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Should Workers' Comp Expand to Include Emotional Trauma?
The Connecticut Law Tribune
Once upon a time in Connecticut, if someone suffered an emotional trauma at work that affected their ability to earn a living, he or she could file a claim for workers' compensation benefits.
Then in 1993, lobbyists for the business community argued that mental and emotional injury claims were pushing up the price of workers' comp insurance premiums and boosting overall costs for municipalities and businesses. As a result, state lawmakers voted to limit workers' comp benefits.
Now those benefits are available only to workers who sustain physical injuries. If those physical injuries are accompanied by emotional injuries, additional benefits are available. But, with a very few exceptions, there are no workers' comp benefits available to those who sustain emotional trauma only.
However, just as it has altered the debate over gun control, the Newtown school massacre has prompted discussions about changing workers' comp law. About 20 police officers, firefighters and teachers who were exposed to the shooting episode and its aftermath have been unable to return to work because of post-traumatic stress disorder and other emotional injuries.
John A. Mastropietro, chairman of the Connecticut Workers' Compensation Commission, has acknowledged the shootings are stirring discussion about providing lost wages and other benefits for the emergency responders and others directly impacted by the carnage. What stands in the way, he said in a press statement, is current Connecticut law.
"Most, if not everyone agrees that the circumstances which existed in the Newtown tragedy do not meet the requirements of the statute for even psychological counseling," he said.
A group of union leaders and workers' compensation attorneys wants to change that. A request for an amendment to the workers' comp law has been raised for discussion by the legislature's Labor Committee. Sen. Cathy Osten, D-Sprague, is the co-chair of the Labor Committee and a U.S. Army veteran. She said it's clear to her that workers and not just those from Newtown need to be compensated for emotional harm, just like any other injury.
"We've certainly come a long way in recognizing the value of taking care of armed forces veterans with post-traumatic stress disorder, but right now our state laws limit what is covered by workers' comp and it's something we need to address," Osten said. "Workers' compensation isn't only about physical injuries, it's about the psychological and emotional trauma that occurs around events such as Newtown and in the daily street shootings we hear about in Connecticut."
Osten and other committee members are continuing to discuss the concept of the proposed law. Although few details have been released, it appears the bill would primarily apply to those who have suffered emotional trauma after having been exposed to death or maiming while on the job.
There has already been clear opposition voiced by those who would have to pay the new benefits, including the Connecticut Conference of Municipalities, which provides workers' comp insurance for Newtown school employees.
Kevin Maloney, a CCM member and spokesman, said his organization is concerned that the proposal would lead to fraudulent claims by people who witnessed a workplace death but suffered no emotional harm.
"Although sympathetic to the intent, this proposed new unfunded state mandate would significantly impact municipal budgets and establish an alarming new precedent within the workers' compensation system," Maloney said. A revised law "would compound local budget woes and flip the entire compensation system upside down."
Maloney stressed the potential for abuse, especially if workers had never previously had emotional health issues. "Communities would see higher health insurance costs for their workers' compensation programs," he said.
The workers' comp law doesn't need to be changed, he continued, because most employees have access to short- and long-term disability coverage that provides them with benefits if they are unable to work. Referring to the Newtown situation, Maloney said: "Every public employee has a multitude of mental health benefits available to them already."
Also opposing workers' comp law changes is the Connecticut Business and Industry Association, which represents more than 7,000 companies and more than 700,000 employees.
Laura Cummings, a staff attorney and lobbyist for the organization, said opening the door to emotional and mental health claims would undo the important reforms made in the 1990s to cut costs to business owners. "There were sweeping reforms done to workers' compensation statutes in the early 1990s, and one of the reforms ended mental only claims due to significant misuse," Cummings said.
The 1993 changes to the law saved businesses and public employers a total of $750 million between 1993 and 2011. Businesses too, Cummings said, enjoyed a 7 percent reduction in workers' comp insurance rates.
But also during the same period, there has been increasing pressure to allow workers to seek compensation for emotional trauma.
Workplace shootings, including the 1998 deaths at the lottery headquarters in Newington, and the 2010 slayings of eight people at the Hartford Distributors warehouse in Manchester, have all resulted in large workers' compensation payouts for the families of those who were killed and injured.
