Workers Comp Matters
Robert E. Wisniewski is a Certified Specialist in Workers’ Compensation law with the Arizona State Bar. He...
Judson L. Pierce is a graduate of Vassar College and Suffolk University Law School where he received...
Alan S. Pierce has served as chairperson of the American Bar Association Worker’s Compensation Section and the...
We depend on our first responders – firefighters, cops, emergency room workers – every day. They protect us from harm. But what happens when they need our help? Our guest Robert Wisniewski is a Certified Specialist in Workers’ Compensation law with the Arizona State Bar and a military veteran.
Post-traumatic Stress Disorder is a real thing, PTSD. How does this fit into state Workers’ Comp protections? You can’t see these mental scars. And every state is different. Some states don’t offer benefits for these issues.
The military and the Veterans Administration understand the damage we can’t see, but it’s unclear where first responders fit at a state level Remember, every state has its own rules. This is a tough one, but we’re talking about our hometown heroes. There can be a stigma, and sometimes issues don’t get reported until it’s too late, or the chain of command drops the ball.
And unlike falling off a ladder or getting in a car wreck on the job, PTSD injuries may be the result of repeated incidents over a long term. It’s hard to say “when” the mental injury happened, how do you make that claim? Courts are struggling with this. Non-physical stressors may be limited to a single incident, not a working lifetime of stress.
We owe first responders support and care when they need it. This is a confusing and complicated issue. But this is important.
Special thanks to our sponsors MerusCase, Tech-Synergy, and PInow.
Workers Comp Matters, the podcast, dedicated to the laws, the landmark cases, and the people that make up the diverse world of workers’ compensation. Here are your hosts, Jud and Alan Pierce.
Alan Pierce: Hello again, Alan Pierce and Judson Pierce here on Workers Comp Matters in the Legal Talk Network where we bring you topics relating to injuries on the job and workers compensation in general. I want to thank you for tuning in and listening. We have an interesting, I believe, podcast today. We’re going to discuss post-traumatic stress disorder generally, but more specifically, the impact of this particular diagnosis or other mental health diagnoses on first responders. For that discussion, we have a returning guest, Attorney Bob Wisniewski of Arizona. Jud, why don’t you introduce our guest?
Judson Pierce: I’d be happy to. Thanks, Alan. Bob is member of the Arizona State Bar Workers Compensation. He’s a fellow of the College of Workers Compensation Lawyers. He’s one of the premier advocates and practitioners in Arizona, practicing workers comp for over 40 years, and his law firm is dedicated to providing justice for injured workers throughout Arizona. Bob is also very dedicated in other fields and serves his time on the board of directors for Kids Chance of Arizona which is an organization dedicated to providing scholarships for children of Arizona’s injured workers. Thank you, Bob, for joining us again today.
Robert Wisniewski: Thank you, Jud, and thank you, Alan. I’m happy to be here today to talk about first responders and the unique issues with representing first responders that often migrate into post-traumatic stress disorder claims.
Alan Pierce: Let’s get into that. Workers comp in general has not recognized mental health or psychiatric disability claims at the inception of the programs of workers comp. It sort of came along at maybe the latter quarter of the last century. Just sort of give us an idea of the particular issues simply surrounding any type of psychiatric stress disorder, especially one that doesn’t arise after a physical injury. Those were a little more common, but when there is a psychological stressor and a psychological result, could you perhaps lead us through a brief discussion of that?
Robert Wisniewski: Certainly. I’ve done some research and I’ve looked into every state’s mental health laws or workers comp laws that deal with post-traumatic stress disorder. It’s very surprising that some states do not offer any benefits at all for a mental injury that is simply mental itself, not arising out of in companionship with a physical injury. That’s amazing. I think we’re seeing now that maybe the workers compensation system is getting dragged into recognizing post-traumatic stress disorder probably because as a result of the fact that the military and the Veterans Administration is increasing its treatment of Veterans that are returning from the wars with post-traumatic stress disorder.
I think we’re seeing a little bit of a loosening up in favor of the injured first responder, but Alan is correct, it really is being dragged into the system very slowly over the years, they didn’t recognize as the military didn’t recognize post-traumatic stress earlier, it was called combat exhaustion or combat shock or what have you, but now it recognizes the diagnosis. It’s difficult to handle because each state has some different standards on post-traumatic stress disorder and quite honestly the expectations of the first responders differ than my expectations from my other clients that are not first responders and I can get into that a little bit.
