Putting Mental Health on the Frontline: Why Mental Injuries in First Responders Should be Covered Through Workers' Compensation

September 11, 2020

By Caitlin Dryden*

Today, more Police Officers and Firefighters will die by suicide than in the line of duty.¹ “You don’t realize what’s happening to you when you’re going through the years of layered secondary trauma, and then one day you feel it,” says Officer Ed Pila, a retired officer who spent 20 years working in the domestic violence unit.² There are many reasons why first responders struggle to get help for mental injuries, such as lack of public awareness, cultural stigmas, biases within the first responder community, lack of access to mental health services, and the cost of such services. A rebuttable PTSD presumption granting coverage for first responders under the workers’ compensation system would alleviate many of these burdens and help break the silence and stigma surrounding mental health.

As Diagram A illustrates, first responders in most states are required to provide specific evidence of the causal relationship between their injury and their job, which adds unnecessary and absurdly high burdens for first responders when claiming benefits for Post-Traumatic Stress Disorder (PTSD), an obvious occupational disease.³ This is where a presumption could help. A presumption is “[a] legal inference or assumption that a fact exists because of the known or proven existence of some other fact or group of facts…”⁴ This inference would allow first responders who have served for a certain amount of time to recover for PTSD claims if certain criteria are established—without requiring them to prove the causal relationship.⁵ Because it is rebuttable, the presumption can be reversed should there be evidence supporting the contrary.⁶

Workers’ compensation works on a state-by-state basis and is a type of insurance that protects employees and supports their families when the employee is injured or dies from a job related injury.⁷ As it stands now, it is incredibly difficult for first responders to get the help they need for job-related mental injuries in most states.⁸

The case of Montana firefighter Joe Yarborough is an example of this difficulty. Yarborough was denied compensation and medical benefits when the Montana Supreme Court determined that his mental injury, PTSD, was not caused by the severe burns and physical injuries that he suffered on his face and hands during an explosion, but was caused by the purely mental experience of the explosion itself.⁹ The Montana Supreme Court upheld the lower court’s finding, stating “since claimant’s PTSD and resulting disability were not a consequence of his physical injuries, they are not compensable under the Workers’ Compensation Act.”¹⁰ Stories like this are the unfortunate reality for many first responders.

PTSD is a mental injury that commonly afflicts first responders.¹¹ The disorder can be triggered by experiencing or witnessing traumatic events such as natural disasters, war, personal assault, serious accidents, or other violence.¹² Symptoms can start immediately or years after the event and can cause significant problems in everyday situations and relationships.¹³ There are four groups of symptoms including intrusive memories, avoidance, negative changes in thinking and mood, and changes in physical and emotional reactions.¹⁴ Other related conditions include acute stress disorder, adjustment disorder, anxiety disorder, disinhibited social engagement disorder, and reactive attachment disorder.¹⁵

Everyone is affected differently by trauma, but there are certain risk factors that increase the likelihood of developing PTSD. These factors are incredibly prevalent among first responders and include living through dangerous events, getting hurt, seeing people killed, feeling fear, dealing with extra stress, and having little to no social support.¹⁶ What is lacking for first responders are resilience factors that reduce the risk of PTSD, which include support groups and feeling good about one’s actions. Because first responders have such an important role in society, their untreated mental injuries can affect everyday citizens. Repeated exposure to traumatic events can impair the mental well-being of first responders, affect their ability to perform their public duties, and hinder their rapid response and decision-making abilities.¹⁷

Establishing a presumption would give first responders the support they need to focus on recovery and would shoulder some of the financial burden the family may experience at that time.¹⁸ An acknowledgement of these types of injuries confirms for the worker that his or her mental injury is real and that treating their injury properly is necessary. First responders are often tasked with protecting the lives and health of other members of the public; they have more than earned the same protections from their government.

