In a January 15, 2013 post on www.InsuranceJournal.com there is a cursory mention of proposed legislation in Connecticut that would require coverage for PTSD to help first responders. The need for such legislation, was suggested by the Newtown Board of Police Commissioners to help those suffering physical and emotional trauma "as a consequence of their heroic efforts" on the job. By implication, this suggests that the current law in Connecticut does not, for one reason or another already provide for necessary protection for psychiatric problems or disability occasioned by on the job exposures. Before rushing headlong into legislation to cover this or that condition, I wonder if any thought is given as to WHY current law does not cover it or the implications of the change.
Please do not misunderstand, I do not know what Connecticut law is and have no familiarity with it to offer any criticism of the current law or the wisdom of seeking to change it. My point is a larger one: workers' compensation is a blunt instrument and not one well-suited for tailor-made solutions while running from one high profile crisis to another. It seems that legislators are genetically predisposed towards the mindset that "there should be a law." Less thought is given though as to the implications or the expense when a few extra lines are added to the State Labor and Industrial Relations act.
What, might you ask, is the harm in providing protection when the need is so clearly demonstrated? Well, consider that psychiatric disability is so poorly understood that the legal system is ill equipped to handle it. If two medical experts can look at the same MRI and come to two different conclusions, can we hope for certainty or objectivity when there is no picture, no diagnostic test that all can see to demonstrate that this person has it and that one doesn't? I am in no way suggesting that PTSD is not real, that depression is not disabling or that on-the-job exposures might lead to them. I only suggest that they are so poorly understood that a little legislative humility might be in order and that maybe, just maybe, the workers' compensation system is not the best forum or the only forum in which these policy judgments can be worked out.
As a statutory system, workers' compensation is designed to be applied by the numbers, by the book. Each State Constitution has as its foundational principle that all of its citizens must be given equal protection under the law. Can we truly say that is happening when a police officer or EMT is given treatment for PTSD after this horrific event in Newtown, Connecticutt but an officer who responds to a domestic abuse call or child abuse investigation is not? The statute in question here will undoubtedly include both going forward and probably for the good. However, in the rush to get this bill passed, is the larger tapestry of the workers' compensation system considered? Is any consideration given as to why the system did not include this in the past? There might be some wisdom in the existing system that gets lost when a high profile event drives our emotions out in front of reason. I do not mean to suggest that this is the case with the bill in question but I would hope that legislators are mindful of the concept.
Many of us remember the horrible days of 9/11/2001 and were all caught up in the emotional rollercoaster that started that morning. The outpouring of support both public and private was the least that those of us not directly involved in rescue, recovery and later salvage operations could do. Each of the workers involved in those events will carry the scars and the honor of having been there and having performed so selflessly in circumstances which most of us can scarcely imagine. Like them, the first responders in Newtown, have the thanks of a grateful nation for what they had to endure. The question remains though, is the workers' compensation system the only forum or the best forum to express that gratitude? Is a police offer responding to a single shooting of an adult any less traumatized by the event? If PTSD was not considered an appropriate stand-alone diagnosis and the basis of a compensable workers' compensation claim in the past, is it just the agony of seeing the slaughter of innocents that compels the change? Remember, the legislative change will apply to all going forward and we need to understand that once this pandora's box is opened cannot thereafter be closed to others deserving or otherwise. How long will it take before this PTSD is applied to a termination for cause or to an unpleasant interaction between co-employees in which the business played no part?
In 1996 floodwaters wreaked havoc in Albany, Georgia. As sometimes happens in low lying and flood prone areas, caskets from a local cemetary worked their way up and into the floodwaters. An employee of the city was given the unenviable task of retrieving the caskets and the bodies from the waters. The effort left this poor man scarred. His workers' compensation claim was, however, denied since he suffered no physical injury and instead soley psychic trauma. Georgia's statutes do not provide for purely psychic trauma claims but do allow for psychiatric treatment when a physical injury is involved. The Georgia Supreme Court declined to create a pure psychic trauma category even in this example when problems would be understandable, opting instead to leave that to the legislature. Was the Court harsh? Was the Workers' Compensation system or the Employer and its Insurer uncaring simply because the workers compensation system was not the proper forum? What was lacking from the Supreme Court's opinion was the rest of the story. As often happens, the full picture provides not only context but explanation and in some cases justification. The Trial Judge in this case explained that psychiatric treatment was offered to this worker but as part of the Employer's Employee Assistance Program, outside of the Workers' Compensation system. Was the employer less compassionate by providing that treatment outside of a system designed more for physical injuries and their treatment? Sometimes, there is no appropriate remedy. Sometimes the remedy lies elsewhere. Workers' Compensation should not be the repository for every potential encounter, every potential injury. It is still a statutory system that, if held to the language of the statute can be used to effecuate the purposes of the act but only if the respective legislatures act with deliberation, after due consideration of the practical consequences of their actions.
"Skedsvold & White
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