Judson Pierce: Bob, can you give us an example or list of some first responders? Who are they? What are their jobs?
Robert Wisniewski: Sure. I think it’s important to define that. First responders are typically fire personnel, law enforcement personnel, city sheriffs, city police officers. It’s migrated over to first responders being emergency medical technicians that are running the ambulances. We see that now to go into people that are working in the hospitals as first responders in the emergency room and in critical care, things of that nature, corrections. All of those are essentially first responders.
They’re like any other clients that we have and they have certain qualities that are good and certain qualities that are bad. For example, a lot of times they don’t report an injury, they don’t report the mental or psychological injury because they really perhaps think, “Oh, the system will take care of me. I put my life on the line and the system will take care of me,” and they don’t make a report. That’s one problem.
Another problem is that they don’t choose to make the report or they report it to their sergeant and it doesn’t go any further up the line of command. In most states, particularly here in Arizona, the worker has an obligation to file his own claim. Often, we see a first responder saying, well, I told my sergeant and I’ll say, “Well, what happened?” “Well, nothing.” And I said, “You didn’t go back to your sergeant and you meet with him monthly,” and it’s been months and months and months and then they fall all into the statute of limitations that they may miss their claim. That’s a particular problem because they’re kind of military oriented that I told the chain of command and the chain of command will take care of me, and that’s not the case.
Alan Pierce: As you were describing these facts, scenarios, I think it’s a good idea to pivot to the fact that there can be two types of claims for post-traumatic stress. The first type could be as a result of a single extremely traumatic incident, 9/11 comes to mind. The school shootings come to mind, some of these other dramatic highly stressful events. On the other hand, there’s a whole category of cases that you could speak to where there isn’t one single event, but the nature of the job itself produces I guess what we call repetitive psychological stresses. Somebody is working in the correctional field, a CO and a very violent person, for example, dealing with days, weeks, months, years of inmate altercations, violence, deaths, et cetera. How do you distinguish between the single episode of stress and the job description that is basically a stressful job?
Robert Wisniewski: That’s a good distinction. Here in Arizona, we’ve had some action and activity in our Supreme Court over the last year or two regarding that exact topic in post-traumatic stress dealing with law enforcement. My Arizona Supreme Court has said, “You cannot make a gradual post-traumatic stress claim in the state of Arizona.” We often have officers that come to us and say, “My job is terrible. I’ve had 20 years of misery dealing with dead bodies and what have you and I want to file a claim.” We have to then say to them, “Look, we really have to go to the last and perhaps one specific event and that’s what we’re going to file the claim on that may be not necessarily the straw that breaks the camel’s back, but that may be the claim.”
He may not be able to use the other ones to say, “Well, this is the one that tipped me over,” because of our Supreme Court most recent decision in April of last year saying, “You can’t have a gradual workers compensation PTSD claim.” I think they’re worried about the flood gates opening of officers and firemen upon retirement saying, “I’ve had 20 years of seeing dead bodies or babies falling out of windows and fires, drownings, things of that nature.” At least in this state, we’re pretty well circumscribed to a specific event or one or two events at the same time, closing time.
Alan Pierce: Just glad you pointed out that that’s the state of the law in Arizona. As you mentioned, you look at other states, Massachusetts, for example, when our Supreme Judicial Court first allotted mental health claim as a result of a non-physical stressor, it was limited to a single identifiable stressful incident and then the next case came along, where there was basically a series of them leading to the last one, which put the guy, in this case a gentleman out of work, and our Supreme Judicial Court indicated it could be a single identifiable stressful incident or a series of identifiable stressful incidents. They did deal with their decision, we’re going back to the 1970s, Petes Gibbons(ph) case in Massachusetts, for example, pointing out the policy reasons that you indicated, yes, this could potentially open floodgates but they recognize that people can and do deal with extreme stresses in the workplace. Even though the diagnosis and the presentation of a mental health case is different than a physical injury, you can’t x-ray and you can’t give an MRI to it, that it is up to the fact-finder in each case to look at the facts.
