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By Robert J. Grace, Jr., Esq. & Lyle Platt, Esq.
Since publication of our last edition of Dubreuil’s Florida Workers’ Compensation Handbook (LexisNexis), legislative activity was confined to a popularly supported bill regarding first responders. HB227/SB376 was signed into law in March 2018 after both houses passed it unanimously. Existing Florida law provided that injured workers are not entitled to workers’ compensation benefits for mental or nervous injuries unless also accompanied by a physical trauma. Given the recent tragedies involving the Pulse Nightclub in Orlando and Marjorie Stoneman Douglas High School in Parkland, it is not surprising that the legislation was unanimously supported. The new law provides that post traumatic stress disorder (PTSD) is a “compensable occupational disease” if it resulted from the first responder acting within the course and scope of employment. Also required is for the first responder to be examined and diagnosed by a licensed psychiatrist who is an authorized treating physician. Eleven specifically described traumatic events are listed in the statute that qualify for coverage. There is, however, a heightened burden of proof requiring clear and convincing evidence. Not only is physical injury not required but benefits are not subject to apportionment, the limitation of temporary benefits in §440.93 or the one percent limitation on permanent psychiatric impairment under §440.15(3). The Department of Financial Services has been tasked with adopting rules specifying injuries qualifying as grievous bodily harm of a nature that shocks the conscience.
While there may have not been any blockbuster cases out of either the First District Court of Appeal or the Florida Supreme Court, significant clarification was provided to attorneys and claims professionals. The misrepresentation defense in §440.105(4) is often criticized by both sides as either being not strong enough or being too broad. Since our last publication the controversial case of Cal-Maine Foods/Broadspire v. Howard, 225 So. 3d 898 (Fla. 1st DCA 2017) was issued. In Howard the JCC determined after a trial that the claimant had committed multiple misrepresentations but declined to bar receipt of workers’ compensation benefits because the misrepresentations were moot and not committed for the purpose of obtaining workers’ compensation benefits. The First DCA disagreed and reversed the JCC in reaffirming that a violation of §440.105(4)(b) requires a two-part inquiry: “1) a finding as to whether a false (or fraudulent or misleading) oral or written statement was made by the person; and 2) a finding as to whether, at the time the statement was made, it was made with the required intent”. Significant, however, was the pronouncement that the misrepresentation did not have to be material in actuality. The court reminded the JCCs that the relevant inquiry was whether a claimant’s representation was made with the intent to secure benefits. Such statements need not be under oath as long as the claimant knew at the time the statements were false.
Another clarifying decision was Teco Energy, Inc. v. Williams, 234 So. 3d 816 (Fla. 1st DCA 2017). In Williams the First DCA was faced with the application of major contributing case as it relates to preexisting conditions and the 120 day rule. The court again reminded practitioners that a preexisting condition becomes relevant in a major contributing cause analysis when the condition independently required treatment either before or after the compensable accident. Further, such analysis is not limited to whether the claimant was undergoing medical treatment with the physician before the compensable accident but rather is there medical evidence that the preexisting condition is the major contributing cause of the need for the requested treatment. Also reasserted by the First DCA was the rule of law that the 120 day rule is an affirmative defense and must be timely and specifically pled by the claimant and may not be raised sua sponte by the JCC.
© Copyright 2018 LexisNexis. All rights reserved. This article is reprinted from the upcoming 2018 edition of Dubreuil's Florida Workers' Compensation Handbook.