Ok, it is probably time for a little rant. The Florida legislature is currently debating bills (HB 227 in the House and SB 376 in the Senate) that would provide Post-Traumatic Stress Disorder (PTSD) benefits for any first responders who witness or arrive at the scene of any murder, suicide, fatal injury, child death or mass casualty incident. The bill would cover “a mental or nervous injury, whether or not such injury is accompanied by a physical injury requiring medical treatment.” I am not opposed to caring for our first responders, nor am I unsympathetic to the potential trauma from the tragic things they must witness. I am opposed, however, to the blanket granting of benefits based solely on a job description or title. I think this effort may just well represent the old adage about the road to hell being paved with good intentions. Allow me to point out just how screwed up Florida's efforts may actually be.
For this we need to look no further than the recent tragic school shooting at Stoneman Douglas High School in Parkland, FL. The proposed legislation in Florida (if in effect today) would not provide benefits for mental injuries incurred by any teachers, teaching assistants, janitors or administrators who were inside the building and witnessed the carnage wrought by a psychotic madman. Those people, who had to return to the scene of the attack (if not the actual building) just a few days later and be surrounded by other survivors, currently are not eligible for workers' comp mental benefits, and this legislation would do nothing to change that.
However, the armed deputy who stood outside for four minutes, listening to the gunshots and doing nothing? The one who never entered the building? Why, this bill has him covered. As currently worded, he would qualify for workers' comp coverage, because he was there, and he is a first responder.
And his three deputy buddies who arrived a bit later and also failed to enter the building? They'd be good to go as well.
How about the Pulse Nightclub shooting in Orlando? Managers, bartenders and servers who were inside and managed to dodge the bullets while 49 people died around them would not be covered by this bill. But the driver of a firetruck who rolled up outside would be eligible for workers' comp mental health services.
Does that sound fair to you?
That is what happens when we react to emotional appeals and provide automatic presumptions based simply on a job title.
These bills are designed to change the language of FL 112.1815. It would alter the current wording, “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,” to “A mental or nervous injury involving a first responder and occurring as a manifestation of a compensable injury must be demonstrated by a preponderance of the evidence.” (emphasis added)
They completely strike the language, “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.”
The bill further modifies Section 440.093 of the Florida Statutes, largely by adding the following subsection:
(4) A law enforcement officer, a firefighter, an emergency medical technician, or a paramedic is entitled to receive benefits under this chapter for a mental or nervous injury, whether or not such injury is accompanied by a physical injury requiring medical treatment, if:
(a) The mental or nervous injury resulted while the law enforcement officer, firefighter, emergency medical technician, or paramedic was acting within the course of his or her employment as described in s. 440.091 and the law enforcement officer, firefighter, emergency medical technician, or paramedic witnessed, or arrived at the scene of, a murder, suicide, fatal injury, child death, or mass casualty incident; and
(b) The mental or nervous injury is demonstrated by a preponderance of the evidence by a licensed psychiatrist to meet the criteria for posttraumatic stress disorder as described in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, published by the American Psychiatric Association.
My biggest concern with this proposed change lies directly in subsection 4(a); which in part reads “or arrived at the scene of.” That is extremely broad and allows for the claiming of benefits even if no actual carnage is witnessed. You just have to be in the neighborhood. Perhaps it would be better if the proposed wording read, “or was directly engaged in the incident or aftermath of.”
And I hate to tell you, but it gets worse. First responders, to be eligible for benefits under this legislation, won't actually have to be at the scene of a horrific crime at the time the crime is happening or being processed. Because of the loosely worded construction of these bills, it is possible that any first responder that visits the scene of any murder, suicide, fatal injury, child death, or mass casualty incident, at any time after the fact could claim benefits under workers' comp should they develop PTSD. That means that a fireman driving by the Pulse Nightclub after the bill becomes law could claim trauma from the sight of the building. And it means that those Stoneman Douglas teachers, teaching assistants, janitors and administrators; people who have to go back into those buildings and work every damn day with reminders everywhere and no assistance in sight, will have to sit idly by and watch Deputy Hem-haw qualify for benefits if he returns to clean out his locker after the bill becomes law.
Because he is a first responder, damnit, and they quite frankly aren't.
Anything would be better than the unfair and ill-considered legislation our pols are about to unleash on its private citizenry; especially the private citizens who actually endured true trauma. It is even worse when we consider their trauma might have been enhanced by the inactions of those who could claim benefits if this legislation was in effect.
I understand that we respect our first responders, and as a society we want to take care of them. With the noted exception of the Broward County Sheriff's Department, they generally run towards trouble when others are running away. I also understand the complexity of trying to determine what should and should not fall under the realm of compensability in workers' comp. The conditions surrounding an incident should matter, and with this legislation, they simply don't.
And in our attempt to be fair to first responders, we are blindly slighting those they are supposed to be helping.
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Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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