Earlier this month, the Florida Senate and House both unanimously passed Senate Bill 376, so as generally to allow workers’ compensation benefits for first responders who suffer PTSD as a result of their work. The coverage protection, which treats PTSD as an occupational disease, in spite of the fact that PTSD is typically triggered by a specific event, will be effective on October 1, 2018. Passage of the bill was seem by most to be a reaction to the tragedy surrounding the Marjory Stoneman Douglas High School shooting on February 14, 2018 in Parkland, Florida.
The legislation, the House version of which was sponsored by Representative Matt Willhite, who serves as a captain in the Palm Beach County Fire Rescue Department, will become law unless it is vetoed by Governor Rick Scott within the time allowed him under law. Such a veto is not expected.
The Bill’s “Fine Print”
The bill amends § 112.1815, Fla. Stat., by adding subsections (5) and (6). Under subsection (5)(A), the PTSD must be sustained or contracted in the course of the first responder’s employment, as provided in § 440.091, Fla. Stat., and must be diagnosed by a licensed psychiatrist who is an authorized treating physician as provided in Chapter 440, Fla. Stat. The bill requires that the PTSD be the sort of “posttraumatic stress disorder” that is described in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, published by the American Psychiatric Association.
Evidentiary Standard: Clear and Convincing Medical Evidence
In an apparent effort to narrow the scope of coverage at least a bit, the bill requires that the PDSD be demonstrated by “clear and convincing medical evidence” [B].
11 Qualifying “Events”
Additionally, the PTSD must be due to one of eleven “events.” Five of the events relate to injury or death by a minor. For example, where a first responder is called to an accident in which a minor has been killed, the incident qualifies. Similarly, if the first responder participates in medical treatment to a minor and the minor dies before or upon arrival at a hospital emergency department, the incident also qualifies.
Other qualifying “events” include “seeing for oneself” a decedent whose death involved “grievous bodily harm of a nature that shocks the conscience,” participating in the physical treatment of an injury, including attempted suicide, of a person who dies before or upon reaching the ER facility, again as long as the incident involves “grievous bodily harm of a nature that shocks the conscience.”
Shocking the Conscience: Objective Standard?
Five of the 11 qualifying “events” require that the victim’s death involve “grievous bodily harm of a nature that shocks the conscience.” The legislators apparently recognized that what might “shock” your conscience might not shock mine. Whose conscience controls? The issue will apparently be determined according to some sort of “objective” standard, since subsection (5)(f) directs the Department of Financial Services to adopt rules specifying injuries that qualify.
Mental Injuries, Including PTSD, Generally Not Compensable in Florida
For years now, Florida has been within the minority of states that refuse to provide workers’ compensation benefits for mental injuries unless they are directly related to a physical injury [see Larson’s Workers’ Compensation Law, § 56.06].
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.
§ 440.093(1), Fla. Stat.
Senate Bill 376 directly abrogates § 440.093 as to first responders who sustain PTSD [see § 112.1815(5)(A)].
No Coverage Beyond First Responders
The targeted legislation, of course, provides no coverage, of course, for the countless others who might encounter the grossly results of auto accidents, shootings, and terrorist attacks in the course of their own employment. I’ll comment on that disparate treatment in a subsequent post.