Ohio law has long held that employees are not covered under the workers’ compensation system for mental conditions that do not arise from a physical injury. Provisions in the BWC budget bill (Sub. H. B. No. 80-passed by the Ohio House on June 5, 2019) could change that. If Ohio legislators watch “Tomb Raider: The Cradle of Life” however, they might have second thoughts.
In the movie, Lara Croft is hired to find Pandora’s Box, before an evil scientist can get his hands on it. Lara and Terry Sheridan set out on a global adventure in an attempt to obtain the box. When they finally locate it, Terry attempts to take Pandora’s box as a prize for helping find it. Lara is forced to kill him. She contemplates opening the box but decides to let the box rest untouched, saying: “some things are not meant to be found.”
That’s a long way of saying that, no matter how tempting it might seem, some things are better left alone. The Ohio Supreme Court opened the door to “mental-mental” claims (psychological conditions which did not arise out of a physical injury) in 2001. The Ohio legislature promptly slammed it shut. Opening that door again, even a small crack, could eventually lead to “mental-mental” claims filed in all claims. For Ohio employers at least, that’s a scary possibility.
Sure it’s tempting (and right) to compensate first responders for psychological trauma that they sustain on the job. Underpaid, brave, and selfless, first responders step in to help others in situations that most people would flee from. They are regularly exposed to things that the rest of us could never imagine, and psychological consequences from that job are unsurprising. However, sometimes doing what seems to be the “right” thing in one case can have unintended negative consequences when looking at the big picture. I’ll discuss ways in which legislators can help out first responders with PTSD without opening Ohio’s workers’ compensation system up to “mental-mental” claims below.
What exactly does the proposed budget bill say about allowing PTSD claims for first responders?
The bill would amend Ohio Revised Code Section 4123.01 to provide that a compensable injury includes those that arise: “where the claimant is a peace officer, firefighter, or emergency medical worker and is diagnosed with post-traumatic stress disorder that has been received in the course of, and has arisen out of, the claimant’s employment as a peace officer, firefighter, or emergency medical worker.”
Unlike prior legislative attempts to provide first responders with PTSD coverage, the proposed legislation contains no limitations on the compensation or medical benefits for this coverage. Instead, the mental injury would be treated like any other injury that workers’ compensation currently covers.
Although a financial analysis of the new bill is not available, according to an article from the Ohio Chamber of Commerce, when the Bureau of Workers’ Compensation analyzed the fiscal impact of similar legislation introduced last General Assembly they found that providing that coverage for one year would increase costs on an annual basis by an estimated $98.4 million. As the article pointed out, that analysis was based upon coverage capped at one year. Presumably the financial impact of this legislation would be greater, since there is now no coverage limit.
Ohio’s History With Workers’ Compensation Claims for Psychological Conditions
Historically, Ohio law does not provide for coverage of psychological conditions that do not arise as the result of a work related injury. In 2001, however, the Supreme Court approved workers’ compensation benefits in a claim for depression that arose after the claimant accidentally killed a coworker. The claimant did not suffer any physical injury himself. The court reasoned that the depression arose from a workplace injury, and that nowhere in the statute did it indicate that the injury must be to the claimant him or herself. Bailey v. Republic Engineered Steels, Inc.
In response to the Bailey decision, in 2006 the Ohio legislature amended the law to read that a compensable injury does not include “[p]sychiatric conditions except where the claimant’s psychiatric conditions have arisen from an injury or occupational disease sustained by that claimant.” R.C. 4123.01(C)(1)
In 2013 the Supreme Court considered the case of Armstrong v. John R. Jurgensen Co.
Armstrong was involved in work related motor vehicle accident. He exited the dump truck and called 9-1-1. Armstrong then noticed that the other driver was not moving and that blood was coming from his nose; he suspected the driver was dead. After being transported to the emergency room, Armstrong was treated for physical injuries and released. He was distressed to learn, while in the emergency room, that the other driver had, in fact, died. Armstrong’s claim for PTSD was denied. The Supreme Court reasoned that although Armstrong’s PTSD clearly arose from the accident, the language of R.C. 4123.01(C)(1) states that to be compensable, the mental condition must have arisen from the actual injuries sustained by the injured worker. Given the nature of PTSD (which arises not from the injuries, but from the recollection of the event itself), the Armstrong decision essentially shut the door on PTSD claim in the future.
Allowing workers’ compensation claims for first responders with PTSD is a nationwide trend.
In the past several years legislators in multiple states, including Arizona, Texas, Vermont, Colorado, Minnesota, Kentucky , Florida, Oregon, Louisiana, Illinois, and Connecticut have introduced or passed legislation to allow workers’ compensation benefits to first responders suffering from PTSD. The legislation varies from state to state as to the amount of benefits provided for the condition.
Legislation in some states provides for a fixed number of counseling sessions and time off to attend them. Laws in other states provide for full indemnity and medical benefits. Other states provide for things such as specific requirements as to the types of events which lead to the PTSD; requirements for screenings to rule out pre-employment PTSD; or mandatory years of service before a first responder is able to file a claim for PTSD.
Is there another way?
In 2017 South Carolina passed a law that provided counseling for first responders suffering from PTSD, but made payment for those counseling sessions through third party non-profit organizations. The organizations are funded through the state budget. This solution meets the goal of providing first responders with the help that they deserve, without making “mental-mental” claims compensable under the workers’ compensation system.
Although the proposed legislation is currently limited to first responders with PTSD, what about a first responder who develops depression as the result of their job? What about a school teacher involved in a school shooting? What about that truck driver in the Armstrong case? If PTSD claims are allowed for first responders a strong argument can be made that these conditions should be covered as well.
Some feel that all psychological conditions arising out of work should be covered under the workers’ compensation system. Viewed from that perspective, the new legislation is a welcome first step. For Ohio employers however, opening the door to “mental-mental” claims could be the wrong choice.