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Nearly a dozen states this year have introduced legislation to expand or enhance workers compensation benefits for employees who suffer mental injuries by presuming they are suffered in the course of their work.
“The trend will continue,” said Brian Allen, Salt Lake City-based vice president of government affairs, pharmacy solutions, for Mitchell International Inc., a subsidiary of Enlyte Group.
Most of the bills apply only to first responders and propose changes to coverage for post-traumatic stress disorder, yet three separate bills filed this month in Virginia would expand the definition of mental injury beyond PTSD to include anxiety and depression for first responders. And a bill introduced in Connecticut would expand PTSD presumption to all workers who witness a “qualifying event” such as a death. A similar bill last year failed to gain traction.
Connecticut and Virginia also this month introduced bills that would expand the definition of first responders to include dispatchers.
Last year saw a similar surge in legislation aimed at making it easier to claim comp for mental injuries, with mixed results suggesting a slowing down of successful bills. In 2022, only three states enacted changes after more than 60 bills were introduced, according to two separate analyses by the National Council on Compensation Insurance. Optum Workers’ Comp and Auto No-Fault in 2021 published findings that over half of the states have made changes to mental injury coverage in workers compensation since 2018.
Some of the concerns among those opposing such legislation are unknown costs, according to experts.
NCCI’s assistant actuary, Bruce Spidell, said the data on PTSD presumption claims is “scarce” and that each state’s presumption parameters are different, making it challenging to predict claim activity. “Every single (law) is different and there’s just not really a benchmark,” he said. “We just don’t know how much this is going to cost.”
Police and fire departments are typically self-insured, adding to the difficulty in gathering data on costs, he said.
The issue hit a roadblock for that reason in 2022 as California lawmakers aimed to expand a 2020 PTSD presumption law — set to expire in 2025 — to dispatchers and several other classes of emergency response personnel.
California Gov. Gavin Newsom, in a Sept. 29, 2022, letter to legislators on why he would not sign such a bill, said that “expanding coverage of the PTSD injury presumption to significant classes of employees before any studies have been conducted on the existing class for whom the presumption is temporarily in place could set a dangerous precedent that has the potential to destabilize the workers compensation system going forward, as stakeholders push for similarly unsubstantiated presumptions.”
Mr. Allen said the uncertainty surrounding cost is the top issue: “You always try to look to figure out if we make this policy change, what is it going to look like five years from now, 10 years from now. What’s the upside? What’s the downside?”
The way many current laws are written, most first responders would qualify for coverage if they are diagnosed with PTSD, he said.
“Potential for abuse” is another issue, Mr. Allen said, referring to the possibility of PTSD claims being filed by those who are already retiring, resulting in higher benefits.
While opposition to such bills has typically been easy to come by, few municipal groups are speaking out. Calls and inquiries to several state groups that advocate for cities and other jurisdictions seeking comment were not returned.
Michelle Gowdy, executive director of the Virginia Municipal League, wrote in an email that the organization “continues to monitor this issue, but we are not in a position to comment at this time.”
The mental health of first responders is “a real issue out there,” Mr. Allen said. “The question is how do we approach it? How do we deal with it? What’s the appropriate way to cover it?”