Sandy Hook… Parkland… Las Vegas… Pittsburgh… incidents of mass carnage shock the country. Many workers are affected — first responders, school employees, venue staff. Some states have expanded their coverage for traumatic mental injury incurred on the job. They show that logic and leadership can lead to a more capable and responsive system of coverage.
The new laws may appear at first glance idiosyncratic… for instance by including artisanal-crafted language such as “shock the conscience” (Florida) and “repeatedly” exposed (Colorado). But some patterns to legal drafting emerge, suggesting barriers and solutions for expansion of coverage.
NCCI has noted an increase in interest. Healthesystems issued a paper describing medication and other treatment for post-traumatic stress disorder recently as well.
The end goal needs to be a stable, trustworthy process to determine what the mental condition is, if work caused it enough for coverage, and what treatment is appropriate. Anyone defending the status quo should be asked to explain why Sandy Hook, Parkland school teachers and administrators did not deserve coverage.
According to a law journal article by Ashley Bailey, in 2015 eighteen states then barred what is commonly referred to as mental stress claims unless the mental injury is linked to a physical injury. Nine states permitted mental stress claims with little or no restrictions. The remaining twenty-three states permitted mental stress claims with a qualification that a triggering event is either unusual and/or sudden.
As one reads some laws, delves into recent drafting histories, and listens to work comp people talk, one is struck by a pervasive tendency to treat mental stress as inherently foreign. Figuratively and sometimes literally, mental stress injury is typically recognized in a special sub-system, where coverage can be severely limited by type of worker and by arbitrary barriers.
Legislators might expand coverage for certain workers, such as first responders, but leave out teachers and corrections personnel. A new law in Florida was written outside the workers’ comp statutes and exclusively for first responders. Many states are still stuck on insisting a co-morbidity of a physical injury. That is from a scientific perspective analogous to requiring anyone who claims a back injury to also show an injury to another body part.
The majority of pertinent state laws were written decades ago. Mental injury definitions have been slippery, in part because the authoritative definer of mental conditions, the American Psychiatry Association, usually does not have unambiguous legal standing in state laws.
Mental stress includes traumatic mental injury. The classic definition of this type of injury is PTSD, which the APA most recently addressed in depth in 2013. Drafters of expanded mental stress coverage in workers’ comp tend to regard, and sometimes expressly refer to, the APA’s definition as the gold standard for any mental stress claim.
The APA’s 2013 definition refers to traumatic events and marked behavioral symptoms for making a correct diagnosis. This condition is very different from anxiety or depression in diagnosis and treatment.
Any state today can readily research the types of mental stress claims that have been accepted. It can inquire about the claims experience of other states with laws which it is thinking of emulating (or avoiding). It can make a reasonable estimate of how many accepted claims would have complied with the APA’s position.
In fact, this kind of research was performed by Pinnacol Assurance, the Colorado state fund, for its own claim history, as it met with others over legislation which ultimately passed in 2017. It found that among an average of about 68,000 claims, the annual mental stress claim frequency was about 100. The state of Minnesota examined the claim history of first responders (among all claims payers) and reported that for the roughly 17,000 first responders in that state there were on average about 20 mental stress claims each year.
Given the miniscule claim history in these two states, one might be as much concerned about under-claiming today than about the fear of a flood of meritless claims tomorrow if coverage were expanded.
The recent drafting histories of states such as Connecticut, Colorado, Florida, Minnesota and Vermont show legislators engrossed in trying to write (often revise) qualifications for coverage based on whether the event triggering the traumatic mental injury is unusual. Vermont had a rather telling requirement, which it removed, which stated that for first responders the triggering incident had to be unusual, not for any worker, but for the kind of work performed by the claimant (such as firefighting).
That since-removed tougher standard reflects a line of thinking which sometimes creeps in when people talk about an “unusual” qualification for receiving benefits. The thought is that some kinds of first responder jobs predictably absorb an amount of traumatic mental injury that does not qualify for workers’ comp coverage; that an award of traumatic mental injury demands an extraordinary event.
This seems to me to be the “assumption of risk” doctrine which the workers’ comp laws of the 1910s threw out. By analogy, one might as well demand that a dry wall installer demonstrate that he or she made an extraordinary overhead exertion in order that a shoulder injury claim be accepted.
There is change. Some states have stepped forward to bring their traumatic mental injury coverage into the present day. This makes it harder to excuse states that have not.
ABOUT THE AUTHOR
Peter Rousmaniere is widely known throughout the workers’ compensation industry, both for his writing and consulting experience. Based in the picture perfect New England town of Woodstock, VT, he is a regular on the conference circuit, and is deeply in tune with trends and developments within the industry. His passion is writing and presenting on issues largely related to immigration, and he maintains a blog on the subject at www.workingimmigrants.com.