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Bill would tweak PTSD treatment under workers’ comp

A proposed bill with the power to alter Pennsylvania’s workers’ compensation law is designed to benefit first responders who suffer from post-traumatic stress disorder.

Supporters believe legislation is needed because more first responders are dying at their own hands than in the line of duty. Untreated mental illness does not always lead to suicide, but it can impair a person’s health and decision making.

In a bid to make it easier for first responders to seek help, state Rep. Stephen Barrar (R-Chester, Delaware) sponsored House Bill 432. If passed into law, it would use the terminology of post-traumatic stress injury, or PTSI, rather than post-traumatic stress disorder, or PTSD, and establish statewide protocols on treatment.

PTSD is currently handled as a mental-mental claim, which refers to a mental stimulus that causes a mental injury. Mental-mental claims have a higher burden of proof than do physical injuries.

An employee who suffers from a mental injury must prove it is a result of an abnormal working condition while an employee with a physical injury only has to prove it occurred during work and does not have to prove anything was abnormal.

Barbara Hollenbach, an attorney with Norris McLaughlin, Allentown, said it can be hard to determine what’s abnormal for first responders, and that is why legislation is vital.

First responders are likely to experience more traumatic events than the average person and what’s considered normal is changing. While mass shootings are becoming more “normal” today, they are not events a first responder sees on a daily basis.

“Judges are looking at the totality of the circumstances to sort through what’s abnormal,” said Hollenbach.

Courts weigh in

In a 2013 case, state trooper Philip Payes filed for workers’ compensation benefits for PTSD after his car struck and killed a woman who purposely ran in front of him.

The Pennsylvania Commonwealth Court denied the benefits and deemed accidents and death to be a normal part of an officer’s job. However, the Supreme Court reversed the decision and said an individual running in front of a vehicle for no apparent reason is abnormal.

Other cases involve workers who were not first responders.

A former liquor store manager, Greg Kochanowicz, sought benefits for PTSD after being robbed at gunpoint at work, according to the law firm Martin Law LLC, which represented Kochanowicz. He was initially awarded the total disability he asked for, but Commonwealth Court ended the benefits, saying a potential for robbery was normal. As in the Payes case, the Supreme Court reversed the decision and Kochanowicz’s benefits were reinstated.

H.B. 432, however, would apply only to police officers, firefighters, emergency medical technicians and paramedics who suffer from psychological injuries due to their employment, or after four years or more of service.

“Having legislation like what’s pending for first responders helps to eliminate some of the stigma that’s attached to people who suffer from psychological injuries as a result of traumatic events,” said Steven Ryan, an attorney with Martin Law LLC in Camp Hill.

In addition to reducing stigma, the bill would recognize PTSD as an “occupational disease” and eliminate the higher burden of proof for first responders. As an occupational disease, PTSD or other mental injury is presumed to arise from employment. In that case, the employer must prove the PTSD came from another source.

“That requires expert testimony on both sides in terms of causation,” said Hollenbach. “You still have to prove that it’s somehow casually related to the employment.”

In other words, there is still a burden of proof for first responders, but they no longer have to prove it arose from abnormal working conditions.

“I suspect the legislation is aimed at streamlining the process of easing the burden,” said Denise Elliott, an attorney with McNees Wallace & Nurick LLC, Lancaster. “There are both pros and cons to doing this. Certainly, streamlined rules and more consistent results are a pro. However, to achieve those pros it will be necessary to have a carefully worded and thought-out section of the statute addressing when PTSD (or PTSI) is considered an occupational disease.”

There are eight criteria for diagnosing an individual with PTSD, according to the Diagnostic and Statistical Manual of Mental Disorders, or DSM-5, which is the standard classification of mental disorders used by U.S. professionals. It is unclear if the same criteria PTSI under Barrar’s proposed legislation.

Currently, employees must file a worker’s compensation report within 120 days after an incident. The requirement is tricky when it comes to PTSD because symptoms can be delayed and may be subtle at first, becoming more severe only over time. First responders may also experience PTSD from a culmination of incidents, not one specific event.

When a worker’s compensation claim is accepted, the employee pays zero medical costs until a full recovery is made; however, it can take years for a person to fully recover from PTSD. If PTSD also keeps an employee from returning to work, the insurance company pays lost wages in addition to medical benefits. This could be costly to the insurance industry, according to Barrar.

In February, the Insurance Federation of Pennsylvania provided testimony to the House Committee on Veterans Affair and Emergency Preparedness. The federation said the focus should be more on preventing PTSI rather than how workers’ compensation should cover it. The testimony stated that one way of handling the increase in first responders suffering from PTSI “is to ensure that those employing emergency responders do all they can to prevent and detect PTSI” to decrease PTSI workers’ compensation cases.

In addition to its impact on insurance companies, the Insurance Federation of Pennsylvania believes HB 432 would be expensive for municipalities and hamper recruitment of first responders.

“With this legislation with first responders, you’re going to see pushback on cost, if not already,” said Ryan, the attorney with Martin Law. But, he added: “There has to be some level of courage to face that, particularly for the sake of first responders who in our day and age are responding to really serious events while everybody else is usually running away from them.”

The House is expected to vote on the bill soon but additional changes may be made. If it passes in the House, Barrar said he expects the Senate to follow.

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