By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
For readers who may not be familiar with the Workers’ Compensation...
The U.S. Department of Labor has issued new data showing California's State Average Weekly Wage (SAWW) edged down 0.48 percent from $1,650 to $1,642 in the 12 months ending March 31, 2023. As a result...
CALIFORNIA COMPENSATION CASES
Vol. 88, No. 11 November 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...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
Nearly two decades ago Senate Bill 899 was enacted and ushered in a...
LexisNexis has selected some recently issued noteworthy IMR decisions that illustrate the criteria that must be met to obtain authorization for a variety of different medical treatment modalities. LexisNexis...
As I peer back over my 43 professional years within the world of workers’ compensation law, particularly the most recent 33 years that I’ve spent working on the Larson treatise, I continue to marvel at how societal issues are so quickly reflected in the framework for handling occupational injuries and illnesses. Whether it is the struggle to deal adequately with persons who come to our land from outside our borders, or the difficulty in classifying workers who provide services within the “gig economy,” or the human cost of the opioid crisis, the questions that dominate our society at large quickly begin to have a strong impact within “our” workers’ compensation world. “Our world” is very much a mirror for what’s going on in America.
And so it has been with the recent phenomenon of mass shootings and other deadly incidents within the United States. Numbers of state legislators (and others), apparently feeling impotent in the face of the tragedies themselves, have stepped forward to provide special work-related benefits for those among us who are charged with initially responding to the mayhem. The work of first responders can be strenuous, grueling, heart-wrenching, not to mention dangerous. One can, therefore, hardly blame state houses for saying, “Thank you,” with favorable legislation. As pointed out below, the legislation produces challenges as well.
During the past year or so, at least seven states have enacted special laws providing workers’ compensation benefits for PTSD that is contracted by firefighters, police officers, EMTs—sometimes even parole officers—who serve the public [readers should note that because of our production schedule my statutory research period ended August 1, 2019].
The recent push to extend special coverage for PTSD for first responders began last year in Florida. The Sunshine State, as is also the case in about a dozen other states, does not provide workers’ compensation benefits for so-called, “mental-mental” claims like PTSD [see Larson's Workers' Compensation Law, § 56.04, et seq.]. Yet, on March 27, 2018, Governor Rick Scott signed a new law providing relatively broad PTSD coverage to the state’s first responders. The legislation had passed both houses unanimously, so there was little surprise that the Governor quickly signed the measure into law.
The legislation was a response to the February 14, 2018 school shooting at Marjory Stoneman Douglas School in Parkland, Florida. Some Floridians noted a bit of irony in the Legislature’s knee jerk reaction since the cautious handling of the violent incident by some county sheriff’s officers was criticized and some in and around Parkland questioned who had actually been the “first responders”—teachers and school administrators—or the police? Florida legislators had not been quick to act following the shooter’s rampage at Pulse, an Orlando nightclub, in June 2016, when a gunman killed 49 and wounded at least 53. As discussed below, Florida’s first responders—who almost always receive special training to deal with traumatic events—now have benefits for PTSD. Teachers, bartenders, restaurant employees, truck drivers, indeed, everyone else does not.
In mid-2018, legislatures in the state of Washington also reacted to the carnage in Parkland, Florida and elsewhere. The lawmakers amended RCW 51.08.142 to provide for a rebuttable presumption of compensability for certain PTSD claims filed by first responders. The lawmakers tempered the law, however, by limiting use of the rebuttable presumption to eligible first responders who have been on the job for at least ten years. Otherwise, a first responder with PTSD may still seek recovery for the condition as an occupational disease. He or she would not be favored with the presumption, however.
Similar in many details to the Florida law, the Connecticut statute [see SB 164, Public Act 19-17] amended the state's Workers' Compensation Act to allow police officers, municipal constables, parole officers, and firefighters—both paid and volunteer—to receive limited workers’ compensation benefits for PTSD. Governor Lamont signed the new law into effect on July 10, 2019. In order to be eligible for benefits, a board-certified mental health professional, psychiatrist or psychologist who has experience in the diagnosis and treating of PTSD must make the diagnosis consistent with the most recent edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM”). The first responder must also have experienced a “qualifying event,” as defined by the statute. Moreover, the role of the qualifying event in causing the PTSD must be viewed as a substantial factor.
in March 2019, Idaho joined the number of states who provide special benefits for PTSD as long as the employee is a first responder. Like Florida, Connecticut, and a number of other states, Idaho has in the past provided no mental-mental coverage. In February 2019, the Idaho Senate and House passed S.B. 1028, which provides benefits for post-traumatic stress disorder for first responders if they can prove their mental injury was related to an event experienced on the job. Under the new provision, the first responder must be “examined and subsequently diagnosed with post-traumatic stress injury by a psychologist” or similar medical professional. The first responder must also establish, by “clear and convincing evidence” that the PTSD was caused by “an event or events arising out of and in the course of the first responder's employment.”