Legislators have two options to incorporate a presumption within a state’s workers’ compensation statute, either amend the definition of “occupational disease” or amend the definition of “injury.” Florida, Minnesota, Oregon, and Washington amended their workers’ compensation statutes to include PTSD or mental illness as an occupational disease for first responders.¹⁹ Connecticut, Idaho, Maine, Minnesota, and Vermont classify PTSD or mental illness under the definition of injury.²⁰ While cost is a common concern among those who prefer our first responders suffer in silence, it is important to note that paying for preventative care may reduce the cost of the fallout that occurs from ignoring the issue.

According to the State Department, stress may be managed before it reaches the degree of mental injury that would require additional retroactive support. States may be able to implement other measures that work on treating mental health more regularly to intervene before the suppression of trauma becomes a debilitating mental injury.²¹ The United States Department of State Bureau of Medical Services offers stress management advice for deployed individuals and focuses on resilience as a way to maintain psychological well-being.²² According to the Bureau, resilience is a skill to be learned and practiced, a way to tackle challenges and move forward.²³ Some tips they offer include “maintain a sense of perspective,” “learn how to calm yourself,” “overcome your fear,” “let go of your anger,” and “laugh.”²⁴

In reality, these “tips” seem to lack the strength to combat stress to the degree that first responders experience it, but the State Department’s recognition of stress and the necessity of resilience confirms that what first responders need is support. While these may be tools to help maintain a healthy psyche, they do not prevent mental injuries. The most “preventative” care is recognition and support of the problem when it arises, not long after it has been suppressed.

First responders are at an increased risk for developing PTSD because of the horrors they are exposed to and often shield the public from. When improperly treated, mental injuries can have severe personal consequences. These problems are exacerbated by a system that denies wage loss and medical benefits to first responders who suffer from PSTD or other mental injuries associated with their world. The Workers’ Compensation system is an appropriate place to begin remedying the PTSD crisis plaguing first responders. Compensating first responders for wage loss and medical expenses as they treat this occupational disease allows first responders to get the help they need and support their families. To do otherwise unfairly leaves the first responder to deal with this occupational disease on his or her own. Most importantly, a presumption serves to make the hurdles to treatment a little smaller and shows first responders, who often risk their life to protect their communities, that their communities are supporting them, too.

