Workers’ Compensation Benefits for Post-Traumatic Stress Disorder (PTSD)

Written by Donald T. DeCarlo, Esq. and Roger Thompson, WCP

Definition of PTSD

For those who came of age during the middle of the past century, many recall references to “shell shock” and “battle fatigue” brought on by  the horrific experiences that many young men and women were confronted with during the first and second world wars.  This condition, now referred to as post-traumatic stress disorder (PTSD), is a serious mental condition that may develop after a person has experienced or witnessed a traumatic or terrifying event in which serious physical harm occurred or was threatened.

Most people who experience a traumatic event will have reactions that may include shock, anger, nervousness, fear, and even guilt. These reactions are common, and for most people, they go away over time.  For a person with PTSD, however, these feelings continue and even increase, becoming so strong that they keep the person from living a normal life. People with PTSD have symptoms for longer than one month and cannot function as well as before the event occurred.

PTSD in Workers’ Compensation

Claims for PTSD, because they generally lack objective signs of physical injury, are categorized as mental claims.  Mental claims in the workers’ compensation program  represent a tiny percentage of all claims; estimates put claims with a mental component at about one percent of claims overall, although this figure varies by state. Even though they represent a relatively small percentage of claims, mental injury claims arising from workplace activities or stressors are on the rise and can create major issues for both the employer and the insurer.  An estimate from the National Institutes of Health (NIH) estimates that the cost to the American economy of mental claims and/or stress-related claims is close to $150 billion per year.  This estimate is reflected in decreased productivity, absenteeism and significant increases in medical treatment costs.

One of the underlying cornerstones of the workers’ compensation program is that the employer generally takes the employee as the employer finds him or her, such that all the medical consequences that flow from a workplace injury or event are compensable.[1]  Employers, claims administrators, and insurers have begun to view PTSD as an ongoing and difficult challenge to claims management and administration. A few of those entities are beginning to take a proactive role in helping employees identify if and when they might be at risk of PTSD. They see the prevention and early identification of PTSD as an important part of their overall risk management.

Workers’ Compensation Coverage for Mental Claims

An example of the complexity of the cause-effect link in mental workers’ compensation claims is seen in claims based on PTSD.  Most commonly thought of in connection with soldiers and wartime, concerns for coverage of PTSD arose after the September 11 terrorist attacks. Though few would doubt the psychological impact of witnessing the devastation in New York and Washington D.C., or more recently the Sandy Hook elementary school tragedy or the Orlando nightclub shooting first-hand, by definition symptoms of PTSD do not appear for months or years after the event, making their connection to the workplace event difficult to assess.

As stated previously, because the employer generally takes the employee as the employer finds him or her, all the medical consequences and a portion of the lost income that flow from the primary injury are covered.  Although there are many factors within the workers’ compensation setting that make PTSD claims difficult to anticipate and manage, two immediately come to mind. First, unlike other comorbid factors—e.g., obesity, diabetes, hypertension, and some cardiac conditions—that are relatively easy to identify through observation and medical testing, PTSD almost always lurks silently in the shadows, only to become manifested when the employee is confronted with a physical or psychic trauma. Second, PTSD, like other mental injury conditions, can have a significantly subjective component.

State Legislative Approaches to Mental Claims Including PTSD

State workers’ compensation laws tend to treat mental claims unaccompanied by a physical stimulus in one of four ways.  The following describes the various states’ approaches to the subject of mental-mental claims.  While some states, either through statute or case law, serve to bar compensation benefits for mental-mental claims, other states have established various thresholds to compensability.

• Group One: Certain states, including Alabama, Arkansas, Connecticut, Florida, Georgia, Idaho, Kentucky, Minnesota, Montana, Nevada, New Hampshire, Ohio, Oklahoma, and Wyoming, refuse to award compensation for so-called mental-mental claims, including PTSD, under any circumstances.
• Group Two: Mental-mental cases are compensable, but only if the stimulus is “unusual.” Colorado, Illinois, Iowa, Louisiana, Maine, Mississippi, Missouri, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina and Vermont fall within this group. In most of the decisions, “unusual” means unusual for a typical person holding the claimant’s job. Thus, a police officer is expected to be able to handle some sorts of stress within his or her ordinary duties that would be deemed “unusual” for someone else in the general public.
• Group Three: Mental-mental cases are compensable, but only if the mental stimulus is sudden. Colorado, Louisiana, Maryland, Tennessee and Virginia fall within this group. There is some spill-over between Groups Two and Three inasmuch as courts in those states have sometimes spoken as if the terms “unusual” and “sudden” were synonymous.
• Group Four: Mental-mental cases are generally compensable, whether or not the mental stimulus is sudden or unusual. Alaska, California, and Hawaii are generally included in this group.

