By, Dawn Kennedy
I doubt that any reader of At the Ready would argue that responders see unspeakable horrors on the job, whether on paid, volunteer, reserve, or special deployment status. “Studies have demonstrated that, after participating in disaster responses, first responders experience elevated rates of depression, stress disorders, and posttraumatic stress disorder (PTSD) for months and sometimes years.”1 Addiction and substance abuse issues may be symptoms of a “self-medicating” response to Post Traumatic Stress Disorder (PTSD). Untreated PTSD will continue to progress, and as many of you have likely seen, until it affects the job, the family, and other areas of a responders personal and professional life.
The key word in that sentence is “UNTREATED.” The recognition of PTSD and depression among the first responder population has been well documented. While there may be cultural hesitation within responder agencies, that wall is starting to crumble. A responder with PTSD may not seek treatment out of fear of losing the job, or fear that eligibility for promotion or other career advancement may be lost. We touched on this topic, the article PTSD and Responders, The Silent Partner, by Mark Lamplugh in the September 2013 issue of At the Ready. In that article we discussed the availability of the federal Family Medical Leave Act (FMLA) and receiving reasonable accommodations under the American’s with Disabilities Act (ADA). Mark’s article also provided resources related to confidentiality and HIPPA regulations.
Other positive steps are taking shape to give greater access to diagnosis and treatment of PTSD, depression, and other mental health conditions related to the work of first responders. An article in the Spring 2011 Journal of Law, Medicine, and Ethics directly addresses some of the legal issues relating to workers compensation and PTSD in first responders:
“…three key areas that are fundamental to protecting and promoting first responders’ mental health: (1) mental health screening for first responders; (2) licensure portability of mental health care providers; and (3) workers compensation for mental health claims.”2
Screening for mental health issues should occur before, during a disaster response, and after a traumatic call. Not a debriefing, a mental health screening. Over time, years in the field, many responders don’t become “hardened” to the stresses on the job or the horrors they have witnesses. They develop depression and PTSD, and often aren’t even aware of it. “Although mental health conditions may be overlooked because they can be difficult to visibly identify and diagnose, their presence may significantly affect first responders’ ability to function.”3 Timely diagnosis and treatment of responders should be the intent of these screenings.
The second area, licensure portability, will allow more mental health professionals to respond into areas where first responders need support. During a disaster response, many states have emergency policies and procedures that will deploy licensed mental health care providers into regions where they are not licensed. But during non-emergencies, “mental health care providers are often in short supply.”4 Responders in smaller or more rural areas may not have ready access to mental health resources. This is being positively addressed by the leading Associations for professional counselors and mental health specialists. Announced on August 2, 2015:
“The American Mental Health Counselors Association (AMHCA), the Association for Counselor Education and Supervision (ACES), and the National Board for Certified Counselors (NBCC) have jointly endorsed a plan for counselor licensure portability. This plan from leading counselor organizations establishes a regulatory platform allowing licensed counselors to move between and practice in multiple states.”5
A recent slate of state legislation has been introduced to address another barrier to treatment: cost. Workers Compensation is a “no fault” insurance to treat and rehabilitate on the job physical injury. Workers Comp is not generally available for PTSD. Where it is available, it may not be equally available to all responders, because coverage may require responders be on full-time paid responder employment. And this is a concern raised in the Journal of Law, medicine, and Ethics:
“Equity is implicated because employees, including first responders, who experience work-related mental health harms should receive the same workers’ compensation coverage as those who face work-related physical health conditions. Prevalent mental health conditions such as PTSD, which can be triggered by work-related mental stimuli, can be as debilitating as physical injuries.”6
At the federal level, The U.S. Department of State provides the Federal Acts that cover PTSD for federal employees.
“Employees working in high threat environments such as Afghanistan, Iraq, Pakistan, Libya and Yemen may develop symptoms of Post-Traumatic Stress Disorder (PTSD) as a result of their performance of duty. PTSD may be basis for a workers’ compensation claim under the Federal Employees’ Compensation Act (FECA). The FECA is administered by the U.S. Department of Labor, Office of Workers’ Compensation Programs (OWCP). If an OWCP claim is accepted, benefits may include payment of medical expenses and disability compensation for wage loss.”
