State legislatures are addressing workers’ comp coverage for first responders with post-traumatic stress disorder.
- Kate Smith
- November 2019
FIRST RESPONDERS: Officials on the scene outside of Sandy Hook Elementary School in Newtown, Conn., where a gunman killed 26 people, including 20 children, before commiting suicide on Friday, Dec. 14, 2012.
AP Photo/Julio Cortez
The nightmarish scene played out on televisions across America—young children, crying and leading each other by the shoulders, as they walked single file out of Sandy Hook Elementary School in Newtown, Conn.
Inside the school, the scene was far more horrific—20 children, ages 6 and 7, lay dead in their first-grade classrooms. Six teachers and administrators were shot dead with them.
Stress and trauma are embedded in the job for first responders. But nothing could have prepared Newtown's first responders for the mass murder of their community's children.
In the wake of the shooting, the town's fire chief said the tragedy would stick with them “for weeks, months, the rest of your life.” The police union's attorney said afterward that they expected 12 to 15 officers to develop post-traumatic stress disorder (PTSD).
The Sandy Hook massacre brought attention to the issue of PTSD in first responders, which historically was not covered by workers' compensation unless accompanied by a physical injury. In the seven years since Sandy Hook, legislatures around the country have revisited workers' compensation statutes governing mental injuries for first responders.
“These bills really started popping up in the wake of the mass shootings,” said Fawn Racicot, associate actuary with the National Council on Compensation Insurance (NCCI). “As they've become more and more prominent, we've seen more and more of these bills. Connecticut was one of the first states to start proposing this type of legislation in the wake of the Sandy Hook tragedy. It's become a trend and really grown since then.”
In the first half of 2019, at least 26 states were considering legislation addressing coverage for mental-only injuries and eight states passed legislation addressing benefits for first responders with PTSD, according to the NCCI. Connecticut was among the states that passed new legislation.
The issue isn't going away, and the cause of trauma is not limited to mass shootings.
“Given the emergence of out-of-control wildfires, natural disasters and workplace violence, we are seeing more attention being paid to helping first responders who are impacted by these events,” Lisa Hicks-Moran, client services claims consultant for insurance broker NFP, said. “Because of these tragic and often horrific events, they suffer from PTSD in response to something that has occurred in the course and scope of their employment.”
Best's Review asked workers' compensation experts about the evolving coverage of PTSD in first responders. Weighing in were Racicot and Hicks-Moran, as well as Bruce Spidell, assistant actuary for the NCCI, and Florida-based attorney Karen Cullen, partner with Broussard, Cullen & Blastic.
PTSD and other mental injuries typically have not been compensable under workers' comp, unless accompanied by a physical injury as well. How is the landscape changing?
Spidell: Only half the states recognize mental-only injuries in the first place. When we wrote our research brief on this last year, we surveyed the state rules, and 23 [of 38] NCCI states recognize mental-mental. The other states don't recognize it if there's no physical injury.
Of the states that do recognize mental-only injuries, and PTSD would be a subset of that, only Maine, Oregon and Vermont give presumptive coverage to firefighters, police officers and other first responders. So Maine, Oregon and Vermont went above and beyond. They recognized PTSD as being compensable, and they would give first responders the presumption that it did arise from their employment. Recently, Idaho added PTSD as a compensable injury for most first responders, and other states, such as Florida, Connecticut have expanded coverage for PTSD for certain first responders.
Which of those two issues—compensability or presumptive coverage—are legislators considering?
Racicot: The two issues are linked together. For a claim to be compensable, there has to be a degree of proof showing the injury is work-related. That's where presumption comes into play. Even without a presumption in place, it could prove that a work injury is compensable, even if it's a mental injury, but it would likely be more difficult.
What's the benefit of having presumptive coverage? Does it presume the injury was caused by your job, rather than you having to prove it was?
Racicot: That's exactly it. If the presumption is a rebuttable presumption, it would effectively shift the burden of proof from the employee to the employer. Now the injury is presumed to be compensable, and the employer would have to prove that it's not in order for coverage to be denied.
Why are first responders the focus of these changes?
Racicot: Because of the type of work that police officers, firefighters, and other first responders are exposed to on a day-to-day basis, it can actually make it more difficult for them to overcome that burden of proof than it does for the general occupations.
I think that's an important aspect to understand, that some of these statutes are just trying to make it easier for first responders, because they may be at a disadvantage. That is, because they're exposed to a lot more trauma over the course of their day-to-day work, it could be argued that a certain event is not traumatic to the first responder since exposure to those types of occurrences are often an expectation of the job.
Because of the type of work that [first responders] are exposed to on a day-to-day basis, it can actually make it more difficult for them to overcome that burden of proof than it does for the general occupations.
National Council on Compensation Insurance
What are some of the notable new statutes or changes in the last few years?
