PRESENTATION: FLORIDA SB 376 AND THE RECENT CHANGES TO SECTION 112.1815
A Presentation to the Hillsborough County Bar Association, Workers Compensation Section by L. Gray Sanders, Esquire
May 21, 2018
On Tuesday, March 27, 2018, Gov. Rick Scott traveled to Tampa, only a few blocks from where we are having lunch today, to the Tampa Firefighters Museum. There, he attended a ceremony along with Chief Financial Officer (and State Fire Marshal) Jimmy Patronis, Attorney General Pam Bondi, and several legislators. The point of the ceremony was for the governor to sign into law Senate Bill 376, which he did. With his signature, the changes go into effect as of October 1, 2018.
Of note, SB 376 cleared every single committee (Banking and Insurance, Commerce and Tourism, Appropriations, and Rules) without a single dissenting vote. It then was passed unanimously by the Senate (33 yeas, 0 nays – 03/03/2018) and by the House (114 yeas, 0 nays – 03/05/2018).
So, in our time of political faction and discord, what was this change in the law which garnered such widespread and bipartisan support – which in fact, faced literally no opposition? The change was to Section 112.1815, Florida Statutes, and it allows first responders who meet certain conditions to access both medical and indemnity benefits for PTSD without any accompanying physical injury.
As a start, we must acknowledge Section 440.093, Florida Statutes, which applies to all non-first responders:
(1) 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 this chapter.
Further, this same provision requires proof of “mental or nervous injuries” to “be demonstrated by clear and convincing medical evidence by a licensed psychiatrist meeting criteria established in the most recent edition of the diagnostic and statistical manual of mental disorders published by the American Psychiatric Association.” See, Section 440.093(2), Florida Statutes. The law also limits the duration of temporary benefits for a compensable mental or nervous injury (which meets the necessary physical injury threshold) to no more than six months after the employee reaches maximum medical improvement. See, Section 440.093(3), Florida Statutes.
Often, psychiatric injuries arise absent any physical injury. These types of injuries are referred to as “mental-mental” injuries because they are caused by a purely mental stimulus which leads to psychiatric injury, such as depression or post-traumatic stress disorder. For example, the stimulus could be experiencing (or witnessing someone experience) a particularly horrific accident, workplace incident, or crime scene, without any physical injury. Psychiatric injuries arising from physical trauma are known as “mental-physical” injuries.
While Section 440.093 remains in full force and effect for the vast majority of workers across the state of Florida, SB 376 reflects a continuing exception created for first responders. This change first began in 2007 when the legislature amended Section 112.1815 to allow first responders to obtain medical benefits only for post-traumatic stress disorder without accompanying physical injury. However, first responders still were precluded from obtaining indemnity are lost wages for PTSD.
A “first responder” is a law-enforcement officer, as defined by statute (s. 943.10), a firefighter (s. 633.102), or an emergency medical technician or paramedic (s. 401.23), employed by state or local government. Further, a volunteer law-enforcement officer, firefighter, or emergency medical technician or paramedic engaged by state or local government also are considered first responders.
Under the new version of 112.1815, first responders suffering from PTSD ( of note, only PTSD and no other psychiatric diagnosis) will be covered by Chapter 440 (and the State Retirement System) even absent any physical injury so long as two conditions are met:
- The PTSD resulted from the first responder acting within the course of his or her employment as provided in s. 440.091; and
- The first responder is examined and subsequently diagnosed with PTSD by a licensed psychiatrist who is an authorized treating physician as provided in chapter 440 to one of the following events:
- seeing for oneself a deceased minor;
- directly witnessing the death of a minor;
- directly witnessing an injury to a minor who subsequently died before or upon arrival at a hospital emergency department;
- participating in the physical treatment of an injured minor who subsequently died before or upon arrival at a hospital emergency department;
- manually transporting and injured minor who subsequently died before or upon arrival at a hospital emergency department;
- seeing for oneself a decedent’s death involved grievous bodily harm of a nature that shocks the conscience;
- directly witnessing a death, including suicide, that involved grievous bodily harm of a nature that shocks the conscience;
- 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;
- 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;
- 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
- manually transporting a person who was injured, including by attempted suicide, and subsequently died before or upon arrival at the hospital emergency department if the person was injured by grievous bodily harm of a nature that shocks the conscience.
The diagnosis of PTSD still must be demonstrated by clear and convincing medical evidence. Further, once the diagnosis under this new provision is established:
- Benefits are not subject to “apportionment” due to any pre-existing PTSD;
- Benefits are not subject to any limitation on temporary indemnity per 440.093;
- Benefits are not subject to the 1% limitation on permanent psychiatric impairment under 440.15(3).
The new law does establish certain deadlines. First, the time for notice of injury (or death) in cases of compensable PTSD is “the same as in s. 440.151(6)” — thus, the legislature specifically construed this extension of 112.1815 to be an “occupational disease.” Under Section 440.151(6), the requirement is:
(6) The time for notice of injury or death provided in s. 440.185(1) shall be extended in cases of occupational diseases to a period of 90 days.
Of significance, the legislature specifically included language on when the notice clock begins. The time for notice “… Is measured from one of the qualifying events listed… or the manifestation of the disorder, whichever is later.” See, Section 112.1815(5)(d), Florida Statutes (2018).
Also, a claim under the section is barred unless it is “properly noticed within 52 weeks after the qualifying event.” See, Section 112.1815(5)(d), Florida Statutes (2018).
Some other items of significance include definitions which conclude the amended portion of Section 112.1815:
- “Directly witnessing” means to see or hear for oneself.
- “Manually transporting” means to perform physical labor to move the body of a wounded person for his or her safety or medical treatment.
- “Minor” has the same meaning as in s. 1.01(13) [Note: Section 1.01 (13), Florida statutes defines a “minor” as any person who has not attained the age of 18 years.]
First, the coverage for PTSD now set forth in Section 112.1815 is significantly narrower than the diagnostic criteria for posttraumatic stress disorder (309.81) set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) of the American Psychiatric Association. For instance, the DSM-5 includes “exposure to actual or threatened death, serious injury…” The DSM-5 also includes “learning that the traumatic event(s) occurred to a close family member or close friend.”
Second, although the notice requirement was extended for a period up to ninety (90) days, a diagnosis of PTSD cannot be established until the necessary symptoms have existed “more than one month.” Thus, a claimant likely will have sixty (60) days at most to bring notice of the condition. Also, diagnosis of PTSD often occurs long after the triggering event or even the onset of symptoms.
Also, it’s worth mention that this change in the law only applies to “mental-mental” injuries and only for PTSD. Psychiatric conditions arising from physical trauma (“mental-physical”) are not affected and still may be established under 440.093, Florida Statutes.
Last, a word on projected costs. The National Council on Compensation Insurance estimated the fiscal impact of SB 376 on Florida’s workers compensation system to be approximately 0.2%, or approximately $7 million. At first glance, that would seem to be low. PTSD claims are typically reserved by carriers in the six digits ($200,000 reserves for medical-only PTSD claims are not unusual). Further, the DSM-5 specifically notes:
PTSD is associated with high levels of social, occupational, and physical disability, as well as considerable economic costs and high levels of medical utilization. Impaired functioning is exhibited across social, interpersonal, developmental, educational, physical health, and occupational domains. In community and veteran samples, PTSD is associated with poor social and family relationships, absenteeism from work, lower income, and lower educational and occupational success. (DSM-5, pp. 278 – 279.)
With indemnity included, one would not be surprised to see a PTSD claim reserved at a minimum of $200,000; if so, more than 35 claims statewide would exceed the estimated costs by NCCI.