More research is required to determine whether “high stress environments” cover federal first responder employees. I would argue that disaster response is a “high stress” environment. The recent, and tragic deaths of wildland firefighters on federal lands, undoubtedly affected their fellow firefighters. I would hope that federal employees in high stress jobs, even working seasonally for federal agencies, would receive workmen’s compensation coverage under this provision. But this is the federal statute. Covering federal employees. What about the states? The states are the level of government who administer workmen’s compensation coverage. Any employee is covered, because employers pay into the workmen’s compensation insurance fund.
Honestly, the states, after admittedly cursory research appear to be a crap shoot. On May 22, 2015, Connecticut expanded its workers compensation system for first responders. Opposition to the expansion argues that the state was “writing a blank check”, with no idea how much treatment and rehabilitation of PTSD would cost.
New Jersey has set forth five material elements to a Workers’ Compensation claim for PTSD:7
1. The working conditions were objectively stressful;
2. The believable evidence must support a finding that the worker reacted to them as stressful;
3. The objectively stressful working conditions must be "peculiar’’’ to the particular work place;
4. There must be objective evidence supporting a medical opinion of the resulting psychiatric disability in addition to the “bare statement of the patient.” (quoting Saunderlin v. E.I. Du Pont Co., 102 N.J. 402, 412, 508 A.2d 1095 (1986));
5. The workplace exposure must have been a “material” cause of the disability.
Current Status of States as to Mental Claims, Including PTSD8 (From the Jun 2014 LexisNexis Article)
Currently, the states tend to treat mental claims unaccompanied by a physical stimulus in one of four ways – (emphasis mine)
Group One: A number of states, including Alabama, Arkansas, Connecticut, Florida, Georgia, Idaho, Kentucky, Minnesota, Montana, Nebraska, 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 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. As you can see, there is some spill-over between Groups Two and Three. 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 (if your state isn’t named in any of the groups, it is because it has decisions falling into more than one category).
The encouraging news is that progress is being made toward providing greater access and early diagnosis and treatment for first responders. Federal laws protect the privacy of the responder (HIPPA) and provide for a 12 week leave of absence (if required) for treatment (FMLA). Licensure portability of Counselors under the August 2015 announcement from the professional counseling organizations will likely provide greater resources to responders in areas where non-emergent treatment is currently unavailable or scarce.
The states are taking greater steps to expand mental health coverage for first responders. And they should. From my “minimal” research for this article, depression and PTSD often develop months or even years after the traumatic incident. Making the mental health of our responders a priority means; careful screening, ongoing assessment, and training for department personnel in the recognition of symptoms.
This month, the 14th anniversary of the terror attacks on 9/11, discuss PTSD and depression. Remove the stigma. You are not weak, you have just been witness to the most horrific things people do, often to each other. If possible, get a mental health screening for your agency personnel. If you are in the Southeast region and can attend our Region IV All Responder Expo in Columbus, GA, come take FREE classes on PTSD Awareness, stress management, and other relevant topics affecting first responders. Stay safe, and be well.
1-4. Rutkow, Gable, and Links, Protecting the Mental Health of First responders: Legal and Ethical Considerations, Journal of Law, Medicine, and Ethics, Spring 2001, pp.56-59. Citing: E.g., J. M. Stellman, R. P. Smith, and C. L. Katz et al., “Endur¬ing Mental Health Morbidity and Social Function Impairment in World Trade Center Rescue, Recovery, and Cleanup Work¬ers: The Psychological Dimension of an Environmental Health Disaster,” Environmental Health Perspectives 116 (2008): 1248-1253; C. S. Fullerton, R. J. Ursano, and L. Wang, “Acute Stress Disorder, Posttraumatic Stress Disorder, and Depression in Disaster and Rescue Workers,” American Journal of Psychiatry 161 (2004): 1370-1376; S. Ozen and A. Sir, “Frequency of PTSD in a Group of Search and Rescue Workers Two Months After 2003 Bingol (Turkey) Earthquake,” Journal of Nervous and Mental Disease 192 (2004): 573-575.
5. AMHCA, ACES and NBCC Jointly Endorse Plan for Licensure Portability, 2015
6.Rutkow, Gable, and Links, Protecting the Mental Health of First responders: Legal and Ethical Considerations, Journal of Law, Medicine, and Ethics, Spring 2001, pp.56-59.
7-8. Thomas A. Robinson, The Post-Traumatic Stress Disorder Dilemma for Worker’s Compensation Claims, LexisNexis Legal Newsroom, Workers Compensation Law, June 20, 2014