States not found in the above listing generally have decisions falling into more than one grouping. Notwithstanding the above-noted categorization, some states limit mental stress claims related to bona fide personnel decisions. Among them are California, New York, North Dakota, Massachusetts, Maine, Texas and Utah. California further limits mental claims, requiring the employee to have been an employee for at least six months before a claim can be considered valid.

Judicial Holdings on PTSD Claims in New York

In New York, injuries or death resulting solely as a result of mental disturbances and emotional strain brought on by the employment are compensable. In a 1975 decision, the New York Court of Appeals reversed a lower court order where the claimant was incapacitated by severe depression caused by the discovery of her immediate supervisor’s body after he had committed suicide.[2] In the opinion, the Court of Appeals noted that “Having recognized the reliability of identifying psychic trauma as a causative factor of injury in some cases and the reliability by identifying psychological injury as a resultant factor in other cases, we see no reason for limiting recovery in the latter instance to cases involving physical impact. There is nothing talismanic about physical impact. We would note in passing that this analysis reflects the view of the majority of jurisdictions in this country and in England.”

The basic policy of workers’ compensation is that if the injury was accidental and arose in the course of employment, then recovery should be allowed.[3] As one might expect, judicial rulings on coverage for workers’ compensation mental claims can be found on both sides of the scale of justice.  Repeating the New York rule that mental injuries caused by work-related stress are compensable if the claimant can show that the stress that caused the injury was “greater than that which other similarly situated workers experienced in the normal work environment,” a New York appellate court affirmed a decision by the state’s Workers’ Compensation Board that denied benefits to a claimant who alleged that work-related stress caused her to develop depression, anxiety and post-traumatic stress disorder.  The court observed that medical proof established that claimant sustained incapacitating mental trauma as a result of her work.  But while claimant complained of longstanding harassment at the hands of her immediate supervisor, testimony by the supervisor contradicted those allegations and offered reasonable explanations for his behavior. Claimant testified she experienced more severe mental distress and stopped working after a staff meeting at which she was singled out and humiliated by one of her superiors, but the employer’s witnesses directly stated that claimant had not been singled out in any way at the meeting and that she did not appear to be upset at the time. The Board was free to credit the testimony of the employer’s witnesses.[4]

In another New York decision, the appellate court affirmed a decision of the state’s Workers’ Compensation Board that denied a corporate bond trader’s application for an award of reduced earnings that he claimed were caused by a PTSD condition brought about by the September 11, 2001 terrorist attack on the World Trade Center.  The broker worked on the 84th floor of the World Trade Center South Tower and escaped while the terrorist attack transpired.  The court agreed with the Board that while there was no dispute that the bond trader suffered from PTSD, there was no medical opinion that he was incapable of engaging in his former profession and in fact, the trader engaged in his former profession for more than seven years after the attack and did not claim lost wages for most of that period.  His lower earnings appeared to have been caused by several voluntary employment moves he made, as well as his decision to start what turned out to be an unsuccessful bond brokerage business of his own.[5]

It is important to recognize that an injury which is solely mental and based on work-related stress or strain which results from a lawful personnel action by the employer is not compensable if the evaluation, transfer or demotion, termination, or other disciplinary action was done in good faith.[6]

When such action is alleged to have caused an injury from mental stress, the Board will have threshold questions of whether an “active participant” to an accident that results in a mental disability is entitled to file for workers’ compensation benefits.

The participation has been determined to be sufficient if the claimant is not actually in the physical accident, such as an automobile collision involving two or more vehicles, but suffers stress as a result of witnessing the event.  This result is demonstrated where the Board and appellate division both agreed that a woman delivery person who, while driving her delivery truck, witnessed her daughter being killed in an automobile accident.  The mother was entitled to benefits for stress, depression, and exacerbation of a gastrointestinal problem caused by the psychological trauma.  Using the Wolfe decision as precedent, the conclusion was reached that the claimant was an “active participant” in the accident and that her injury arose out of the employment.[7]

Coverage under the standard workers’ compensation policy is composed of two parts: Part One coverage sets forth the insurer’s agreement to provide all benefits required of the insured by the workers’ compensation law of the state(s) covered, while Part Two of the policy establishes the insurer’s agreement to pay all sums—subject to policy limits—on account of the legal liability of the employer for damages because of bodily injury to an employee. Certain exclusions pertain to coverage under Part Two.

