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Several Canadian and U.S. jurisdictions are establishing or considering presumptions that post-traumatic stress disorder is work-related for first responders, but stakeholders have raised concerns about the potential costs and discrimination.
In April, Ontario became the latest jurisdiction to pass legislation that presumes a first responder diagnosed with PTSD by a psychiatrist or a psychologist is eligible for workers compensation benefits without needing to prove a causal link between PTSD and a workplace event.
The presumption applies to more than 73,000 police officers; firefighters; paramedics; emergency response teams; police, fire and ambulance dispatchers; and certain jail workers.
“Employers in Ontario, and anywhere that deals with this, need to realize that this is a trend and these individuals are exposed to events that do cause PTSD,” said Brian MacDonald, an associate at Filion Wakely Thorup Angeletti L.L.P. in London, Ontario. “A growing sensitivity to that, I think, is certainly warranted.”
The PTSD legislative activity builds on efforts to pass presumptions related to other first responder conditions such as cancer and heart attacks, observers say.
“It's a little more difficult when it comes to post-traumatic stress disorder because it's one of those areas of occupational diseases where there's a conflict of whether these are job-related or come from a pre-existing condition,” said Peter Burton, Philadelphia-based senior division executive of state relations at the National Council on Compensation Insurance Inc.
Alberta and Manitoba also have adopted PTSD-related presumptions, while other Canadian provinces and U.S. states such as Connecticut and South Carolina are considering legislation. Like other jurisdictions, Ontario's legislation was driven by a desire to provide faster and easier access to workers comp benefits, resources and timely treatment for employees diagnosed with PTSD, experts say.
“A lot of places won't recognize” PTSD, said Ron McGraw, occupational health and safety assistant at the International Association of Fire Fighters in Washington. “In workers comp, we have enough trouble with them just recognizing a broken leg, let alone something as difficult to assess as PTSD or mental health issues and behavioral issues associated with the stresses of the job.”
A common theme is the bills specifically identifying police officers, firefighters or emergency services providers as first responders, which raises concerns because they often omit workers who also could be eligible for presumptive benefits, observers said.
“I do think that becomes a prejudicial issue,” said Bree Nowacki, an Oklahoma City-based PTSD blogger and survivor with the United States First Responders Association. “Those people count, too. What if they were present at a mass disaster, but they don't fit this trifecta? Shouldn't they be covered too? I believe they should.”
For example, an Ontario emergency medical technician responding to a call about a traumatic injury would be presumed eligible for PTSD benefits, but health care workers who treat the patient at an emergency room would have to prove a connection.
“It's only for certain classes of people, and that's one of the areas where I think there's likely to be challenges on a discriminatory basis, because this does allow people of a certain group to be presumed for entitlement,” said Laura Russell, a partner at Mathews Dinsdale & Clark L.L.P. in Toronto. “I'm a bit concerned that it's actually providing some privilege to that group of people far and above what lots of other people are going to be expected to have to prove for their claims.”
On Jan. 1, Manitoba established the broadest inclusion by allowing the presumption that an employee's PTSD is caused by his or her employment unless the contrary is proven — a recognition that PTSD-triggering events can happen in any workplace.
Another concern about the legislation is the additional cost.
In Ontario, municipal employers generally fall into the Workplace Safety and Insurance Board's Schedule 2 category, meaning they pay claims on a dollar-for-dollar direct basis, as opposed to Schedule 1 employers, which pay annual premiums based on the board's classification of their activities and total insurable payrolls.
“WSIB claims for Schedule 2 employers can be very, very costly, particularly these kinds of claims where people may be off work for a very long period of time,” said Jodi Gallagher Healy, a London, Ontario-based partner at Hicks Morley Hamilton Stewart Storie L.L.P. “It has a significant financial impact. I think what we're going to see is a growth in demand for excess indemnity insurance.”
The Arizona Legislature considered a bill that would have stipulated that PTSD of a peace officer was compensable through the workers comp system, but some stakeholders objected partly because of the increased costs.
“If it goes through the workers comp system, basically it becomes a lifetime claim and has an extremely long tail, and ends up being very expensive, and may or may not have been a PTSD issue,” said Ken Strobeck, executive director of the League of Arizona Cities & Towns in Phoenix.
Despite a constitutional challenge to Oklahoma's opt-out law and that similar legislation has been put on hold in Tennessee and South Carolina, some experts are warming to the idea of responsible alternatives to state workers compensation systems.