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Rising PTSD claims, wider comp liabilities spotlight importance of treatment guidelines

Mental health expert

Post-traumatic stress disorder is a commonly misunderstood mental illness that is increasingly a component of workers compensation claims, raising concerns over how to navigate and close the often complex claims.   

Mental health experts say that adherence to guidelines for the diagnosis and treatment of PTSD is essential when treating affected workers. 

“The prognosis for well-treated PTSD is actually quite good,” said Les Kertay, Chattanooga, Tennessee-based behavioral health medical director for Genex Services, an Enlyte LLC company. “People tend to recover.”

State lawmakers have repeatedly sought to expand or introduce presumption laws that would make PTSD a compensable illness for some occupations allowing for more so-called mental-mental claims, or mental claims that result from a psychological event.

The push to expand workers comp into the mental health arena has mostly related to first responders, but there’s a growing interest in broadening eligibility for all workers (see related story below). 

The workers comp industry has generally been wary of accepting mental injury claims (see second related story below).

Reference to the universally accepted checklist in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, is necessary to make a PTSD diagnosis, experts say.

Most checklists start with the question of whether a person experienced a tragic event. Most PTSD presumption laws and proposals mention the DSM-5 and refer to experience of tragedy as a bar for accepting claims. 

“The No. 1 criterion in the DSM for PTSD is that the individual must have experienced or witnessed traumatic death or serious injury,” said Ron Heredia, a psychologist and founder and director of Los Angeles-based Good Mood Legal, which specializes in reviewing psychological evaluations in insurance claims.

After that determination is made, assessors should look at symptoms such as debilitating anxiety, nightmares and flashbacks, said Dr. Elspeth Cameron Ritchie, Washington-based chair of psychiatry at MedStar Washington Hospital Center, who spent part of her career as a U.S. Army doctor treating veterans with PTSD. 

Under the DSM-5 checklist, a person needs to have a certain number of symptoms over a long period to receive a PTSD diagnosis and the symptoms should not be confused with temporary discomfort after a traumatic event, Dr. Cameron Ritchie said. A key distinguisher is seeing, smelling or hearing triggers that ignite PTSD symptoms, she said. 

PTSD may not show up immediately, Dr. Cameron Ritchie said, recalling working in South Korea with veterans who had served during the Vietnam War and began experiencing PTSD symptoms years later. 

“Korea is an Asian country that has many of the same sights and smells … which brought them back to Vietnam. Some of them had been symptom-free for 20 years and then they started to develop some symptoms, and those symptoms are normally the flashbacks and the nightmares.”

David Faust, professor emeritus in the Department of Psychology, Clinical Psychology, at the University of Rhode Island in Kingston, Rhode Island, called PTSD “a condition of suffering.”

“Some of the symptoms, for example, include intense anxiety and hyper vigilance — that is, looking around you everywhere for something that might be threatening and so on,” he said. “That can cause significant disruptions and affect focus and concentration, (which) can lead to errors on the job or just intolerable levels of discomfort.”

Experts say PTSD is treatable and most sufferers get better. They point to such treatments as talk therapy, medications and emerging methodologies — technological developments have helped PTSD patients in recent years, for example — as best practices.   

“It’s going to depend on the person and how resilient they are,” Dr. Cameron Ritchie said, adding that preparation is also key. “How prepared they were for the stressor counts. For example, if you’re in the Army, you go to basic training and you get a lot of preparation; you know you’re going into war.”

Recovery is possible and very likely, but sometimes PTSD is in “remission” and can reoccur with triggers, Mr. Heredia said. “It’s different for everybody,” he said, adding that adherence to guidelines and documenting progress are vital, especially for workers comp patients.  

Mr. Faust said that “getting better means improving, and there are plenty of people with PTSD who can work, and it depends a lot on the nature of the job. With all the caveats … most workers want to get back to work.”

Workers comp industry cautious in accepting mental health injuries

Historically, the workers compensation industry has sought to avoid mental injury claims, fearing that the subjectivity surrounding the diagnosis of conditions such as post-traumatic stress disorder would result in workers falsifying claims, exaggerating injuries or malingering for financial gain, experts say. 

“PTSD has always been a controversial diagnosis,” said Dr. Elspeth Cameron Ritchie, Washington-based chair of psychiatry at MedStar Washington Hospital Center.

She cites several reasons: The criteria for PTSD have changed over time; the diagnosis is often misused by claimants; and some of the characteristics of the disorder can be mistaken for other conditions, as the symptoms can overlap. 

The expense of treating mental injuries is also a significant concern — most opponents of expanding mental claims in workers comp say unknown costs comprise the top issue. There’s also a well-documented shortage of qualified mental health practitioners to diagnose and treat PTSD. 