Such exclusions under Part Two include liability assumed under a contract; punitive or exemplary damages; injury to an employee while employed in violation of law with the actual knowledge of the employer; any obligation imposed by certain laws or benefits of another state; intentionally caused or aggravated injuries; or bodily injury occurring outside the United States or Canada unless temporarily of these countries. A further exclusion applies to “damages arising out of coercion, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation, discrimination against or termination of any employee, or any personnel practices, policies, acts or omissions.”

This final exclusion is designed to preclude an employee from bringing an action for damages based on any of the situations listed.  These situations reflect specific areas where the allegation may represent the potential for PTSD claims.  In New York, PTSD, where found compensable, are payable under Part One of the standard workers’ compensation policy.

State Legislative Activity to Cover First Responders

Legislative efforts to make it easier for first responders to receive workers’ compensation benefits for mental stress injuries such as PTSD have cropped up recently in several states with varying degrees of success.  In Colorado, House Bill 1229, which would expand state law to clarify the definition of a “psychologically traumatic event” and “serious bodily injury” under the compensation law, passed the Colorado House and would also require mental impairment claims to be supported by testimony from a licensed psychiatrist, rather than a physician, or a psychologist, according to the bill’s analysis.  If signed into law, it will become effective on July 1, 2018.

Earlier this month, Vermont’s House of Representatives passed a presumption bill that would provide compensation benefits to first responders who suffer from PTSD resulting from on-the-job experiences. The bill limits claims to injuries that occur within three years of the last active date of employment and would disallow PTSD claims for triggering events that can be proved to be non-occupational.

Florida, where first responder PTSD issues are in the spotlight after an Orlando police officer was denied compensation benefits for PTSD for his role in responding to the Orlando nightclub shooting, also is considering making treatment for PTSD more accessible under its workers’ compensation law via two bills introduced earlier this year. Senate Bill 516 would amend an existing law that has barred police and firefighters from claiming mental injuries under workers’ compensation. The bill states that a mental injury must be “demonstrated by clear and convincing medical evidence” and must be connected to a specific incident. An alternative bill, Senate Bill 1088, would provide workers’ compensation for Florida firefighters, paramedics, emergency medical technicians, and law enforcement officers who suffer a mental injury—regardless of whether they have an accompanying physical injury—and have a “preponderance” of evidence showing the mental injury arose out of their work, according to a copy of the bill posted online. The legislation would also provide survivor benefits to family members if the mental injury results in the death of the first responder.

In April, the New York State Senate passed its $153 billion 2017-2018 state budget that included reforms to its workers’ compensation law.  The new rule prevents the New York State Workers’ Compensation Board from disallowing a first responder’s claim for mental injury based on extraordinary work-related stress incurred if the stress is found to be not greater than that which usually occurs in the normal work environment.

These bills are important not only for providing access to services that first responders might need, but also for reducing the stigma around seeking treatment for mental health issues.  At the same time, advocates for employers and insurers are cautious about these PTSD bills, noting that they should be crafted to provide reasonable limits and evidence-based standards to avoid subjective claims.

Recognizing and Treating PTSD

In attempting to address and reduce the potential for PTSD claims, it is important to recognize the symptoms of PTSD.  Most often they begin within three months of the event. In some cases, however, they do not begin until years later. The severity and duration of the illness vary and some people recover within six months, while others suffer much longer.

According to the National Alliance on Mental Health, symptoms of PTSD often are grouped into four main categories, including:

• Reliving: People with PTSD repeatedly relive the ordeal through thoughts and memories of the trauma. These may include flashbacks, hallucinations, and nightmares. They also may feel great distress when certain things remind them of the trauma, such as the anniversary date of the event.
• Avoiding: The person may avoid people, places, thoughts, or situations that may remind him or her of the trauma. This can lead to feelings of detachment and isolation from family and friends, as well as a loss of interest in activities that the person once enjoyed.
• Increased arousal: These include excessive emotions; problems relating to others, including feeling or showing affection; difficulty falling or staying asleep; irritability; outbursts of anger; difficulty concentrating; and being “jumpy” or easily startled. The person may also suffer physical symptoms, such as increased blood pressure and heart rate, rapid breathing, muscle tension, nausea, and diarrhea.
• Negative Cognitions and Mood: This refers to thoughts and feelings related to blame, estrangement, and memories of the traumatic event.