State	Mental Injury Claim Requirements	Source
Alabama	No recovery for purely mental injuries, must be proximately caused by phyisical injury	Ala.Code 1975 § 25-5-1
Alaska	No recovery for a mental injury unless it is the product of extraordinary and unusual stress compared to others in a similar work environment and work is the predominant cause of the mental injury.	§ 23.30.010. Coverage, AS § 23.30.010
Arizona	No recovery for a mental injury unless it is the product of extraordinary and unusual stress compared to others in a similar work environment and work is a substantial contributing cause of the mental injury.	A.R.S. § 23-1043.01
Arkansas	No recovery for purely mental injuries, must be caused by phyisical injury	A.C.A. § 11-9-113
California	Recovery for mental injuries if they cause diability or require medical treatment and are diagnosed using the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders.	West's Ann.Cal.Labor Code § 3208.3
Colorado	No recovery for mental injury unless it is based on circumstances uncommon to all fields of employment and renders the employee temporarily or permanently disabled from pursuing the occupation from which the claim arose or requires medical or psychological treatment.	C.R.S.A. § 8-41-301
Connecticut	No recovery for mental injuries unless they arise from a physical injury or occupational disease. Allows recovery for first responders who experience mental injuries as the result of certain situations or with proper diagnosis.	C.G.S.A. § 31-275 and C.G.S.A. § 31-294h
Delaware	Recovery for mental injuries in most situaitons.	19 Del.C. § 2301(12) and State v. Cephas, 1994, 637 A.2d 20
District of Columbia	No recovery unless the objective actual conditions of employment cause mental injury and claimant shows that the conditions could have causes similar injury in another person with no predisposition for such injury.	Gary v. District of Columbia Dept. of Employment Services, 1998, 723 A.2d 1205 and McKinley v. District of Columbia Dept. of Employment Services, 1997, 696 A.2d 1377
Florida	No recovery for purely mental injuries, must be caused by phyisical injury. Special provision for first responders allows certain level of recovery for mental injuries demonstrated by clear and convincing evidence.	West's F.S.A. § 440.093 and § 112.1815
Georgia	No recovery for purely mental injuries, must arise out of an accident which caused phyisical injury and the physical injury contributes to the mental trauma.	Caaaolumbus Fire Department/Columbus Consol. Government v. Ledford, 1999, 240 Ga.App. 195, 523 S.E.2d 58
Hawaii	Recovery for mental injuries arising out of employement, but not as a result of disciplinary action.	HRS § 386-3
Idaho	No recovery for mental injury unless caused by physical injury or occupational disease. Exception for first responders that suffer from PTSD if they are properly diagnosed and clear and convincing evidence shows work caused the injury.	I.C. § 72-451
Illinois	No recovery for mental injuries unless they are the result of severe emotional shock outside of the day-to-day emotional strain of employment.	Diaz v. Illinois Workers' Compensation Com'n, App. 2 Dist.2013, 370 Ill.Dec. 845, 989 N.E.2d 233, on remand 2014 WL 3689273
Indiana	No recovery for mental injury unless it arises from physical injury.	IC 22-3-6-1
Iowa	No recovery for mental injury unless the claimant proves the injury is a result of unusual stress, outside of the day-to-day stress experienced by similarly situated employees.	Dunlavey v. Economy Fire and Cas. Co., 1995, 526 N.W.2d 845.
Kansas	No recovery for mental injuries unless they are the result of a physical injury.	Doebele v. Sprint/United Management Co., 2003, 342 F.3d 1117.
Kentucky	No recovery for mental injuries unless they are the result of a physical injury. Physical injury may involve physical exertion rather than an impact from an outside force.	KRS § 342.0011 and Richard E. Jacobs Group, Inc. v. White (Ky. 2006) 202 S.W.3d 24
Louisiana	No recovery for mental injuries unless it is the result of sudden, unexpected, and extraordinary stress.	LSA-R.S. 23:1021
Maine	No recovery for mental injuries unless it is the result of sudden, unexpected, and extraordinary stress and the stress is from work, not another source. There is a presumption for first responders properly diagnosed with PTSD from sudden, unexpected, and extraordinary stress that the PTSD is a work injury.	39-A M.R.S.A. § 201
Maryland	Potential recovery for mental injuries that are unrelated to physical injuries but mere showing that mental injuries are related to general conditions of employment is not enough to succeed in a purely mental claim.	King v. Board of Educ. of Prince George's County, 1998, 716 A.2d 1077, 123 Md.App. 73, certiorari granted, affirmed and Davis v. Dyncorp, 1994, 647 A.2d 446, 336 Md. 226.
Massachusetts	Recovery for mental injuries that arise from an event or series of events occurring within employment.	M.G.L.A. 152 § 1