The compensation paid to the victims' families amounted to 75 percent of each killed workers' average income, after reductions for Social Security and income taxes. A handful of workers who witnessed those shootings, but were not physically injured, were not able to pursue compensation for lost wages or mental health treatment.
"It is important that people involved in these traumatic events receive treatment," Cummings said. "However, the business community is very concerned that extending workers' compensation benefits as proposed could once again lead to misuse and unintended consequences may result."
Joel Faxon is the police commissioner in Newtown, as well as a partner in the New Haven personal injury law firm Stratton Faxon, said the lives of people hurt by workplace violence are worth the expense. He disagrees that emotional injury claims would "open up the floodgates" or lead to abuse, because the claims would have to survive on their legal merits, like any other.
"You still have to prove that the injury was caused by work," Faxon said. "Even if you had a lot of people filing these claims, they would still need to meet the legal threshold of proving work caused the injury."
Two weeks ago, his police board voted unanimously in favor of asking the legislature to expand the workers' comp law to include workers who "might have sustained physical or emotional injury" as a result of the Sandy Hook Elementary School shooting.
The law change, Faxon said, would extend such emotional trauma benefits to all workers in comparable situations. "There is, in many peoples' opinion, a void in workers' compensation laws relative to emotional injury," he said. "Given that fact, and what the members of this [police] department have done in terms of their response, we feel it's important that the law is changed to address the problems that these first responders and others encounter, what they have encountered, and will encounter going forward."
Al Desrosiers, a workers' comp attorney who lives in Newtown and has an office in Stratford, was handling mental injury benefits cases for more than a decade before the law changed. Those sorts of cases, he said, "were pretty rare."
A mental injury claim required the same burden of proof as a physical injury claim; attorneys had to show the injury occured out of and in the course of the employment, Desrosiers said. At the same time, the cases really revolved around the testimony of the medical professionals who examined the workers. It was a battle between the doctors, Desrosiers said. "You still have to prove there was an injury."
After the law changed, he said, he got occasional calls from people who claimed they were emotionally harmed at work. "I've had people come in to me and say they're all stressed out and seeking therapy, but there isn't a physical component, an accident or an event that caused physical injury to go along with it," Desrosiers said. "So we don't pursue those claims."
He would like to see the law changed to allow workers the ability to pursue them.
"I'd like to see the law go back to the way it was before 1993," Desrosiers said. "Especially for these poor people of Newtown, the emergency responders and the teachers, who have been through so much."
Other states are following the Connecticut debate.
In Georgia, some workers' comp lawyers said they are curious to see whether a law change in Connecticut might start the ball rolling for change in their state. In Georgia, current state law allows workers' comp insurance carriers to provide an optional mental health counseling benefit, but the carrier can also deny mental injury claims.
As in Connecticut, Georgia does not allow for mental injury benefits if there is no physical injury connected to the event that caused it. "We need a revision of the law to allow for care for these" first responders, said Andrew Neuwelt, an attorney with Franks, Koenig and Neuwelt in Atlanta. "Connecticut's potential expansion of the law reflects a nationwide shift toward recognizing post-traumatic stress as a compensable injury."
In Wisconsin, attorneys said there were concerns in recent years that too many emotional injury claims were being made in workers' compensation cases. As a result, the Wisconsin Supreme Court recently set a new "extraordinary stress" standard for compensatory damages, meaning a mental injury is only a payable claim is it resulted from a situation that was from a far greater dimension that day-to-day stress.
Carolyn Kelly, an attorney at Suisman Shapiro in New London whose practice involves workers' compensation, said mental injuries are an important aspect of worker' compensation "and should not be overlooked."
Kelly explained that the law in Connecticut has gradually expanded workers' comp benefits over the years to allow for emotional trauma claims by police officers involved in deadly force situations, and more recently, by firefighters who see colleagues get killed.
"It makes sense that teachers and other workers also get this benefit," she said. "I've had clients who come in and are in breakdown situations at work because of pressure of a job. And there's no doubt the job itself has caused some type of emotional reaction. Employers should be responsible for the conditions they create or contribute to."
This article originally appeared in the Connecticut Law Tribune.