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Efforts to provide presumptive death benefits to the families of first responders who take their own lives after being diagnosed with post-traumatic stress disorder are trending in at least two states.
New Mexico Gov. Michelle Lujan Grisham on April 2 signed H.B. 324, which applies to firefighters diagnosed with PTSD that “results in physical impairment, primary or secondary mental impairment or death,” according to the law that went into effect immediately.
Meanwhile, California lawmakers as of April 15 were considering S.B. 542, which would cover mental injuries on presumption for first responders with compensation that “would include full hospital, surgical, medical treatment, disability indemnity, and death benefits,” according to a draft of the bill.
Proponents hope such measures will spread to other states, said Adrienne Shilton, government affairs director for the Sacramento, California-based Steinberg Institute, an advocacy nonprofit that advocates for mental health and co-sponsored the California bill along with four other organizations.
“The alarming increase in the firefighter suicides is what brought us to this issue,” said Ms. Shilton. “We are looking for parity.
There isn’t the same parity (between) the mental illnesses and the physical illness” for first responders who die from work-related causes.
She said she and other proponents expect a fight in passing such legislation.
Both New Mexico and California’s measures are “rebuttable,” meaning the cause of a post-traumatic stress diagnosis can be debated, as is the case with most if not all mental health claims in states that permit them, whether the cases stem from work-related stress, depression or anxiety, or a dangerous incident.
“Some of these mental claims are very, very hard to prove posthumously … you would have to have a mountain of evidence,” said Jessie Zaylia, a Los Angeles-based lawyer who represents injured workers with the firm Zaylia & Associates and who also spent eight years as partner for workers comp defense firm Hanna, Brophy, MacLean, McAleer & Jensen LLP. “That’s why so many psych claims are outright denied by the carriers,” leading to litigation.
Yet in cases of presumption, whether it’s a mental injury or suicide, the burden of proof “flips,” she said. “Instead of the injured workers’ family having to prove it, all they would have to have is the bare evidence” that the worker was a firefighter or police officer.
The insurer, employer or self-insured business would then have the option of a rebuttal, according to the language in both California and New Mexico’s measures.
“It is very difficult for the defense to prove work was not the cause” in cases of presumption, Ms. Zaylia added.
“With presumption you’re starting off with one arm tied behind your back, but it’s defensible,” said Jeffrey Adelson, Newport Beach, California-based general counsel and co-managing partner at Adelson McLean, who represents employers.
New Mexico, in a fiscal impact report written earlier this year, noted that the new law would likely result “in the possibility of new cases being brought before the Workers’ Compensation Administration for dispute resolution proceedings.”
“Should an eligible firefighter who has filed a PTSD-workers comp claim ultimately commit suicide, this new law, because of the presumptive causation, could mean the insurer would have to pay death benefits,” wrote a spokeswoman with New Mexico’s Workers’ Compensation Administration in an email to Business Insurance. “Future claims of this nature would most likely be heavily litigated.”
A firefighter must have been diagnosed by a medical professional before the suicide under the New Mexico law, said Al Ortega, Albuquerque, New Mexico-based vice president of the International Association of Firefighters, Local 244 Chapter, which helped draft the law.
“Workers compensation can refute it,” said Mr. Ortega. “But if it is found to be a legitimate claim and (PTSD) was diagnosed by a medical professional, then they would receive the same benefits as they would had they died from any of the cancers” in the state’s presumption law for firefighters with cancer.
“You have to prove by the same standards as any physical injury that the suicide was caused by PTSD,” said Albuquerque-based attorney Jeffrey Brown of the firm Law Offices of Jeffrey C. Brown, who represents injured workers.
The new PTSD law for firefighters doesn’t give comp attorneys anything new to grapple with because state law allows suicide to be covered under the comp system with adequate proof, he said. But such situations almost always lead to litigation, he said, citing a case that he recently settled involving an oil field worker in Nageezi, New Mexico, who took his own life less than six months after witnessing a fire and explosion in 2016.
The employer claimed the worker only experienced a foot injury despite a PTSD diagnosis by a psychologist.
“You have a lot to prove in a case like this, (but) suicide has not been an exception in workers compensation,” Mr. Brown said.
The issue of preventing suicide among injured workers has been getting more attention in workers compensation circles.