Michigan	Recovery for mental injuries that occur from events that are more than ordinary or realtively innocuous job stress.	M.C.L.A. 418.401 and Lombardi v. William Beaumont Hosp. (1993) 502 N.W.2d 736, 199 Mich.App. 428.
Minnesota	Recovery for mental injuries arising out of and in the course of employment peculiar to the occupation with a presumption that mental injuries in first responders are occupational diseases related to work.	M.S.A. § 176.011
Mississippi	Recovery for mental injuries caused by more than the ordinary incidents of employment.	Dillon v. Roadway Exp., Inc., 2002, 823 So.2d 588.
Missouri	No recovery for mental injuries unless they are the result of an extraordinary and unusual work event.	V.A.M.S. 287.120
Montana	No recovery for mental injuries unless they arise from a physical injury.	MCA 39-71-119
Nebraska	No recovery for mental injuries in first responders unless they arise out of extraordinary and unusual conditions	Neb.Rev.St. § 48-101.01
Nevada	No recovery for mental injuries unless caused by extreme stress in time of danger. Coverage for first responders that witness death or an injury of grievous bodily harm. Coverage for state employees who suffer extreme stress due to mass casualty incident.	N.R.S. 616C.180
New Hampshire	No recovery for mental injuries except for first responders suffering from acute stress disorder or PTSD.	N.H. Rev. Stat. § 281-A:17-b
New Jersey	No recovery for mental injurys unless they are stressful and peculiar to the particular workplace. Depending on the facts PTSD can be considered an occupational disease.	N.J.S.A. 34:15–1 et seq.
New Mexico	Recovery for mental injuries that are generally outside of the usual work experience.	N. M. S. A. 1978, § 52-1-24
New York	No recovery for mental injuries unless the stress is greater than that experienced by employees who are similarly situated.	McKinney's Workers' Compensation Law § 2
North Carolina	No recovery for mental injuries unless the injury was due to stresses or conditions different from those borne by general public.	Pitillo v. N.C. Dept. of Environmental Health and Natural Resources, 2002, 566 S.E.2d 807
North Dakota	No recovery for mental injuries unless they arise from physical injury	NDCC, 65-01-02
Ohio	No recovery for mental injuries unless they have arisen from an injury, occupational disease, forced sexual conduct.	R.C. § 4123.01
Oklahoma	No recovery for mental injury unless arising out of a physical injury or diagnosed properly under the Diagnostic and Statistical Manual of Mental Disorders.	Oklahoma Statutes Title 85A §85A-13.
Oregon	No recovery for mental injuries unless they are outside the scope of usual employment, objectively stressful and recognized in the medical community. Presumption for PTSD if diagnosed through the DSM-5.	O.R.S. § 656.802
Pennsylvania	No recovery for mental injuries unless abnormal working conditions are established.	Frankiewicz v. Workers' Compensation Appeal Board (Kinder Morgan, Inc.), 177 A.3d 991, Cmwlth.2017.
Rhode Island	No recovery for mental injuries unless caused by emotional stress resulting from a situation of greater dimensions than the day-to-day emotional strain and tension which all employees encounter daily.	TITLE 28 Labor and Labor Relations. CHAPTER 28-34 SECTION 28-34-2
South Carolina	No recovery for mental injuries unless there is extraordinary or unusual stress.	Code 1976 § 42-1-160
South Dakota	No recovery for mental injuries unless they arise from a compensable physical injury.	SDCL § 62-1-1
Tennessee	No recovery for mental injuries unless the result of sudden or unusual stimuli	T. C. A. § 50-6-102
Texas	Coverage for first responders suffering from PTSD that is caused by one or more events occurring in the course and scope of the first responder's employment.	VV.T.C.A., Labor Code § 504.019
Utah	No recovery for mental injuries unless they arise from exatraordinary and sudden stress.	U.C.A. 1953 § 34A-2-402
Vermont	No recovery for mental injuries unless they are the result of extraordinary and unusual stress. There is a presumption for first responders that a proper diagnosis of PTSD is work related.	21 V.S.A. § 601
Virginia	No recovery for mental injuries unless the result of a sudden shock or fright.	VA Code Ann. § 65.2-400 – 401
Washington	No recovery for mental injuries unless the result of a sudden, tangible, and traumatic event that produced an immediate result.	West's RCWA 51.08.100
West Virginia	No recovery for mental injuries without a physical injury.	W. Va. Code, § 23-4-1f
Wisconsin	No recovery for mental injuries unless they arise out of an unexpected and unforeseen event greater than day to day emotional stress.	W.S.A. 102.01
Wyoming	No recovery for mental injuries unless caused by a compensable physical injury.	W.S.1977 § 27-14-102
Diagram A: a compilation of state laws and court decisions outlining the requirements for mental injury claims in all 50 states and the District of Columbia compiled by the author in Spring 2020.

