To read more articles from the Bar News’ August Practice Area Section, Workers’ Compensation Law and Personal Injury Law, you can find the issue at www.nhbar.org/publications/BarNews.

August 21, 2019

By Jared O’Connor

On July 17, 2019, Governor Sununu signed into law Senate Bill 59, the culmination of months’ worth of hearings conducted by the statutorily-created Commission to Study the Incidence of Post-Traumatic Stress Disorder in First Responders. Specifically, the Commission was charged with assessing the degree to which workplace culture, legal and administrative hurdles in filing claims affected first responders’ willingness to seek appropriate treatment for work-related PTSD, and what legal remedies might be afforded in response.

In its final report submitted to the governor, the Commission recognized that existing law “clearly countenances stress claims,” but it was felt that the general awareness of this fact was low, perhaps leading to workers’ reluctance to file workers compensation claims for job-related mental stress.

Also contributing to this reluctance appeared to be a perception among many such workers that these claims were not only routinely denied (thus delaying compensable treatment), but that even filing such a claim could lead to “blackballing” of the affected worker.

Testimony taken from clinical psychologists and therapists who specialized in treating first responders affected by PTSD and its shorter-term diagnostic cousin, Acute Stress Disorder (ASD), confirmed that for this population, some degree of PTSD/ASD all but inevitably follows from the day-to-day trauma to which first responders are exposed.

The Commission heard about or directly from workers who were shot, assaulted, or who routinely encounter the dead, dying or disfigured, including children. One need hardly be a psychologist to predict how this would affect a worker’s psyche.

The Commission then considered whether it made sense to include in the law a presumption that PTSD/ASD which arises in this population of workers is causally related to their employment. Defining the class of workers to which such a presumption might apply was also debated. It is possible, of course, that a worker in any occupation might develop PTSD/ASD as a result of exposure to an unexpected on-the-job trauma.

Consider, for example, a teacher involved in a school shooting incident; an office worker who becomes trapped in a burning building; a Domino’s delivery driver involved in a gruesome car accident; or a convenience store clerk who is held up at gunpoint.

While the current definition of “injury” under workers’ compensation law unquestionably covers workers like this who develop stress-related claims, these events are by their very nature quite rare. This is to be distinguished from the kind of physical trauma and mental stress that is inherent in the very job of being a first responder. A schoolteacher, when hired, is not willingly signing up to develop PTSD/ASD. But a cop, a firefighter, an EMT, a corrections officer? These workers understand that high stress, trauma and frequent exposure to circumstances most of us will never experience, or would actively run from, is part of the job description.

Accordingly, the Commission ultimately came to four conclusions. First, that explicitly calling out PTSD and ASD as injuries covered by workers compensation might help encourage first responders to seek treatment when experiencing symptoms — “that way the employees will know it is covered through Worker’s Compensation.”

Second, the members of the Commission voted 10-2 to add a presumption to the law that PTSD/ASD in first responders is work-related. Third was to expand the class of “first responders” to which this presumption would apply, and fourth was to continue the Commission’s work for another year to review how the proposed changes were working in practice.

As signed into law by the Governor, the final version of SB59 made the following statutory changes.

The definitional section of the statute, 281-A:2,XI was amended to state that “‘Injury’ or ‘personal injury’ shall not include diseases or death resulting from stress without physical manifestation, except that, if an employee meets the definition of an ‘emergency response/public safety worker’ under RSA 281-A:2, V-c, the terms ‘injury’ or ‘personal injury’ shall also include acute stress disorder and post-traumatic stress disorder.”

The effect of this change is that, for all employees who are not “emergency response/public safety workers,” any mental stress claim continues to require some element of physical manifestation to be compensable. But, emergency response/public safety workers who present with ASD/PTSD no longer need exhibit physical symptoms to be covered.

The class of worker to receive this benefit was also expanded, by amending the definition of “emergency response/public safety worker” at RSA 281-A:2,V-c to include the oft-overlooked 911 operators who — again — are acutely connected to intense trauma as part of their everyday work. The definition now reads “call, volunteer, or regular firefighters; law enforcement officers certified under RSA 106-L; certified county corrections officers; emergency communication dispatchers; and rescue or ambulance workers including ambulance service, emergency medical personnel, first responder service, and volunteer personnel.”

Finally and most significantly, the benefit for these first responders was extended to add a burden-shifting presumption of causal relationship to work, at RSA 281-A:17-c: “Notwithstanding RSA 281-A:2, XI and XIII, RSA 281-A:16, and RSA 281-A:27, there shall be a prima facie presumption that acute stress disorder and post-traumatic stress disorder in an emergency responder, as defined in RSA 281-A:2, V-c are occupationally caused.”

While the definitional changes took effect upon passage and are already law, the presumption does not become effective until January 1, 2021. The Commission will remain in force through November 2020 to assess whether the gradual rollout of this change has the intended salutary effect on New Hampshire’s first responders, and whether additional changes, substantive or procedural, may be required.

 

Note: the author was appointed as a member of the Commission described in the article. SB59 also made minor modifications to the standards for establishing work-related cancer, heart and lung disease in firefighters; discussion of these changes is beyond the scope of this article

 

Jared O’Connor, a shareholder at Shaheen & Gordon, has focused his career exclusively on the representation of injured workers. He was appointed as by the New Hampshire Association of Justice to sit as a member of the Governor’s PTSD Commission described in this article.