A bill adopted by the Idaho Senate on Feb. 12 to allow post-traumatic stress disorder benefits for first responders under the state’s workers compensation system is drawing on a trend in presumption laws related to mental injuries, but is fairly unique because the proposed legislation includes 911 operators among those who can seek PTSD coverage.
Idaho’s move is in line with the more than 12 states with laws in the books for first responders who are diagnosed with PTSD, and is in line with the emerging trend of presumption laws that do not require that a mental injury be associated with one event. Minnesota, Florida and Washington passed such laws for first responders in 2018.
Most laws provide details on who is eligible — naming “peace officers,” “law enforcement officers” or “firefighters.” Less common is the inclusion of those who answer emergency calls, such as 911 dispatchers. Minnesota’s new law lists “public safety dispatcher” among those eligible while Florida’s law is less specific, requiring that the employees “witness” tragedy and later lists “hearing” an event —but never names dispatchers.
Brian Fontes, the CEO of Alexandria, Virginia-based National Emergency Number Association, said he applauds legislation that includes 911 dispatchers because it “reflects the reality of the job. These folks, like police and fire, are subject to the effects of PTSD and by having it in the law, it allows them, in essence, the same remedies,” he said.
A Northern Illinois University study published in the Journal of Traumatic Stress in 2012 found that the rate of PTSD among 800 surveyed emergency telecommunicators was between 18% and 24%.
Dr. Joel Fay, a retired police officer and psychologist and co-founder of the First Responders Support Network in Napa County, California, said he doesn’t see why 911 dispatchers would be excluded from this type of legislation.
“While their lives might not specifically be in danger … they have a great deal of exposure to trauma,” he said. “Most of it might be vicarious, but some is really direct when you hear what’s going on and can’t do anything to stop it.”
However, most states still classify emergency dispatch operators as clerks, according to Ty Wooten, NENA’s director of education. After the Sandy Hook Elementary School shooting in 2012, he said several Connecticut dispatchers suffered from PTSD and were not able to receive workers comp assistance because of their job status. A new bill was introduced in January in Connecticut’s General Assembly, but the legislation would only offer PTSD comp coverage to police officers and firefighters.
A dispatcher in Oregon, which does not have a presumption law, eventually received PTSD benefits after the Oregon Court of Appeals ruled in her favor in 2018 in her PTSD claims relating to a 1996 incident in which she dispatched officers to a scene where a suspect had been shot. The ruling in Sheila L. Minor v. Saif Corp. and Coos County reversed an earlier Workers’ Compensation Board decision that upheld the original denial of her occupational disease claim for a mental injury on the grounds that she failed to prove her injury was work-related, according to documents.
Alan Gardner, senior partner and founder of Gardner Law Office LLC in Boise, Idaho, said he fears the addition of the PTSD presumption for first responders and dispatchers within the state’s current statutes could create a slippery slope toward making these types of mental injuries compensable in other industries. He expects the legislation to pass the state’s House but is uncertain as to whether Idaho’s Republican Gov. Brad Little will sign the bill. The governor’s office did not respond to a request for comment.
Currently, Idaho bars psychological-only trauma from being compensable under the state’s workers comp system. About half of U.S. states allow for compensation of mental-mental injuries — that is claims that don’t have a physical manifestation — or psychological illnesses under limited circumstances, according to the National Council on Compensation Insurance in Boca Raton, Florida.
“The concern we have, both in the claimants’ bar and defense, is that we already have a statute that excludes mental-mental injuries,” Mr. Gardner said. “This has created an equal protection kind of nightmare for us.”
Mr. Gardner said because of the way the proposed change is constructed, he’s concerned with how the rest of the statue will be impacted when it is challenged in court.
“I represent a lot of manufacturing companies and I’ve seen incidents where people are literally being ground up in machinery,” he said. “My concern is, in the not too distant future, someone makes the claim that they should have the same coverage (as first responders). It could cause us to lose the other part of the statute on mental-mental injuries, and I don’t know what the consequences would be.”
In Minnesota, which includes 911 dispatchers in its PTSD presumption coverage, the law only provides for workers comp coverage for PTSD that’s been diagnosed by a psychiatrist or psychologist. The law took effect Jan. 1.
The state began to allow coverage of PTSD in 2013 for first responders, but to qualify the employee had to show the PTSD was caused by work and the diagnosis had to be consistent with symptoms outlined in the Diagnostic and Statistical Manual of Mental Disorders by the American Psychiatric Association.
Mark Kleinschmidt, of Cousineau, Waldhauser & Kieselbach PA in Mendota Heights, Minnesota, said since the state added PTSD as a compensable injury that a number of police officers have filed for coverage. However, those who sought compensation before 2019 don’t have the presumption, and the burden of proof required for PTSD coverage will be considered by the Minnesota Supreme Court when it hears Smith v. Carver County, in which a Workers Compensation Court of Appeals reversed a commission judge’s finding that a state trooper failed to establish that he had a compensable claim for PTSD. No date is listed yet for oral arguments.
By Angela Childers | Businessinsurance.com
Louise Esola contributed to this report.