*J.D. Candidate, Class of 2021, Drexel University Thomas R. Kline School of Law; Lebanon Valley College Class of 2018. I am an associate editor for Drexel Law Review and a member of the Kline Trial Team. I want to thank my parents and family for their constant support and encouragement. This piece is dedicated to all of the brave people we’ve lost to mental illnesses and those still fighting for their mental health. We see you. Keep fighting.

1 Miriam Heyman et al., The Ruderman White Paper on Mental Health and Suicide of First Responders, RUDERMAN FAMILY FOUNDATION, 7 (2008).

2Glenn Holsten, Beneath the Vest: Police Officer Alcoholism, Mental Health & Recovery, OC87 RECOVERY DIARIES, https://oc87recoverydiaries.org/police-officer-alcoholism/. [Hereinafter Holsten, Alcoholism]

3This author compiled Diagram A in the Spring of 2020 and may not reflect subsequent changes to the law.

4Presumption, BLACK’S LAW DICTIONARY (10th ed. 2014).

5See, e.g., Presumptive Legislation for Firefighter Cancer, FRCE, https://www.firstrespondercenter.org/cancer/toolsresources/presumptive-legislation-firefighter-cancer-state/ (last visited Aug. 28, 2020).

6Rebuttable Presumption Law and Legal Definition, U.S. LEGAL, https://definitions.uslegal.com/r/rebuttable-presumption/ (last visited Aug. 28, 2020).

7Worker’s Compensation, U.S. DEP’T OF LABOR, https://www.dol.gov/general/topic/disability/workerscompensation (last visited Aug. 28, 2020)

8 For a complete state-by-state list of the treatment of mental injuries under Workers’ Compensation systems, see Diagram A.

9 Yarborough v. Montana Mun. Ins. 938 P.2d 679, 680-682 (Montana 1997).

10 Id. at 681.

11 See e.g., What is Posttraumatic Stress Disorder, AMERICAN PSYCHIATRIC ASS’N, https://www.psychiatry.org/patients-families/ptsd/what-is-ptsd (last visited Aug. 28, 2020)

12Id.

13 Post-traumatic Stress Disorder (PTSD): Overview, MAYO CLINIC, https://www.mayoclinic.org/diseases-conditions/post-traumatic-stress-disorder/symptoms-causes/syc-20355967 (last visited Aug. 28, 2020)

14Id.; What is Posttraumatic Stress Disorder, supra, note 11.

15What is Posttraumatic Stress Disorder, supra, note 11.

16 Post-Traumatic Stress Disorder, NAT’L INST. OF MENTAL HEALTH, https://www.nimh.nih.gov/health/publications/post-traumatic-stress-disorder-ptsd/index.shtml (last visited Aug. 28, 2020)

17 Dr. John Violanti, PTSD among Officers: Impact on Critical Decision Making, U.S. DEP’T OF JUSTICE: DISPATCH (May 2018), https://cops.usdoj.gov/html/dispatch/05-2018/PTSD.html.

18 Id.

19 States that Have Enacted PTSD Presumption Provisions as of 6/25/19 and Statutory Language Related to Variables Affecting Cost and Frequency of Claims, ASS’N OF GOV’T RISK POOLS https://higherlogicdownload.s3.amazonaws.com/AGRIP/613d38fc-c2ec-4e1a-b31f-03fa706321aa/UploadedFiles/K4bPQtjuR2mlmEjU79ne_Presumption%20Law%20Table%20June%202019.pdf

20 Id.

21 Key Topics – Deployment Stress Management Program, U.S. DEP’T. OF STATE BUREAU OF MEDICAL SERVICES https://www.state.gov/key-topics-deployment-stress-management-program/ (last visited Aug. 28, 2020).

22 Id.

23 Id.

24 Id.