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CALIFORNIA COMPENSATION CASES
Vol. 88, No. 9 September 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
Firefighting and law enforcement have long been recognized as two of the most stressful occupations. Each day on the job, firefighters and peace officers face unique and dangerous risks. They are frequently required to put their lives on the line to keep the public safe. As first responders, these safety officers may encounter horrific events that overtime can cause trauma-related injuries resulting in post-traumatic stress. Such occurrences aren’t limited to traffic accidents or home fires, which in and of themselves may be horrific. More often today firefighters and peace officers must respond to events like mass shootings and catastrophic wildfires. The occupational exposures that first responders face can precipitate a cascade of mental health conditions, such as Post traumatic Stress Disorder (PTSD). According to the National Institute of Mental Health, PTSD develops in some people who have experienced a shocking, scary, or dangerous event. People who develop PTSD may feel stressed or frightened even when they are no longer in danger. They may have flashbacks, nightmares, or frightening thoughts that become chronic and interfere with their relationships and/or work. Substance abuse and suicide are not uncommon in those with PTSD. (See https://www.nimh.nih.gov/health/topics/post-traumatic-stress-disorder-ptsd)
SB 542 PTSD rebuttable presumption
In consideration of the devastating impact that PTSD may have upon firefighters and peace officers, the California Legislature adopted Senate Bill 542, which was signed into law on October 1, 2019. Senate Bill 542 added Labor Code section 3212.15 to provide that in the case of specified active firefighters and peace officers, the term “injury” includes PTSD and if PTSD develops or becomes manifest during a period when the firefighter or peace officer is in the service of the department or unit, the injury is rebuttably presumed to arise out of and occur in the course of employment. The import of this presumption is that it shifts the burden to the employer to show that PTSD was not work related to deny workers’ compensation benefits. Labor Code section 3212.15 became operational on January 1, 2020 and is repealed as of January 1, 2025. Senate Bill 542’s Legislative Declaration explains the intended purpose of the bill as follows:
It is imperative for society to recognize occupational injuries related to post-traumatic stress can be severe, and to encourage peace officers, firefighters and any other workers suffering from those occupational injuries to promptly seek diagnosis and treatment without stigma. This includes recognizing that severe psychological injury as a result of trauma is not “disordered,” but is a normal and natural human response to trauma, the negative effects of which can be ameliorated through diagnosis and effective treatment. (Senate Bill 542, Chapter 390, Legislative Counsel’s Digest, October 2, 2019)
CHSWC’s research questions for RAND
With the repeal of Labor Code section 3212.15 set to occur on January 1, 2025, and to help guide future legislative actions on the PTSD rebuttable presumption of injury, the Commission on Health Safety and Workers’ Compensation (CHSWC) asked the RAND Corporation (RAND) to research the mental health effects that traumatic events in the line of duty can have on firefighters and law enforcement officers. CHSWC asked RAND to answer a series of specific questions including the following:
RAND’s mixed-methods study
RAND researchers conducted what they call a “mixed-methods study.” The researchers used a quantitative analysis of a vast array of survey and administrative data, which they combined with information gathered through semi-structured interviews about the experiences of individuals who used the workers’ compensation system to get treatment for job-related mental health conditions throughout California. The results of that study, First Responders Claims for PTSD in Workers’ Compensation: Assessing the Effects of Senate Bill 542 in California (Quigley, Dworski, Qureshi, Ashwood, O’Holleran & Meredith ) are revealed in a 200+ page report. The report meticulously discusses the types of data reviewed by the researchers, the study design, the technical advisory group that assisted with the study methodology, and the process by which the interviews were conducted. Findings are set forth along with candid disclosure as to limitations encountered. The report concludes with recommendations for further action.
The answers to some of the questions posed by CHSWC are surprising. For example, the incidence of PTSD and other mental health disorders in firefighters and peace officers appears to be less than the incidence seen in related non-governmental occupations such as EMT, paramedic and security officer. Curiously, although firefighters and peace officers exposed to a seminal catastrophic event like September 11, 2001 had fewer incidents of PTSD and mental health disorders immediately after the event than nearby civilians or other rescue personnel, these same firefighters and peace officers were shown in follow-up studies to have much higher levels of PTSD and mental health conditions than their civilian counterparts five to six years after the event. This finding caused RAND to speculate that perhaps a protective mechanism shared by firefighters and peace officers is a kind of resilience in the face of immediate danger that is greater than that of the general population. As RAND observes, a high percentage of first responders undergo extensive pre-employment screening for both psychological and physical limitations, which may lead to the selection of more resilient workers into first responder careers. Or the finding could be an indication of a more worrisome factor—that firefighters and peace officers are reluctant to acknowledge their symptoms and seek care. RAND did agree that future research on the incidence of PTSD should be a priority for further studies.
