Nearly a dozen states as of late January had introduced legislation to expand or enhance workers compensation benefits for employees who suffer mental injuries by presuming they are suffered in the course of work.
“The trend will continue,” said Brian Allen, Salt Lake City-based vice president of government affairs, pharmacy solutions, for Mitchell International Inc., a subsidiary of Enlyte Group.
Most of the bills apply only to first responders and propose changes to coverage for post-traumatic stress disorder, yet three separate bills filed last month in Virginia would expand the definition of mental injury beyond PTSD to include anxiety and depression for first responders. Two bills introduced in Connecticut would expand PTSD presumption to all workers who witness a “qualifying event” such as a death. A similar bill last year failed to gain traction.
Connecticut and Virginia also last month introduced bills that would expand the definition of first responders to include dispatchers. Connecticut lawmakers are also considering separate bills that would add several classes of workers to its PTSD presumption, including volunteers, police technicians, dive teams, K-9 search and rescue personnel, and video technicians who review and process police body camera footage.
Last year saw a similar surge in legislation aimed at making it easier to claim comp for mental injuries, with mixed results suggesting a slowing down of successful bills. In 2022, only three states enacted changes after more than 60 bills were introduced, according to two separate analyses by the National Council on Compensation Insurance. Optum Workers’ Comp and Auto No-Fault in 2021 published findings that over half of states had made changes to mental injury coverage in workers compensation since 2018.
Among the concerns of those who oppose such legislation are unknown costs.
Bruce Spidell, NCCI’s assistant actuary, said data on PTSD presumption claims is “scarce” and that each state’s presumption parameters are different, making it challenging to predict claim activity. “Every single (law) is different and there’s just not really a benchmark,” he said. “We just don’t know how much this is going to cost.”
Police and fire departments are typically self-insured, adding to the difficulty in gathering data on costs, he said.
The issue hit a roadblock for that reason in 2022 as California lawmakers aimed to expand a 2020 PTSD presumption law — set to expire in 2025 — to include dispatchers and several other classes of emergency response personnel.
California Gov. Gavin Newsom, in a Sept. 29, 2022, letter to legislators on why he would not sign such a bill, said that “expanding coverage of the PTSD injury presumption to significant classes of employees before any studies have been conducted on the existing class for whom the presumption is temporarily in place could set a dangerous precedent that has the potential to destabilize the workers compensation system going forward, as stakeholders push for similarly unsubstantiated presumptions.”
Mr. Allen said the uncertainty surrounding cost is the top issue. “You always try to look to figure out if we make this policy change, what is it going to look like five years from now, 10 years from now. What’s the upside? What’s the downside?”
The way many current laws are written, most first responders would qualify for coverage if they are diagnosed with PTSD, he said.
“Potential for abuse” is another issue, Mr. Allen said, referring to the possibility of PTSD claims being filed by those who are already retiring, resulting in higher benefits.
While opposition to such bills has typically been easy to come by, few municipal groups are speaking out. Calls and inquiries to several state groups that advocate for cities and other jurisdictions seeking comment were not returned.
Michelle Gowdy, executive director of the Virginia Municipal League, wrote in an email that the organization “continues to monitor this issue, but we are not in a position to comment at this time.”
The mental health of first responders is “a real issue out there,” Mr. Allen said. “The question is how do we approach it? How do we deal with it? What’s the appropriate way to cover it?”
Another key issue is that many of the laws and proposals stipulate that a first responder must experience a “qualifying event” to gain access to benefits.
While the language differs state to state most include witnessing or responding to death, including events involving multiple fatalities, and crimes and accidents involving children — all of which are events frequently experienced by first responders, said Mr. Allen, a former police officer.
And while the laws clear red tape for obtaining benefits for PTSD, many are rebuttable, and this issue is starting to show up in the courts.
The Minnesota Supreme Court on Dec. 21, 2022, ruled that a sheriff’s deputy is entitled to a presumption that his post-traumatic stress disorder is an occupational disease since he presented a diagnosis of PTSD, even though his employer offered a competing diagnosis of a “major depressive disorder.”
A Florida appellate court on Nov. 30, 2022, ruled that a police officer who filed a PTSD claim after responding to a school shooting was eligible for benefits because, while the incident happened before the 2018 change in state law that allowed such claims, his disability didn’t begin until he was placed on administrative leave months after the law was enacted.
The ruling, which would clear the way for similar claims filed based on qualifying events that occurred before the change in law, would expand eligibility to events that took place before 2018, said Robert Grace, a partner with Tampa, Florida-based law firm Bleakley Bavol Denman & Grace.
“I do believe the court got it right,” he said of the case.
Mental health bills weighed
Several states this year are considering legislation that would help manage the mental health of first responders.
Indiana lawmakers are considering a bill that would create a state-funded program to provide unspecified income and mental health services to first responders who have been involved in “a qualified critical incident” and would cover those who are diagnosed with post-traumatic stress disorder. The state is also considering a bill that would provide a first responder with 48 hours of leave immediately following a qualified critical incident.
In Missouri, lawmakers have proposed the First Responder Mental Health Initiative Act that would grant full access to behavioral health care services and treatment as “responsive to the needs of the individual and the professions of police officers, firefighters, emergency medical technicians, 911 dispatchers, and paramedics.”
In Florida, a bill would require an “employing agency of a first responder to pay for certain licensed counseling.”
Nebraska lawmakers are working on legislation to provide reimbursement for mental health examinations and resilience training for first responders.
And in Utah, lawmakers are seeking to expand access to mental health services — already provided to employed and retired first responders — to the spouses of retired first responders.
This article was first published in Business Insurance.
