Effective Date and Retroactive Application of New "First Responders" Bill
The new firefighters and other "first responders" bill which I wrote about here was signed by Governor Crist on June 8 and has now become Ch. 2007-87, Laws of Fla. It will be codified as s.112.1815, Fla. Stat.
- EFFECTIVE DATE
The bill does not provide for a specific effective date, only that it will take effect "upon becoming a law." Because the Governor approved this legislation on 6/8/2007, I believe that it became effective on that date. See Negron v. State (holding that when an act provides that it shall become effective "on becoming a law," it becomes effective immediately upon the Governor's approval).
- RETROACTIVE APPLICATION
Newly enacted statutory amendments always raise the question of whether they will have retroactive application, that is, whether they will apply to accidents which occurred before their effective date. The general rule, of course, is that statutory amendments are presumed to operate prospectively only unless a contrary intent has been expressed by the legislature. No such legislative intent appears here.
Nevertheless, only the "substantive" rights of the parties are governed by the law in effect on the date of the accident; burden-of-proof, or "procedural" enactments do operate retroactively.
In Seminole Co. Sheriff's Office v. Johnson, the Court previously held that a 2002 amendment to s.112.18, which expanded the presumption of compensability for heart disease from only "state" law enforcement officers to "any" law enforcement officer, as well as to "correctional officers," was retroactive. Therefore, perhaps it might be the case that the provision lowering the standard of proof in toxic exposure and occupational disease cases from the current "clear and convincing evidence" to a "preponderance of the evidence" could be retroactive.
I have a harder time believing that other portions of the enactment will be retroactive - for example, the provision which exempts first responders from the 1% limitation on psychiatric impairments, or the provision for the continuation in certain cases of PTD supplemental benefits beyond age 62.
And the second sentence of s.112.1815(2)(a)3 - which for the first time provides for the compensability of "mental or nervous injuries" without an accompanying physical injury - seems problematic. In theory, I would doubt that this provision would apply to an "accident" occurring before the effective date of the statute. But in the absence of some discrete physical trauma, it could be difficult establishing exaclty when the "accident" occurred. Under the "occupational disease" statute, the "date of accident" is when the condition becomes disabling - which is not necessarily the same date as when the condition was diagnosed. Therefore, the fact that a first responder may previously have been diagnosed with, say, depression, does not necessarily mean, in my opinion, that his "accident" occurred before the effective date of the statute. Of course, this hypothetical does raise questions about "major contributing cause," but I'll leave that for another time.
