers, firefighters, emergency medical technicians, and paramedics are entitled to benefits under the Florida Workers’ Compensation Law for mental or nervous injuries, regardless of whether such injuries are accompanied by physical injuries requiring medical treatment, under specified circumstances. See also comments by Tampa City Official, Luis Viera, http://www.wtsp.com/article/news/local/tampa-city-council-supports-ptsd-billfor-first-responders/502726212.
6 A claimant can be eligible for up to 260 weeks of temporary total disability benefits and 260 weeks of temporary partial disability benefits. See Westphal v. City of St. Petersburg, 194 So. 3d 311, 327 (Fla. 2016) (The Florida Supreme Court found the temporary total disability section of the statute in Fla. Stat. 440.15 unconstitutional and reverted back to the law as it existed in the early 1990’s which allowed for up to 260 weeks of temporary total disability benefits.); Jones v. Food Lion, Inc., 202 So. 3d 964 (Fla. 1st DCA 2016) (The 1st District Court of Appeal applied the Florida Supreme Court decision in Westphal to temporary partial disability benefits and also reverted back to the statute in the early 1990’s allowing up to 260 weeks of temporary partial disability benefits.).