While an individual with PTSD is a risk for suicide, RAND was unable to provide unequivocal evidence that the incidence of suicide among firefighters and peace officers is greater than it is for the general population as a whole. In part this is because different methodologies have been used to conduct such studies. Several studies compared the proportion of first responder deaths due to suicide with that of the general population and found higher incidence of suicide deaths in firefighters and peace officers than workers in other occupations. However, other studies that have estimated the risk of suicide among firefighters and peace officers have not shown that workers in these occupations are more likely to commit suicide than workers in other occupations. One important caveat is with regard to the suicide mortality rate of women employed in “protective service” occupations. For these women, the risk of death by suicide was nearly double than that of women in other occupations. Unfortunately, the category, “protective service,” is broad and includes a large number of private security guards and others who are neither firefighters nor peace officers. Although RAND was unable to reach any firm conclusions with regard to the suicide risks of women first responders, it calls its findings troublesome and recommends further research. Additionally, RAND notes that a sizeable number of studies that have measured suicidality have found higher levels of suicidal ideation among first responders than workers in other occupations. Further research on this topic is also recommended.
Another interesting finding is that firefighters and peace officers are more likely to have claims involving PTSD than other California workers overall. However, when compared to their respective comparison groups, the rate of PTSD claims for peace officers is substantially the same, but for firefighters the rate of PTSD claims is more than twice as high. When RAND broadened its review to include anxiety and other trauma disorders, it observed that claim frequency for firefighters is similar to that of comparison occupations, although still higher than the rate for EMTs and ambulance drivers. Peace officers, on the other hand, have a lower proportion of anxiety and trauma disorders than those in comparison occupations. The vast majority of first responder mental health claims are filed during the term of employment; however, with regard to PTSD, there is a higher frequency of claims filed after the term of employment has ended. RAND hypothesizes that this finding might be explained by long delays between exposure, symptom onset and the decision to seek treatment.
How do employers respond to PTSD claims? RAND found that first responder claims for PTSD were substantially more likely to be denied than PTSD claims filed by workers in comparison occupations as well as those filed across all occupations. RAND characterizes these findings as “statistically significant,” but cautions that they are based on data for the period before SB 542 became effective. Without the presumption, PTSD claims faced a higher evidentiary bar. With the presumption now in effect, the claim denial rate may show a reduction in the coming years.
Interestingly, while first responder PTSD claims are denied about twice as often as are first responder claims for other presumptive conditions, the denial rates for first responder cancer and heart disease claims are actually much closer to the denial rate for PTSD claims. RAND speculates that this may be attributable to the fact that cancer and heart claims are more costly than other presumptive claims such as hernias.
RAND also assessed the types of indemnity benefits paid to first responders with PTSD claims. Approximately one-third of these claimants received temporary disability indemnity, which is nearly twice as high as the percentage of temporary disability indemnity paid to first responders with other presumptive claims. The researchers also found that first responder PTSD claims are more likely to result in the payment of permanent disability indemnity. In 26% of firefighter PTSD claims and 37% of peace officer PTSD claims the claimant received permanent disability indemnity. These percentages are higher than the percentage of permanent disability indemnity paid in other first responder presumptive claims and in all other injury claims as well. Similarly, RAND found that settlements were more common on first responder PTSD claims than on claims for other presumptive conditions and all other injury claims. RAND observes that this finding suggests that PTSD can lead to substantial work disability.
During interviews RAND conducted with first responders, the interviewees, without any prompting, said that stigma is a key barrier to seeking and receiving mental health care. The majority of these first responders agreed that their work culture is one that views the need to receive mental health care as a sign of weakness that creates a perception of inability to do one’s job. Many of the interviewees expressed fear of losing their job if they were to seek mental health treatment. Some also feared work consequences, such as an impact on the ability to be promoted as well as a negative impact upon relationships with their peers. This stigma appeared to be somewhat more pervasive among peace officers than firefighters.
RAND also examined the mental health and related resources provided by the departments and units included in the survey. Each department offers an Employee Assistance Program (EAP), which is typically the first point of treatment for workers with injuries. Many departments also provide additional resources, such as peer-to-peer support, wellness programs, mental health training, and PTSD specific support. Most first responders agreed that their employer’s EAP programs were not useful for a variety of reasons. Foremost, first responders cited the lack of cultural competence among EAP mental health providers. That is, the mental health providers affiliated with the departments’ EAP programs lack an adequate understanding of first responder culture, the unique stressors faced by first responders in the workplace, how those stressors can impact home life, and the appropriate interventions and treatments needed to facilitate recovery. Additionally, many EAP programs limit the number of available visits. Concern was also expressed about deficiencies in the confidentiality of EAP treatment.