PTSD is not diagnosed until at least one month has passed since the time a traumatic event has occurred. If symptoms are present, the doctor will begin an evaluation by performing a complete medical history and physical exam. Although there are no lab tests to specifically diagnose PTSD, the doctor may use various tests to rule out physical illness as the cause of the symptoms. If no physical illness is found, the individual may be referred to a psychiatrist, psychologist, or other mental health professional who is specially trained to diagnose and treat mental illnesses. The diagnosis of PTSD is based on reported symptoms, including any problems with functioning caused by the symptoms. The doctor then determines if the symptoms and degree of dysfunction indicate PTSD—it is then diagnosed if the person has symptoms that last for more than one month.

The goal of PTSD treatment is to reduce the emotional and physical symptoms, to improve daily functioning, and to help the person better cope with the event that triggered the disorder. Treatment may involve psychotherapy (a type of counseling), medication, or both. Psychotherapy for PTSD involves helping the person learn skills to manage symptoms and develop ways of coping. Therapy also aims to teach the person and his or her family about the disorder, and help the person work through the fears associated with the traumatic event.

Furthermore, today’s workplace puts great pressure on employees to be productive and cost-efficient. Many workers live with fear of job loss associated with “downsizing” or with the growing movement into robotics.  All of these factors can breed stress and culminate in claims for PTSD. Employers can take some basic steps to deal with these factors in the workplace:

• Be alert to signs of stress among employees, and solicit input from employees and managers on this issue. Be aware that certain events, such as layoffs, may trigger stress levels in employees beyond what is to be expected on a day-to-day basis.
• Make employee assistance program (EAP) services available so that workers have ready access to help with dealing with stress.
• In the event of a severe workplace trauma, arrange for on-site intervention and counseling services. Though these steps will not make a business immune from the possibility of a workers’ compensation claim with a mental component, they will, at the least, help make stress recognition and prevention part of the workplace ethic.

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[1]  Larson’s Workers’ Compensation Law, § 10.01 et seq.
[2] Wolfe v Sibley Lindsay & Curr Co., 230 N. E. 2d 603 (1975)
[3] Larson, Workers’ Compensation Law, § 2
[4]  In the Matter of Guillo v. New York City Housing Auth., 2014 N.Y. App. Div. (2014)
[5]  In the Matter of Launer v. Euro Brokers, 2014 N.Y. App. Div. LEXIS 2088 (March 27, 2014)
[6] See New York Workers’ Compensation Law § 2 (7) effective on and after July 1, 1990.
[7] Wyman v. Maidas Flower Shop, 1 A.D. 3d 728 (2003)

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Donald T. DeCarlo, Esq. is the principal of an independent law firm in Fresh Meadows, NY, which focuses on mediation/arbitration and regulatory and insurance counseling. Previously, he was Partner at Lord Bissell & Brook LLP and headed its New York office. He was Senior Vice President and General Counsel of The Travelers Insurance Companies, Deputy General Counsel for its parent corporation Travelers Group, Inc. and Executive Vice President and General Counsel for Gulf Insurance Group.
Mr. DeCarlo is a Certified ARIAS-US Arbitrator and Umpire, a Master Arbitrator for the NYS Insurance Department, and an Arbitrator for the American Arbitration Association and Center for Dispute Resolution. He is the Founder, Chairman and President of The American Society of Workers Comp Professionals, Inc. (AMCOMP). In addition, Mr. DeCarlo is a Director of 17 companies in the insurance industry.
Mr. DeCarlo has authored numerous scholarly articles in legal and trade journals and is a co-author of two books on workers compensation insurance, Workers Compensation Insurance & Law Practice – The Next Generation and Stress in the American Workplace – Alternatives for the Working Wounded.
Mr. DeCarlo Chairs an Advisory Committee of the World Trade Center Captive Insurance Company, and formerly served as Chairman and Commissioner of the New York State Insurance Fund (NYSIF) for 10 years. He also served as an Inspector for the NYS Athletic Commission.

Roger Thompson is a retiree from Travelers Insurance following thirty years of service in the area of Workers Compensation. Prior to his retirement, Mr. Thompson was Director for Worker’s Compensation Legislative and Regulatory Issues. A graduate of the University of California, Santa Barbara, he began his career with Travelers in Des Moines, Iowa in 1969 and subsequently transferred to the Home Office in Hartford, Connecticut in 1976.

During his career with Travelers, Mr. Thompson worked with various trade associations including the American Insurance Association (AIA), The International Association of Industrial Accident Boards and Commissions (IAIABC) and served on the Research Committee at the Workers Compensation Research Institute (WCRI).

Mr. Thompson is married with two sons and four grandchildren.