Earlier this year, the New Hampshire legislature modified the definition of “injury” contained in NH RSA 281-A: 2(XI) so as to provide coverage of PTSD and PTSD-like conditions for first responders. If the worker meets the definition of “emergency response/public safety worker,” the term “injury” or “personal injury” shall also include acute stress disorder and post-traumatic stress disorder. Prior to this amendment, emergency response/public safety workers were required to demonstrate a physical manifestation of the PTSD or acute stress disorder. For employees other than emergency response/public safety workers, the law remains unchanged; injuries shall not include diseases or conditions resulting from stress without physical manifestation. Moreover, the definition of “emergency response/public safety worker” has been amended to include “emergency communication dispatchers.” The new law is effective July 17, 2019.
In early April, 2019, New Mexico Governor Grisham signed a new provision (H.B. 324) into law pursuant to which workers compensation benefits will be provided to firefighters suffering from post-traumatic stress disorder whose condition results in physical or mental impairment and/or death. Like most other versions of the PTSD legislation, a firefighter must be diagnosed with PTSD by a physician or psychologist to qualify for benefits. Prior to the new law, PTSD was not recognized as a compensable condition. Note that the legislation does not favor other first responders.
In the Beaver State, ORS 656.802 was amended to provide a presumption of compensability for diagnosed PTSD or Acute Stress Disorder sustained by first responders (defined as a full-time paid: firefighter, emergency medical services provider, police officer, corrections officer or youth corrections officer, emergency dispatcher or a 911 emergency operator, or parole and probation officer). Some critics of the bill have said it too broad—providing coverage for probation officers, for example, whose job duties do not ordinarily require the sorts of responses required of police officers, firefighters, and EMTs.
A number of states also expanded cancer coverage for public safety employees—usually firefighters. For example, in early May 2019, Florida Governor DeSantis signed into law SB 426. The bill, which like the PTSD bill mentioned above, had passed both legislative houses unanimously, provides firefighters with coverage for 21 specified types of cancer. To gain recovery, a firefighter must have served full time for at least five years and have been tobacco free for that same time period.
A single workers’ compensation-related bill passed during the 2019 session of the Maryland legislature, but it added additional assistance to public safety employees. The provision adds bladder, kidney, or renal cell cancer to the types of cancer that are considered occupational diseases suffered in the line of duty for public safety employees, specifically firefighters.
In July 2019, the New Jersey legislature passed a bill expanding occupational disease coverage for the state’s public safety employees. The law provides for a presumption of compensability for firefighters under the age of 76, who develop most forms of cancer, including leukemia, as long as the firefighter has served more than seven years. Police officers who contact a serious communicable disease or related illness are favored with a presumption of compensability as well. Legislators pointed out that this section of the law is intended to make it easier for public safety workers who are exposed to body fluids, pathogens, and biological toxins to gain benefits.
The newly enacted Barry Brady Act, named for the 25-year veteran of the Sparta Fire Department who died from colon cancer earlier this year, grants firefighters a rebuttable presumption that any condition or impairment of health caused by all forms of Non-Hodgkin’s Lymphoma cancer, colon cancer, skin cancer, and multiple myeloma cancer that results in hospitalization, medical treatment, or any disability has arisen out of employment.
Senate Bill 2551, effective June 10, 2019, provides that a firefighter or EMT suffering from cancer resulting in death or disability is presumed to have developed the cancer while in the course and scope of employment if the worker regularly responds to scenes involving the documented release of radiation or “known or suspected carcinogens.” Cancers that are presumed to be “occupational” are cancers that originate in the stomach, colon, rectum, skin, prostate, testes or brain, non-Hodgkin’s lymphoma, multiple myeloma, malignant melanoma, and renal cell carcinoma. The new law additionally allows self-insureds to establish a pool for the payment of death benefits to first responders with compensable injuries.
