Presumptive laws

In Table 1, Part A we compare presumptions for mental injury with presumptions for other conditions. Cancer presumption is the most common (44 states), with cardiovascular disease (41 states), respiratory disease (39 states), and infectious disease (28 states) following.

Table 1 Presumption of Causation Statutes for Diseases associated with FIRE and EMS Responders by Type and State (Part A), and Dimensions of State Workers’ Compensation Laws related to Mental Injury (Part B).

Nine (9) state workers’ compensation systems include rebuttable presumptions of causation under certain circumstances for mental injury. Created between 2010 (Oregon) and 2020 (California), there is considerable variation in the language used and in qualifying factors claimants must establish for entitlement to the presumption. Maine, for example, does not set a minimum length of employment for eligibility, but does require the circumstances surrounding the onset of the occupational disease to have involved abnormal or unexpected stressors. Maine uses the term “average employee” as the comparison group for working conditions [18], while other states with presumptions of causation use the “general public” as the comparison group. Washington requires at least ten years of employment before a first responder-workers’ compensation claimant can use the PTSD presumption [19], but it does not specify the need for abnormal conditions.

During our research, some states added COVID-19 as a subject of presumption laws for first responders and health care providers. As such, it presented an opportunity to compare states by which enacted laws dealing with mental health (Fig. 2). Twenty-three (23) states created such presumptions. The populations to which these presumptions applied varied but typically included frontline health workers, essential employees, and first responders. In ten states, the governor created the presumption by executive order; in others states legislatures enacted presumptions, often related to enactment of broader COVID-19 legislation. Eleven (11) of these presumptions expired during the study.

Fig. 2

States with Presumption Laws for Mental Injury and COVID-19

Workers' Compensation Mental Injury Categories by State

We found presumptive laws covering mental injury to be relatively rare, but benefits for mental injury through traditional workers’ compensation system to be very common. As with all workers’ compensation claimants, those seeking compensation for psychological injury must meet state standards of eligibility. These laws are not exclusive to firefighters and EMS responders; instead, these benefits extend to all workers to whom the compensation system applies. State workers’ compensation laws for mental injury divide claims into three categories based on the etiology of the condition. We follow each category with an example:

Physical-to-mental injury (if an employee breaks a leg, develops depression from an inability to work);

Mental-to-physical injury (if an employee is stressed because of work pressures, has a heart attack on the job);

Mental-to-mental injury (if an employee faces stressful circumstances at work, either as a single incident or on an ongoing basis, which result in post-traumatic stress disorder).

Employees suffering from a physical-to-mental injury, where their mental health condition arose as a direct result of a workplace-related physical injury, are eligible for workers’ compensation in all states. Kentucky law specifies that an injury “shall include an occupational disease and damage to a prosthetic appliance, but shall not include a psychological, psychiatric, or stress-related change in the human organism, unless it is a direct result of a physical injury” [20]. Other states provide compensation even if the physical injury just contributed to the mental injury. Georgia case law provides that, “The physical injury need not be the precipitating cause of the psychic trauma; it is compensable if the physical injury contributes to the continuation of the psychic trauma” [21].

Employees suffering from mental-to-physical injuries, which are physical conditions that arise as a direct result of mental health stressors may be eligible for compensation in 44 states. Minnesota law states that, “Physical stimulus resulting in mental injury and mental stimulus resulting in physical injury shall remain compensable” [22]. Employees suffering from mental-to-mental injury, an injury involving purely mental stimuli, may be eligible for compensation in 40 states. In Montana, one of the states that does not provide such coverage, a firefighter was denied compensation for PTSD. The decision-makers did not regard his condition a physical-to-mental injury resulting from his burns, but as a mental-to-mental injury resulting from “emotional or mental stress surrounding a house-fire explosion” [23]. In all events, regardless of the nature and etiology of the injury, the other state requirements for compensation must be satisfied.

Definitions

States’ determination of eligibility for workers’ compensation for mental health conditions depends on language used to define key terms. For example, some states cover volunteer firefighters: Pennsylvania provides definitive coverage [24]; Alabama [25] and Montana [26] statutes state that employers may opt to provide coverage. States also vary in how they characterize a mental health condition—as an occupational disease or an injury. Some use both classifications depending on the circumstances leading to the onset of the condition. Missouri law refers to “mental injury” [27]. California [28] and Vermont [29] classify mental health conditions as injuries; Oregon law states that PTSD or Acute Stress Disorder “shall be presumed to be compensable as an occupational disease” for covered employees, which include paid—but not volunteer—firefighters [30]. Time limits to provide notice of illness to the employer and to submit a claim may vary based on these classifications; some states provide more time for those with occupational diseases due to the latency periods associated with certain illnesses.

Special coverage for first responders

Some states provide compensation for mental health conditions but only for certain populations, generally including first responders. Connecticut limits eligible claimants to “police officer, firefighter, emergency medical services personnel, Department of Correction employee, telecommunicator or health care provider” [31]. Texas provides that “post-traumatic stress disorder suffered by a first responder is a compensable injury…” under certain conditions [32]. States that have special coverage for first responders often fail to compensate for mental-to-mental injury for other employees (including Ohio, West Virgina; see Table 1).

Employment conditions

States factor in employment conditions when determining eligibility for workers’ compensation. States often characterize employment conditions by comparing populations. In Illinois, case law holds that employees need only establish that “the employment conditions, when compared with the nonemployment conditions, were the major contributing cause of the mental disorder” [33]. Maine provides compensation for mental-to-mental injuries, but the claimant must demonstrate by clear and convincing evidence that, “The work stress was extraordinary and unusual in comparison to pressures and tensions experienced by the average employee” [34]. Some states do not specify comparison groups for working conditions, but predicate compensation on causative stressors that must be unexpected, or working conditions that must be abnormal for that type of employment. Pennsylvania case law requires claimants to prove that their “psychic injury was more than a mere subjective reaction to normal working conditions” [35]. In Alaska, coverage for mental injury is “not payable for mental injury caused by mental stress, unless it is established that (1) the work stress was extraordinary and unusual in comparison to pressures and tensions experienced by individuals in a comparable work environment; and (2) the work stress was the predominant cause of the mental injury” [36]. Similarly, in Arizona, “A mental injury, illness or condition shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this chapter unless some unexpected, unusual or extraordinary stress related to the employment or some physical injury related to the employment was a substantial contributing cause of the mental injury, illness or condition” [37]. Colorado law specifies that, “Accident”, “injury”, and “occupational disease” shall not be construed to include disability or death caused by or resulting from mental or emotional stress unless it is shown by competent evidence that such mental or emotional stress is proximately caused solely by hazards to which the worker would not have been equally exposed outside the employment [38]. Each of these critical terms—abnormal, extraordinary, unusual—is subject to interpretation by administrators and judges. What work conditions might be considered usual for first responders during a pandemic?

Specified qualifying events required

Perhaps to avoid ambiguity inherent in terms like abnormal and unusual, some states allow first responders compensation for mental injuries only if the employee has witnessed a specified traumatic event. In Florida, the list includes, “Seeing for oneself a deceased minor” and “Directly witnessing an injury, including an attempted suicide … if the person was injured by grievous bodily harm of a nature that shocks the conscience” [39]. Connecticut lists six events, including witnessing a deceased minor [40]. Although this type of statute imparts less flexibility, it avoids difficulty for administrators and courts in identifying unusual work stress. This type of statute, however, ignores stress that can be experienced cumulatively by first responders when every day is stressful–despite absence of a single identifiable stressful event. What type of injury “shocks the conscience?”.