Hicks-Moran: In 2017, two states in particular introduced legislation regarding the compensability for PTSD under workers' compensation. Texas House Bill 1983 [stated] Post Traumatic Stress Disorder in First Responders is compensable under workers' compensation if it is caused by an event occurring in the course and scope of the first responder's employment and the preponderance of evidence indicates that the event was a substantial contributing factor of the disorder. Vermont Senate Bill 56 provided presumption of compensability for first responders with PTSD and for other workers with certain work-related mental conditions.
In 2018, there were several more bills presented regarding first responders. Florida Senate Bill 376 revised the standards for determining compensability of employment-related PTSD under workers' compensation for first responders. New Hampshire Senate Bill 553 established a commission to study the incidence of PTSD in first responders and whether such disorder should be covered under workers' compensation. Washington Senate Bill 6214 added the presumption of coverage for PTSD as an occupational disease in certain situations for law enforcement officers and firefighters. California SB 542 proposed state legislation would compel agencies to grant policy and firefighters workers' compensation claims for PTSD.
In June, the Ohio House of Representatives passed a Bureau of Workers' Compensation Budget that included a provision allowing first responders to receive workers' compensation to treat PTSD. This provision, however, does require that the worker would have to prove that the PTSD was caused by the job.
When coverage isn't presumptive—as is the case in Florida—what sort of criteria must be established for first responders to gain coverage?
Cullen: First of all, you have to have a diagnosis of PTSD that meets the criteria under the DSM-5 [Diagnostic and Statistical Manual of Mental Disorders—5th Edition]. The diagnosis has to be made by a licensed psychiatrist, not a mental health counselor or therapist. The diagnosis must be due to at least one of eleven “qualifying events,” all of which involve witnessing death. A claim must be properly noticed within 52 weeks of the qualifying event.
What impact might these changes have on workers' comp?
Hicks-Moran: I think the biggest impact of PTSD claims are the costs. While I cannot pinpoint the exact costs associated with PTSD, a claim of this type has the potential to be very costly, especially if physical injuries are also associated with it [additional medical costs]. The focus must now be to provide care for both mental and physical conditions. If the PTSD work-related injury renders a person unable to return to any employment, then the injured employee may be eligible for lifetime indemnity benefits. There could also be continual medical and/or psychiatric visits, and medications prescribed.
In addition to the potential costs associated with a single PTSD claim, catastrophic events such as mass shootings or terrorist attacks can affect many workers simultaneously, which could result in a large number of PTSD claims from a single event.
If an employee is not working because he/she is treating for work-related PTSD, the employer incurs indirect costs such as overtime for existing staff or paying for temporary personnel to fill in during the injured employee's absence.
For whatever the cost is, as part of their job, our first responders are more frequently being confronted with sporadic and more dangerous work environments. How can we not see the impact of what they often must deal with in the course and scope of their jobs? I believe they are entitled to workers' compensation benefits if they develop a physician-supported diagnosis of PTSD because of a work-related incident.
Is there any sense of the potential costs or impact on rates?
Racicot: One thing to keep in mind is that these types of changes, although they could have a material impact for first responder class codes—for example, firefighters and police officers—on a statewide basis, the impact is often relatively small.
Also, given that a lot of the firefighters and police officers are part of the self-insured market, that data is not available to the NCCI. Given the limited amount of data available and associated uncertainty in the number and cost of such claims, it's something that we're not able to put a price tag on. Once information starts flowing through our historical data, we're able to see its impact better. We just really don't have sufficient data at this time.
Spidell: As Fawn said, for those classes affected, like the firefighters and police officers, once these laws are in place, any increase in compensable claims will work its way into the data.
Those classes may have a significant upward pressure on their costs, but as Fawn said, since the vast majority of workers are not impacted by these presumptive laws for first responders, on an overall basis, it's not a large impact on rates and costs.
Have insurers and self-insured communities supported or opposed these changes?
Hicks-Moran: Both. I believe that most people support our first responders and want to make sure they are taken care of in the event that they incur any type of work-related injury or illness. However, there is always going to be some opposition and concern for the costs associated with the risks involved with the work they do.
Workers' compensation is not cheap and one catastrophic claim can significantly affect an employer. First responders put themselves in high-risk situations every day and therefore are vulnerable to more frequent and severe injuries—including those that may result in PTSD—alone or in conjunction with physical injuries. Carriers generally do not like to take on that risk.
Cullen: Most of my clients are self-insured. This law substantially increases their exposure.
The first responders will tell you that their career is such that this is not something they want to acknowledge. They're taught to just deal with it and suggest that mental health issues have been brushed under the rug. So they look at this law as a way of raising awareness of the issue.
Certainly, in Florida, where we have had Parkland and the Pulse nightclub shooting, this statute may have brought more awareness to the fact that some first responders are struggling with PTSD.
Kate Smith is managing editor of Best’s Review. She can be reached at email@example.com.