Several other states considered measures that would particularly benefit first responders. For example, California’s SB 416 would expand police presumptions for cancer, heart issues, hernias, and other police-centric medical issues to more classes of police officers. SB 542 would create a presumption that all PTSD sustained by safety officers is work-related. The law would sunset, however, in 5 years. While Gov. Newsom has shown support, the definitions contained within the bill have recently been narrowed to cover fewer mental injury claims. Coverage for PTSD only is likely to remain within the bill. AB 346 would apply section 4850 to school police officers. However, legislative prognosticators say the high costs of this change will likely doom the bill.
Kentucky House Bill 40, which would provide workers’ compensation benefits for PTSD, but only for certain specified first responders, was introduced into the Kentucky legislature on January 8, 2019. Currently, the Bluegrass State provides no benefits for work-related mental or psychological injuries unless they are accompanied by a physical injury. The bill would have ignored PTSD conditions within the general workplace population. No further legislative activity, however, has been taken.
An Ohio colleague advised me that while Governor DeWine signed into law provisions containing the Bureau of Workers’ Compensation budget in July, missing from the legislation was a hoped-for provision recognizing PTSD as a compensable injury for public “safety first” responders (police, fire, EMTs) without the showing of a physical injury. There was strong support in the Ohio House for favorable first responder legislation, less so in the Senate. The issue will likely resurface next year.
In late July, I received a call from a North Carolina newspaper reporter who occasionally runs queries by me regarding occupational injury or disease issues. He’d said that he had read about the special Connecticut PTSD statute mentioned above, had checked through his online legislative sources, and had noticed that the Tar Heel State had no such pending legislation. He said he had also found stories about the unanimous passage of the Florida First Responder PTSD bill and another that reported the recent changes in New Hampshire. He asked if I knew anything about those bills and I smiled to myself and said I did. Then he blurted, “Don’t we care about our first responders in North Carolina?
I explained, “Of course, we care.” I went on to tell him that in North Carolina, first responders—and most importantly, teachers, bartenders, truck drivers—indeed, any employee could recover benefits for PTSD if he or she could show that the condition arose out of and in the course of the employment. I also explained to the reporter that, as I mentioned above, and has we indicate at some length in Larson, § 56.04, et seq., a plurality of states—including North Carolina—allow recovery for PTSD. Indeed, in that same plurality of states, other mental injuries—not just PTSD—are covered. So when it comes to caring, we do!
Truth is, this plurality of states has never seen the need to separate out a favored class of employees, such as first responders, who receive coverage for PTSD, all the while excluding coverage for everyone else. As I mentioned in a blog post on March 30, 2018, following the enactment of the new Florida law, “What Does Florida Have Against Teachers and Bartenders?” Anecdotally, one might imagine that in Florida, Connecticut, Kentucky, Washington, Idaho and any other state that limits PTSD coverage to so-called “first responders,” it is the long-haul truck driver who is actually the first on the scene at many serious auto accidents. It is a teacher who was first on hand to hold the head of a dying child shot by a crazed assailant. It was a bartender or other wait staff employee was the first to comfort a wounded customer or co-employee at Pulse, the Orlando nightclub.
A few weeks ago, as my Ohio colleague shared the news about Ohio’s failure to move any PTSD legislation forward, I discussed one important, sticky issue with him regarding these new first responder PTSD statutes in states such as Florida, Connecticut, Kentucky, Idaho and others that do not provide similar protections for workers at large. It’s a constitutional question. Is it constitutionally permissible for a state to favor one subset of employees—e.g., so-called first responders—over all other employees in the state? Don’t get me wrong, several of my closest friends are (or were) first responders. Twenty-five years ago, one of my closest friends—a Durham police officer—killed himself due, at least in part, to mental health issues that today would likely be diagnosed as PTSD. The issue shouldn’t be whether we like or favor one type of employee, but rather do we treat all employees equally, to the extent possible?
As the nation debates bans on assault rifles, as it contemplates the sadness caused by the explosion in handgun-related shootings and deaths, as it tries to stem the flood of violence that seems so prevalent within our cities, those public employees who are called upon to deal with these situations first-hand have their work cut out for them in the years ahead. They deserve our cooperation, and our respect. On the other hand, our state houses need to be fair-minded and even-handed in legislating workers’ compensation benefits. It seems there are sufficient challenges to go around.
© Copyright 2019 LexisNexis. All rights reserved. This article is reprinted from Workers’ Compensation Emerging Issues Analysis, 2019 Edition.