Senator Gatti’s bill SB107 was signed by Governor John Bel Edwards and is now Act 122, set to go into effect on August 1st, 2019. The bill adds post-traumatic stress disorder (PTSD) to the list of compensable presumptions under workers’ comp for first responders (state police, emergency medical personnel, volunteer firefighters, sheriff and sheriff’s deputies). The presumption may only be rebutted by clear and convincing evidence.
This new law is part of a larger national trend that seeks to address, in part, public outcry from what some considered to be negligent treatment of first responders struggling after mass shootings like that at the Pulse nightclub in Orlando.
During testimony on the bill, Senator Gatti emphasized that the presumption would result in faster recognition and treatment of PTSD among first responders, which should prevent lifetime disability for affected persons. He repeated that “if you catch [PTSD] early it’s not permanent” while introducing several Louisiana firefighters and police officers who have been diagnosed with the disorder.
Matt Kinney, of the Bossier City Fire Department, testified that the issue of PTSD is particularly dear to his heart. “For a rookie fireman, his first month, he’s probably going to see more death than most people do in their whole life,” he said. Kenny further testified that suicide, much of which is related to PTSD, has been rising among first responders. “Our suicide numbers are now higher than our line of duty deaths, for firefighters and police officers,” he said. “What we’re asking here from y’all, is that last step that we need to get them the help.”
The presumption in Louisiana’s bill is intended to speed up the process, but there are limitations. The Act as signed by Governor John Bel Edwards states that:
“‘Posttraumatic stress injury’ means those injuries which are defined as ‘posttraumatic stress disorder’ by the most recently published edition of the Diagnostic and Statistical Manual of Mental Disorders by the American Psychiatric Association caused by an event occurring in the course and scope of employment.” (emphasis added)
This language, which was discussed as an amendment during testimony, means that cumulative trauma claims for PTSD would be less likely to be accepted, although there is no language in the law which expresses bars such claims.
The landscape of presumptions differs from the availability of benefits. According to NCCI:
“All 50 states and the District of Columbia specifically address workers’ comp compensability for mental-mental and mental-physical injuries, either by statute, regulation, and/or case law. Workers’ comp laws vary greatly across the country, with approximately half of the jurisdictions allowing compensation for mental-mental injuries or illnesses under limited circumstances. Compensable mental-mental injuries must typically be considered extraordinary and the predominant or substantially contributing cause. Other jurisdictions generally allow for compensability only for mental-physical injuries.”
In our region, Louisiana is the only state that provides a presumption for first responders diagnosed with PTSD (see breakdown below.) Most neighboring states do cover what is known as “mental-mental” claims. “Mental-mental” claims are generally defined as claims of psychological injury in workers’ comp that are not associated with a physical injury.
Florida: mental-mental, no presumption, claimant must prove by clear and convincing evidence
Texas: mental-mental, no presumption, claimant must prove by a preponderance of the evidence
Alabama: mental-physical, no presumption, claimant must prove by clear and convincing evidence
The Nomberg Law Firm notes in a blog post on mental injuries that “the Alabama Courts have set a standard in psychological injury cases called the ‘contributing cause standard.’ Ex parte Vongsouvanh, 795 So.2d 625 (Ala. 2000); CVS Corporation, Inc. v. Frances Smith, 981 So.2d 1128 (Ala. Civ. App. 2007).”
Arkansas: mental-physical, no presumption
According to a fact sheet from the Arkansas Workers’ Compensation Commission, “mental injuries and heart attacks are addressed by specific statutory provisions. A mental injury must be caused by a physical injury to the employee’s body, and disability benefits are limited to 26 weeks. However, the physical injury requirement shall not apply to any victim of a crime of violence.”
Mississippi: mental-mental, no presumption, claimant must prove by clear and convincing evidence
The map below shows the state-by-state breakdown of PTSD coverage for first responders under workers’ compensation, derived from a June 2019 Workers’ Injury Law & Advocacy Group (WILG) report. A total of 35 states provide PTSD-related coverage.
Top Image Credit: Cleveland Clinic
Map Created With: Mapchart.net