Greetings,

One of the things I am starting to see with the new world of fees is the rise of psychiatric claims.   Under the 1994-2003 law, psychiatric claims were often litigated as part of physical injury claims, and it certainly increased our exposure. The 2003 law had substantial changes and attempted to place limitations on psychiatric claims. 

Under 440.093, there must be a physical injury requiring medical treatment for a claimant to have a psychiatric claim.   However, in McIntosh v. CVS Pharmacy, 135 So.3d 1157 (Fla. 1^st DCA 2014), the claimant developed a compensable psychiatric injury (PTSD)  21 months after the accident.  So the connection can be fairly remote.

The 2003 law attempted to statutorily place the claimant at psychiatric MMI at 6 months after MMI for the physical injury (basically capping indemnity due to psych at 6 months after physical MMI, but no cap on treatment).  However, in the Roe and Sons case (attached), the 1^st DCA said the limitation only applies if permanent benefits are being paid.

“Thus, the six-month limitation on temporary psychiatric benefits is conditioned upon the payment of permanent benefits for the associated physical injury. This means the limitation does not apply unless permanent benefits are being paid. Because Claimant is not being paid permanent benefits, this statute does not apply here. Therefore, the JCC erred in applying it to limit Claimant’s TTD benefits.”

So, unless a claimant is getting either PTD or Permanent Impairment Benefits, the limitation applies, but then again they would not be getting either of those in most instances if they are not overall MMI, which would include psychiatric MMI.  The decision is pretty unclear in my mind, and the DCA declined a rehearing at that time to clarify.  In essence, the cap does not apply often.  

Even worse, psychiatric work restrictions are now a factor in PTD determinations: 

Sarasota County School Board v. Roberson, 135 So.3d 587 (Fla. 1^st DCA 2014)

The First DCA affirmed the JCC’s award of permanent and total disability, and specifically rejected the Employer/Carrier’s argument that the plain language of §440.15(1)(b) required the claimant to provide entitlement to PTD based solely on physical limitations.  The claimant had sustained a wrist injury after an altercation with a student.  Subsequently, the authorized treating orthopedic referred the claimant for a psychiatric evaluation, which the Employer/Carrier authorized.  The JCC rejected the “plain language” position of the Employer/Carrier, finding that the pre-1994 PTD standard allowed consideration of psychiatric limitations.  Further, the legislature’s six month limitation on temporary benefits based on psychiatric restrictions per §440.093 (3) does not extend to PTD benefits.  Lastly, the Court noted that Ferrell Gas v. Childers approved of the analysis of both physical limitations and vocational factors in determining PTD, therefore also contemplating consideration of psychiatric limitations.

So, I think we are going to see more litigation over psychiatric claims.  And these claims are difficult to defend.  We still have some teeth in the statute.  The condition must be demonstrated by clear and convincing evidence, a higher standard.   The 1% impairment rating cap on psychiatric claims still holds.  And the physical injury must be the MCC of the psychiatric condition.  It may be something where we have to fight the fight at the onset rather than trying to defend it as part of a PTD claim down the road

If any of you are taking the WCCP Board Certification class this year I look forward to seeing you next week.  I will be teaching the PTD section.  

Psych MMI Roe and Sons v Razo-Guevara

Sincerely, Morgan Indek | Partner