States across the country continue to propose and pass laws purported to provide first responders diagnosed with post-traumatic stress disorder with workers compensation coverage. However, these laws aren’t necessarily working as intended, and can leave first responders without care and municipalities struggling to cover the costs, experts say.
“If you’re listening to the first responders … they’re convinced that presumption is exactly what they’ve earned” but municipal workers comp pool managers will “tell you that presumption actually fails” in many ways, said John Hanson, an Atlanta-based senior consultant with Willis Towers Watson PLC.
“The cost is extraordinary,” he added. “The reality is that a large number of these claims … are all heavily litigated or arbitrated, and a really high percentage of these claims are not readily paid.”
On Oct. 1, California became the latest state creating a rebuttable presumption of a compensable mental health injury when Gov. Gavin Newsom signed S.B. 542, intended to provide workers compensation for firefighters and law enforcement personnel who sustain occupational PTSD. The law will apply to injuries on or after Jan. 1, 2020.
Maine, Minnesota, Oregon and Vermont have passed occupational presumption legislation for PTSD. Colorado, Connecticut, Florida, New Mexico, New Hampshire, New York, Nevada and Texas have passed legislation that makes PTSD diagnosis compensable for certain first responders. Some bills, like those in Florida and Connecticut, define exactly what types of traumatic events must be witnessed for the PTSD to be compensable.
Hawaii, Michigan, North Carolina, Tennessee, Virginia and West Virginia all introduced some form of first responder PTSD legislation at the beginning of the 2019 legislative session but none have become law.
Ohio had considered the addition of PTSD presumption for first responders, but the language was stripped from the 2019 budget by the state’s Senate until further study into the cost of the presumption can be conducted.
South Carolina created a fund to help first responders with out-of-pocket medical costs related to PTSD treatment.
According to the Substance Abuse and Mental Health Services Administration, an estimated 30% of first responders develop behavioral health conditions such as depression and PTSD, and firefighters and law enforcement officers have higher suicide rates than the general population.
This is where presumption laws aimed at providing care and paid leave under workers comp to first responders grappling with PTSD come in, but not all PTSD claims are viable and not all PTSD is caused by the first responder’s work, according to legal experts.
Rebuttable presumption legislation is driving up the cost of litigation by placing the burden on the employers and insurers to rebut cases, said Bert Randall, president of Baltimore law firm Franklin & Prokopik P.C.
That can include paying for independent medical examinations, detailed investigations into the claimant’s medical history and their exposures and more, which are “really costing employers and their insurers a lot of money.”
Minnesota’s PTSD presumption legislation, which took effect Jan. 1, applies to traumatic events that occurred after Jan. 1, 2013, so long as the first responder is diagnosed with PTSD according to the American Psychology Association’s 5th Edition Diagnostic and Statistical Manual of Mental Disorders.
“(The legislation) has flipped the burden of proof, and there are more cases being filed,” said Mark Kleinschmidt, partner at Mendota Heights, Minnesota-based law firm Cousineau, Waldhauser & Kieselbach PA. “It’s very difficult to figure out … objective measurements by which to say the person was exposed to a traumatic incident. You’re looking at a treatment cost that’s difficult to manage, and along with the treatment cost comes the period of disability … that might be longer than a physical injury.”
In California, state workers comp groups, as well as county, city and insurance associations, requested that the governor veto S.B. 542 due to a lack of information on the need of PTSD coverage and the financial impact it could have on the state’s compensation system.
“Without evidence that a problem exists or an analysis of the potential costs to local entities, especially considering the retroactivity, we don’t believe this legislation should be enacted,” the entities said in a letter sent to the governor in September.
The Boca Raton, Florida-based National Council for Compensation Insurance has also expressed its concern with presumption bills, noting the uncertainty of future losses given the potential latency of a presumptive claim, according to research briefs published by the ratings agency.
Although most of these PTSD laws limit coverage to firefighters, police officers and emergency medical technicians, other public workers and even some groups in the private sector are fighting for PTSD presumption coverage, said Desiree Tolbert-Render, Orlando, Florida-based assistant vice president, national technology compliance for workers compensation at Sedgwick Claims Management Services Inc.
“What you are seeing more are attempts to expand (coverage), she said. “For instance, in some states where they started out with firefighters and police, it’s expanded to include other state employees, correctional officers.”
That includes the private sector. California nurses and Connecticut private ambulance drivers have been lobbying to have PTSD preemptively compensable, said Ms. Tolbert-Render, and teachers have also argued why they may witness a tragic event — such as the school shooting in Sandy Hook in 2012 — but don’t have the same benefits as a first responder on the scene.
“If it keeps expanding, it’s probably going to end up being cost prohibitive,” she said.
Because the workers comp system “hinges on diagnosis,” it makes more sense to implement a suite of preventive resources for first responders exhibiting symptoms of PTSD vs. claiming through the comp system, which “wasn’t built” for addressing these issues, said Mr. Hanson.
“Some states that have the presumption have discovered that the volume of PTSD claims is far greater than they imagined,” he said. “There is a lot to PTSD that has yet to be revealed. If we create a presumption, have we opened the floodgates to potential catastrophic damage to municipal comp pools?”