More than half the states have legislated presumption bills that make workers compensation claims from post-traumatic stress compensable for first responders. Often when there is a particularly traumatic event, such as the 2018 school shooting in Parkland, Florida, a state will enact laws that presume a causal connection between the event and those who witnessed it and now suffer from post-traumatic stress injury or disability (PTSD). Many states have now enacted PTSD presumption laws for first-responders, four more states just in the first week of February. “With COVID, people are more amenable to the idea that mental injuries are a problem than (they have been) in the past,” said Tom Howard, an attorney at workers compensation firm Gerber & Holder LLP in Atlanta, told Business Insurance. But it’s not just first responders who are prone to PTSD. Anyone in almost any job can get it.
Who Can Get PTSD?
According to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-V), PTSD is a cluster of symptoms that happen after someone is exposed to actual or threatened death, serious injury, or sexual violence. Some examples cited on the website NOLO of workplace situations that might give rise to a PTSD claim include when:
A police officer, firefighter, EMT, or other first responder must deal with a particularly horrific or gruesome accident or scene of violence,
A teacher witnesses a school shooting,
An office supervisor is held hostage by an armed former employee who has decided to take revenge for a firing, and
A construction worker observes an unusual accident in which a co-worker dies.
People with PTSD re-experience the original trauma in the form of nightmares, flashbacks, upsetting memories, and emotional distress or physical responses to any reminders of the original event. They also have a range of symptoms from depression and anxiety to difficulty concentrating or sleeping.
For a state-by-state breakdown of PTSD benefits go to: Workers’ Compensation for PTSD: Which States Offer Benefits? (gerberholderlaw.com) https://tinyurl.com/ys8e6tdt
PTSD is a Mental-mental Injury
Since PTSD is a mental-mental injury, it’s hard to pin down and consequently many states don’t cover it, which is why state legislatures feel they need to pass laws to get it covered. We say that PTSD is mental-mental claim as compared to a physical-mental claim where work has caused the mental injury. For instance, where a back injury causes a sleeping disorder. A physical injury has resulted in a mental problem. With PTSD, causation and injury are both mental.
Workers comp mental-mental injuries like PTSD are handled by states three different ways basically:
• Many states cover mental-mental injuries only if caused by extraordinary events. According to the website NOLO, in Nevada these events are covered only when caused by “extreme stress in time of danger” as a part of an employee’s work, although coverage for first responders has been legislated to be broader. In Arizona, the event causing PTSD must be from “unexpected, unusual or extraordinary stress.”
• Other states will not allow work-related psychological claims unless accompanied by a physical injury. Again, exceptions exist for first responders.
• Some states, like California, allow mental-mental claims from work-related stress, “even if gradual and not unusual for the job.” However, other conditions must be met. In California this means at least 51 percent of the psychological injury must be work-related and a minimum period of employment of at least 6 months prior to the injury.
Opponents of Presumption Laws
Opponents argue that presumption laws place the burden on the employer and insurer to prove that the psychological injury was not work-related, making it easier for workers to file successful claims. They have raised concerns that these policies will increase insurance costs for employers at a time when businesses are already facing significant financial challenges.
At this point, however, fears about excessive cost seem premature. Florida, which has had a presumption in place since 2018, is among the first to publicly release data on costs. Since expanding workers comp coverage for mental health costs, the state has paid out approximately 50 claims for $2.1 million total, or $42,330 per claim, according to the Department of Financial Services
The National Council on Compensation Insurance in its study of mental health claims for first responders found the group accounted for approximately 1.6% of privately insured costs for mental treatment, with most states showing a range of 0.5% to 3.0%.
For more information or help, contact the Insurance professionals of EPIC’s CRA ProRental™ Insurance Program. Call us at: 800.234.6363.
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