Even in those departments that provide a vast array of mental health programs and services, the stigma associated with the need for mental health treatment and the lack of culturally competent providers continue to be barriers to seeking treatment. RAND notes that most first responders admitted that the culture within a department helps determine whether they will seek mental health treatment. The support of departmental leaders for mental health care can create a culture that facilitates care-seeking.
Another finding that RAND calls “troubling” is that nearly all of the first responders interviewed as part of this study paid for their own mental health care, whether they sought treatment before or after filing a claim, and few were reimbursed even if their claim was later accepted. The workers’ compensation claims process appears to both delay and prolong mental health treatment for first responders. Even if a first responder has been diagnosed with PTSD (or a related condition) by their mental health provider, some claims administrators insist on QME confirmation of diagnosis before accepting the claim and agreeing to pay for treatment. Since employer-sponsored health insurance will not pay for work-related treatment, many first responders end up paying for their mental health treatment out of pocket.
RAND observes that PTSD claims are more costly than the average workers’ compensation claim. Nonetheless, RAND admits that its estimates for the costs to local and state governments with SB 542 in effect are “highly indefinite” for several reasons. Foremost, there is uncertainty about the true incidence rate of first responder PTSD. Next, there is uncertainty about whether SB 542 will have any impact on the stigma associated with filing a mental health claim and seeking treatment. Finally, there is uncertainty as to whether SB 542 will have any impact on PTSD denial rates. With SB 542 in effect, RAND guestimates the costs to state and local governments could range from $48 million per year to $347 million per year. If SB 542 were to be applied retroactively, the annual costs for PTSD claims for the period 2017 through 2019 could amount to $79 million, but there is great uncertainty as to this estimate as well, RAND concedes.
Recommendations for further action
Without further legislative action SB 542 will be repealed in just a little over 3 years. What action should policy makers take? Should the presumption be extended or made permanent? RAND candidly admits that within the scope of this study it was unable to fully characterize the tradeoffs between additional costs imposed by SB 542 and the potential benefits (i.e., readiness of public safety agencies, budgetary savings from improved mental health of first responders, etc.) to make a firm yes or no recommendation. However, the results of the study highlight deficiencies in the evidence base that warrant further research. Foremost, RAND urges policy makers to commission a retrospective study closer to the expiration of SB 542 that revisits the questions examined in the study. Such a retrospective review will provide direct evidence on first responders’ mental health care seeking patterns, claim denial rates for PTSD and mental health conditions among first responders, and mental health claims costs for first responders with the presumption of SB 542 in place.
Additionally, RAND recommends a future qualitative examination to determine whether SB 542 achieved the legislative goal of reducing the mental health stigma among first responders. Along this same vein RAND suggests a representative survey of first responders to ascertain their awareness of the presumption, and for those who filed mental health claims, to determine whether knowledge of the presumption affected their decision to file a claim or seek mental heath treatment for job-related trauma.
Because RAND was unable to measure the cost impacts of PTSD associated with first responder turnover, training or early retirement, it suggests that an ex-post study be designed to measure these impacts and quantify their implications for the net costs of SB 542.
RAND makes two final recommendations for further inquiry. First, an examination of the types of evidence and additional information requested by claims administrators handling PTSD claims during the 90-day investigation period. Next, RAND suggests that CHSWC may want to examine the availability of mental health providers within MPNs and explore ways to provide first responders with more culturally competent mental health providers willing to accept workers’ compensation patients.
In view of study’s overall findings, these recommendations make good sense. Hopefully, the legislature will agree.
Special Note: As this article was being finalized for publication, a New York appellate court reversed a decision by that state’s Workers’ Compensation Board (Board) that denied benefits related to a firefighter’s PTSD claim. The firefighter’s treating psychologist diagnosed him with work-related PTSD based on the firefighter’s exposure to multiple horrific events during his 26 years of service, but the Board found the medical evidence lacking in specificity as to which events caused the injury. The appellate court disagreed, concluding that the evidence demonstrated a causal relationship between the firefighter’s employment and his documented PTSD by more thana mere possibility. (See, WorkcompWriter.com, December 29, 2021, for more details: http://www.workcompwriter.com/ny-firefighter-successfully-proved-ptsd-claim-based-upon-multiple-gruesome-incidents/) The case, Matter of Reith v. City of Albany, 2021 N.Y. App. LEXIS (3d Dept., Dec. 23, 2021) is a prime example of the obstacles faced by first responders in pursuing a PTSD claim, and are illustrative of factors that led to the enactment of California’s PTSD presumption.
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