“Employers don’t like PTSD or mental claims,” said Brad Young, St. Louis-based member at Harris Dowell Fisher & Young LC, which represents employers. “They’re inherently subjective. You can’t point to a test. You can’t point to an MRI … and say the person has this problem.” 

Mr. Young noted that prior stressors and mental issues can be at work. 

“They may have had other trauma in their life,” he said. “When you have a mental injury on the job, that mental injury that’s being treated is not just for that injury, but it’s also encompassing all of the prior stressors.”

So-called mental-mental claims are those caused by a mental stimulus — such as something a person experienced — and result in a mental injury. A physical-mental claim is precipitated by a physical injury. States vary on how claims are accepted, with most states strictly prohibiting mental-mental claims, but that is slowly changing. 

Les Kertay, Chattanooga, Tennessee-based behavioral health medical director for Genex Services, an Enlyte LLC company, said the expansion of presumptions is “problematic” because they imply that all people who experience trauma will develop a potentially long-term mental condition. 

“We have all experienced at least one (traumatic) event by the time we are 40 years old,” he said, referring to what many existing and proposed presumptions list as qualifying events for eligibility. But he cautions insurers and employers to not dismiss the claims without careful review. 

“You don’t want to turn it into a battle,” Dr. Kertay said. “If somebody has an event, they do meet the criteria, they actually have PTSD, and they’re being treated, don’t turn it into a fight. Don’t turn it into an adversarial relationship because that just makes people dig in further. It’s a real thing; it really does happen.”

States continue efforts to expand PTSD eligibility to more workers

Three months into 2024 and the years-long trend to expand, amend or introduce legislation involving post-traumatic stress disorder and other mental injuries as occupational diseases continues. 

More than a dozen new and revived bills have been filed for consideration this year. Some call for new presumptions or add types of workers that would qualify; some deal with diagnoses and treatments for mental injuries; and some offer new parameters for qualifying for benefits.

As examples:

  • Colorado lawmakers are considering a bill that would authorize benefits for all workers who are repeatedly exposed to trauma.
  • Arizona and Virginia lawmakers have introduced bills that would expand presumptions to include emergency dispatchers.
  • West Virginia lawmakers are considering a bill that would expand which professionals can diagnose a first responder with PTSD.
  • Kentucky lawmakers are considering amendments that would make off-duty work compensable for PTSD. 

“There’s a lot of expansion in the presumption space,” said Brian Allen, Salt Lake City-based vice president of government affairs for Enlyte LLC, which provides workers compensation services. 

This year looks much like 2023 in terms of the wave of bills introduced, according to annual analyses by the National Council on Compensation Insurance in Boca Raton, Florida. Last year’s results were mixed, with most bills introduced failing to gain traction. In 2022, only three states enacted changes after more than 60 bills were introduced, according to two analyses by NCCI. 

In 2023, the trend of expanding PTSD presumptions beyond first responders was successful in two states: Connecticut now allows all workers who witness harrowing events to qualify for PTSD presumption, and Washington allows nurses the same benefits as first responders. 

The costs of implementing presumptions are unknown as data is limited, experts say. 

A spokeswoman for the NCCI wrote in an email that “first responders are typically employed by municipalities who are often self-insured and therefore are not required to report data to NCCI. … This limits the amount of information available to NCCI since this population of employees may represent a greater proportion of work-related PTSD claims.” 

Aiming to take the issue out of the workers compensation system, where the industry is wary of the unknown costs, lawmakers in Georgia, Indiana and Mississippi have introduced bills that would create programs for first responders suffering from PTSD that include such parameters as benefit limits and treatment options. 

John Hanson, Atlanta-based vice president at Alliant Insurance Services Inc., said the Georgia bill to create an alternative program for first responders with PTSD is in response to the unknown costs associated with keeping the claims in the workers comp system. 

California and Minnesota have reported high volumes of claims of PTSD that typically include frictional costs such as litigation associated with claim acceptance, he said. 

“All of the costs associated with investigation, with litigation or arbitration are growing very quickly as opposed to just the claim costs,” said Mr. Hanson, who supports the Georgia bill. 

Steven A. Bennett, vice president of workers compensation programs and counsel for the Washington-based American Property Casualty Insurance Association, said the industry needs strict standards for claiming PTSD. 

“Mental injuries are subjective. … It’s unclear whether this injury is due to work or due to something in the person’s private life or something hereditary,” he said. “That’s why mental claims are problematic.”

APCIA advocates for changes to presumptions so that they “have limitations on the scope of employment on the type of situations recoverable,” and, for proof of mental illness, “we would like a clear and convincing standard, and we would want it to be for very specific, egregious circumstances,” Mr. Bennett said.

Florida, for example, in 2019 modified its PTSD presumption for first responders to require that the worker witness a so-called “qualifying event” to receive care and income benefits. That change went into effect one year after the state passed the original presumption bill.