Lawmakers Consider Expanding Workers’ Comp Coverage

Lawmakers Consider Expanding Workers’ Comp Coverage

Most states other than Florida have workers’ compensation programs that include Post Traumatic Stress Disorder coverage for first responders, and Senator Keith Perry (R-Gainesville) wants the Sunshine State to join the crowd.

In the wake of the Pulse Nightclub shooting, many first responders were diagnosed with PTSD because of the horrific scene at the nightclub. Because the current system does not include PTSD as a covered condition, these individuals had to return to work before they had fully recovered, which goes against the whole point of workers’ compensation insurance. Sen. Perry’s proposal limits PTSD coverage to first responders, and he says that the presumption against coverage is “very, very difficult” to overcome. Shortly after Sen. Perry’s action, Senator Vic Torres (D-Osceola and Orange Counties) filed a similar action that had a much broader scope. This measure has a lower burden of proof and eliminates the physical injury requirement. Jessica Realin, whose husband developed PTSD after the Pulse attack, applauded the move.

“I’m not naïve to not think we won’t have some kind of struggle to push this through,” she said. “But at the same time, I don’t think the state of Florida is ready to have a bunch of first responders picketing and protesting.”

Covered Illnesses and Injuries

Workers’ compensation plans vary by insurer, but a key requirement in all of them is that the injury occurs at the employer’s property and during work hours. Note that company-owned motor vehicles are property just like buildings and houses. There are two general categories:

  • Trauma Injury: The government estimates that over half of all construction deaths come from the “fatal four” of electrocutions, falls, struck by (e.g. a tool dropped from a height that lands on a victim) and caught between (as in elevator and lift accidents). Slip-and-fall injuries are also serious problems in many businesses with high traffic, like busy offices or retail outlets. Although it is not in the fatal four, motor vehicle collisions also cause significant injuries.
  • Occupational Disease: 22 million workers are exposed to potential hearing loss each year, making this category the most common occupational disease. Any other condition that takes more than one work shift to fully develop, such as back pain, repetitive stress disorder, and joint pain, also falls into this category.

Preexisting conditions are often an issue with occupational diseases, and in trauma injuries to a lesser extent.

Under the old law, preexisting conditions were usually covered 100%. Under the new law, injured victims have the burden of proof to show that the workplace injury was the major contributing factor to their illness. If the job injury was at least 51% responsible for the illness, workers’ compensation pays for the entire treatment regimen.

Trauma injuries usually fall under the eggshell skull rule, which means that such injury victims are entitled to full compensation even if they had some predisposition to that type of injury.

Workers’ Compensation Process

Quite frankly, the burdensome workers’ compensation process is designed to discourage victims from bringing claims, or at least encourage them to settle their claims for less than full value. So, a good workers’ compensation attorney is part legal advocate and part cheerleader.

At the first stage, a claims officer presides over a settlement conference that is normally based on the medical file and any written witness statements. The insurance company routinely contests both elements of the claim, viz, the incident occurred at work and the claimant suffered an injury. The insurance company can normally create enough doubt to get the claim denied, at least in part.

Most claimants must wait for several months before they reach the next stage – an adversarial hearing before an administrative law judge. The wait is normally worthwhile because claimants have a much better chance of success at this hearing because an attorney can present evidence, attack the insurance company’s case, and make legal arguments. For this reason, a number of claims settle on favorable terms between the first and second stages.

Suing Outside Workers’ Compensation

Workers’ compensation pays for economic damages like medical bills and lost wages. Most judgements and settlements are retroactive to the date of injury. In some cases, victims can sue outside the system and obtain compensation for noneconomic damages, as well. Such instances include:

  • Employer Recklessness: One common fact pattern is an employer who knows that a certain area is dangerous, either because of prior citations or prior complaints, sends workers back into the danger zone.
  • Defective Product: If the injury was even partially because of a dangerous product, the victim may be able to sue in civil court.

These noneconomic damages normally include compensation for loss of enjoyment in life, pain and suffering, emotional distress, and loss of consortium (companionship).

To learn more about the benefits available, contact Barnett, Lerner, Karsen & Frankel.