Mental health claims in workers comp has been a growing topic over the last few years. As society develops a better understanding of mental illness and its treatment, states have begun considering where and when a mental illness, especially Post Traumatic Stress Disorder (PTSD), should be incorporated into workers’ comp statutes. While it seems to be a topic in almost every state house the last few years, that hasn’t always been the case.
Between 1911 and 1948, every state in America adopted a workers’ comp statute and program, although similar in idea, they vary in details. Since that time, every state has reformed and changed their statutes to address the evolving needs of their state, but the basis has remained - the grand bargain. Injured workers gave up their right to sue their employer for civil liabilities in exchange for benefits established by statute.
Most states required some sort of physical manifestation of a workplace injury, which explains your typical workers’ comp claims - back strain, broken bone, loss of a limb, etc. But as time has shown, that definition may not capture all the injuries or risks a worker is subjected to. What happens if a worker experiences a traumatic event because of their job? What if that event triggers a mental reaction like PTSD? These illnesses do not always come with a physical injury a doctor can assess with an X-ray or exam. The reality of this has forced some states to reexamine their workers’ comp statutes, especially in regards to first responders.
Since 2012, more and more states have begun to examine if they need to include mental illness in their protections for workers. With the influx of mass tragedies such as the Sandy Hook School Shooting and the Pulse Night Club Attack, workers, especially first responders, like police, firefighters and EMTs, are bringing more and more attention to the mental health implications of handling those events. Police that responded to Sandy Hook have been fighting the state for better coverage of mental health, as many of them have suffered debilitating episodes of PTSD. Similarly, in Florida, one first responder from the Pulse Nightclub shooting went to court to fight for benefits to cover his PTSD.
In response, states all over the country are considering legislation that would include mental illness under workers’ comp statutes. In 2017 alone, 6 states currently have mental health related bills pending before their legislature, and in Ohio, the police union is pushing the legislature hard to consider amending the state’s workers’ comp statutes to cover PTSD. The states that are looking at better mental health coverage for injured workers are doing so on a limited basis. The majority, with the exception of Vermont, are only opening mental health coverage to first responders - those most likely to experience traumatic events as part of their work.
In order to extend the coverage, many states have found they have to also edit their workers’ comp statute to remove the physical injury requirement. As noted above, mental illness does not always result in a physical injury, and in order for a state to allow for PTSD claims from their first responders they would need to remove such a requirement if they truly want to open up the system to mental illness. So far, none of the states with these bills have passed the legislation but they are still moving through the system and something to watch in the years that come.
