What standard should be used when first responders file workers compensation claims due to post-traumatic stress disorder?
That’s the primary question a public safety committee, appointed by the Arizona Legislature, will be tasked with answering. Among the 22-member committee is CopperPoint’s James Stabler, vice president and chief counsel; he is the only workers compensation expert on the committee.
“The issue of PTSD, particularly when it comes to police, officially has become a national workers comp policy issue and particularly this year,” Stabler said.
Nationally, several efforts have been launched to address PTSD claims by police officers or firefighters before it came to the forefront in Arizona through the efforts of police unions. Stabler cited the 2014 case in which Phoenix Police Officer Craig Tiger, having been diagnosed with PTSD as the result of a fatal on-duty shooting, was fired by then-Chief of Police Daniel Garcia. Tiger committed suicide shortly thereafter. The Phoenix Law Enforcement Association, a police union, called for better treatment of officers who suffer from PTSD. Garcia ultimately resigned.
“This brought the issue to greater public attention, particularly for police unions,” Stabler said.
In Arizona workers compensation law, coverage for PTSD is governed by ARS §23-1043.01:
A mental injury, illness or condition shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this chapter unless some unexpected, unusual or extraordinary stress related to the employment or some physical injury related to the employment was a substantial contributing cause of the mental injury, illness or condition.
Statistically Stabler said a higher burden of proof exists for claims of compensation regarding mental injury; compensability requires “unexpected” or “unusual” stress. Arizona courts’ interpretation says these claims have to be viewed by an objective, not subjective, standard.
That can be tricky, as other states are finding out as they struggle to define standards for compensation. Connecticut, for example, has been looking at a bill that spells out what has to happen for a PTSD first responder claim to be compensable. Stabler said the Connecticut medical community opposes it for drawing an artificial distinction, while the state’s municipalities are fighting it because they fear PTSD claims for first responders will be too costly. To date, Connecticut’s Senate has passed the bill, but it remains stalled in the state’s House. Other states considering legislation include Colorado and Ohio but are struggling with the same concerns expressed in Connecticut including potential costs and frivolous claims.
PTSD is a recognized mental health condition that may be triggered by a terrifying or violent event. Symptoms, according to the Mayo Clinic, include flashbacks, severe anxiety, nightmares and uncontrollable thoughts about the event. For first responders – firefighters, police and emergency medical personnel – exposure to high-stress events may come as part of the job.
“When looking at police officers or firefighters we expect they will confront life-or-death situations, but does that satisfy the courts’ view of an objective standard?” Stabler said.
As a result of the Tiger case, local police unions submitted a bill that would have created a presumption of compensation for peace officers claiming PTSD and designated it an occupational disease with similar presumptions of coverage which now apply to cancer conditions; it failed to pass.
A second bill, HB2438, was submitted by Representative David Livingston, R-22, and passed; it created a PTSD in public safety committee charged with studying the problem with regard to treatment, counseling, education and statutory presumptions under the Workers’ Compensation Act . The committee’s first meeting is Nov. 10.