Workers’ Compensation Coverage Now Includes PTSD for First Responders in Florida

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By Kimberly J. Fernandes, Esquire – Kelley Kronenberg

The aftermath of mass tragedies can have a broader impact than previously imagined before the dawn of social media and other electronic information platforms. Consider the nationwide debates and demonstrations initiated by the Pulse nightclub tragedy, the Marjorie Stoneman-Douglas High School tragedy, and the FIU bridge collapse. One lasting impact that has always existed but has rarely been given a platform for relief is the effect of these tragedies on first responders. In an effort to give a voice to this brave class of employees, the Florida Legislature has added certain workers’ compensation benefits to the law which are available to first responders in qualifying situations.

Senate Bill 376 was recently signed into law by Governor Rick Scott and, as of October 1, 2018, subsection (5) will be added to section 112.1815, Florida Statutes, to address PTSD conditions suffered by first responders.

In sum, medical and indemnity benefits are available for first responders diagnosed with post-traumatic stress disorder (PTSD) following involvement in certain tragic events in the line of duty. Until now, a first responder experiencing PTSD following a work-related event could only recover medical benefits associated with the mental injury under section 112.1815, Florida Statutes. An accompanying physical injury could provide entitlement to indemnity benefits as well, but with limitations. Now, as of 10/1/18, first responders may recover both medical and indemnity benefits for the sole diagnosis of PTSD without the need for an accompanying physical injury, if a few requirements written into the law are met.

First, the employee must be a first responder as defined by law, which covers law enforcement, emergency medical technicians, firefighters, and paramedics. Volunteer law enforcement officers and firefighters are included. First responders employed by state agencies, school boards, community colleges, counties, municipalities, special districts, and private entities are included.

Second, the first responder must witness a certain event listed in the law. For instance, the list includes natural disasters, serious accidents, terrorist acts, wars, combat, rape, or other violent personal assaults. The first responder must personally see or hear the qualifying event. Such qualifying events are further defined in the new law.

Third, qualifying incidents defined in the law include: seeing a deceased minor or witnessing the death of a minor, witnessing an injury to a minor who later died before or upon arrival at a hospital, physically treating an injured minor who later died before or upon arrival at a hospital, seeing the body of a person who died from grievous bodily harm which shocks the conscience, witnessing the death of a person involving grievous bodily harm which shocks the conscience (including suicide), witnessing a homicide, witnessing an injury causing grievous bodily harm which shocks the conscience and which causes death before or upon arrival at a hospital, physically treating an injury by grievous bodily harm which shocks the conscience and which causes death before or upon arrival at a hospital (including attempted suicide), and manually transporting a person injured by grievous bodily harm which shocks the conscience and which causes death before or upon arrival at a hospital (including attempted suicide).

Fourth, the first responder must be diagnosed with PTSD by a licensed psychiatrist who is authorized by the Employer to evaluate or treat the first responder. Proof of the PTSD diagnosis and its causal relationship to a qualifying event must be proven by clear and convincing evidence.

If all qualifications under this new law are met, medical and indemnity benefits will be available to the first responder and certain limitations on those benefits which exist in the workers’ compensation law will not apply to the first responder. For instance, the 1% permanent impairment rating limitation placed upon psychiatric injuries under Chapter 440 does not apply to injuries meeting the qualifications of this new law. A physical injury does not need to accompany a qualifying psychiatric injury in order to deem the psychiatric injury compensable under this new statute. Furthermore, the six-month limitation on temporary indemnity benefits for certain psychiatric injuries does not apply to injuries meeting the requirements of this new law. Finally, apportioning, or dividing, responsibility for an injury meeting the requirements of this law is not allowed.

All aspects of this new law have not yet been finalized. The Department of Financial Services has been given authority to promulgate rules which will define what constitutes “grievous bodily harm of a nature that shocks the conscience.” Those rules have not yet been written or promulgated, but tragic incidents which meet the requirements of the new statute are still going to occur regardless of when the rules are written. Based upon the nature of the job performed by first responders, it is difficult to imagine that any first responder will not witness a qualifying event under this law. The pivotal factor for the use of this new statute will be whether such events have a lasting impact on the first responder to the extent that effects can meet the diagnostic requirements of the law.

For questions or more information about the implementation of SB 376, contact Kimberly J. Fernandes, Esq. at [email protected] or 850.577.1301.

 

Kimberly Fernandes is a Partner at the law firm of Kelley Kronenberg in the firm’s Tallahassee office. Kim focuses her practice on the handling of Workers’ Compensation claims in both Florida and Georgia, and also serves as Director of the firm’s Appellate Practice Group and the Medicare Set Aside Practice Group.

Throughout her career, Kim has defended over fifty cases on appeal spanning a wide area of legal practice and has testified before the Florida Legislature on landmark workers’ compensation laws. She handles lien verification and resolution and all aspects of the MSA submission and approval process.

Additionally, she provides expert guidance regarding the Medicare Secondary Payer Regulation and alternative options for preserving threatened settlements.

Kimberly is certified by the state of Florida to provide Continuing Education courses for employers and insurance carriers and she regularly presents seminars regarding case law updates, indemnity offsets, MSA issues and other general workers’ compensation matters.

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