When you were describing the categories of first responders, you, of course, identified first police and fire, need they be public employees or can they be first responders from the private sector as well such as a private hospital as opposed to a public hospital?
Robert Wisniewski: I think they would fall in the same category and thank you for including that. The problem with most of these, as I see, at least in the public sector, is that the officer, and let’s just focus on police, the officer does not want to report the claim because he’s afraid of the stigma. “We’re all supposed to be macho in our profession as a law-enforcement.”
If he’s depressed, he may feel that, well, if I tell somebody, I’m not going to get promoted, I’m going to be stigmatized by my fellow officers, they’re not going to want to be with me because they think I’m a risk, that they’ll treat me differently. There’s some studies to that effect in asking officers those questions why they didn’t file claims. They said they were worried about being passed over for promotion or that their supervisor would treat them differently and maybe that’s a problem sometimes because as I talked to officers, they say, “We don’t want to claim it.” My opinion in working with officers that are in critical situations with shootings and death and motor vehicle and things of that nature, chemical exposures where they’re seeing horrific injuries, almost every officer or any first responder that’s exposed to those kinds of situations is going to have post-traumatic stress disorder in my opinion.
Alan Pierce: By the way, before we get to Jud’s question, you mentioned a lot about police and fire in Arizona. Again, I caution our listeners and other jurisdictions such as Massachusetts, for example, police and fire personnel are exempt from workers comp. They’re not covered under our workers comp law, they come under a different statute, in injured on duty statute, which is paid separately. Are police and fire under your particular comp statute or do they have a parallel injured on duty statute?
Robert Wisniewski: Right now, they are under the Workers Compensation Act where the discussion amongst people in the industry is that because of the severity of these claims and the frequency of them and the volume of them, that it might be wise at some point in the future to take them out of workers compensation and perhaps something like Massachusetts offers a different type of compensation system.
We have a very unusual statute in Arizona, and this was just recently challenged by one of our appellate judges, who said, “I believe the statute is unconstitutional,” and our Supreme Court just went to great length saying it’s not and if you want to deal with it, you need to go to our legislature. It came out at Thanksgiving of 2022. Our statute says, “The event must be unusual. It must be extraordinary or extraordinary, maybe if that’s the way you wanted to break it out.” That’s difficult because our court of appeal said, “Well everything that a policeman does is unusual, unexpected or extraordinary.” If I cut my hand at work in the office, I can file a comp claim and if I get an infection from that, it’s covered because they’re tied together. I don’t need an unusual cut of my hand.
Our Supreme Court said, “No, our statutes included all of that.” And it was right, it was okay for our legislature to create the statute many years ago that said, “It’s an unusual, unexpected, or extraordinary event.” We have to focus on that event as a gate before the officer can go any further. Many times, we’re able to prove that there is PTSD, but we can’t prove that the event is unusual, unexpected or extraordinary, they’ll bring in experts and say, “Well, that’s usual police work. People get shot at every day.” That’s the predicament in our state and I would caution every listener to inquire about your own particular state by consulting a lawyer in that state.
Judson Pierce: Why don’t we take this moment to hear a word from our sponsors and we’ll be right back with Robert Wisniewski.
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Judson Pierce: And we’re back, we were talking with our special guest, Robert Wisniewski about first responders. I’d like to pivot into the conversation the concept of presumptions, Bob, and what are those generally and how do they apply to this area?
Robert Wisniewski: A presumption in the law essentially is that if you meet certain elements of the criteria, then you automatically move into whatever the subject is. There are lots of presumptions typically for firefighters at least in my state and maybe that’s because the fire has a greater political pull at the legislature. We have a cancer presumption, for example. If a fire officer has served so many years, makes an application before he’s a certain age and he’s got a diagnosis from an expert in the cancer field that he has a certain type of listed cancer that is presumed related to the workers compensation activities of that officer, that fire officer, as long as he meets each of the elements.
He just proves the elements and then the carriers or the self-insured employers will have to disprove the claim. It helps the worker. I can give you an interesting example in the state of Washington most recently, they have a presumption that if an officer worked 10 years and had the problems that we’re talking about, psychological problems emanating from his work, as long as he can prove that he had, perhaps a gradual over 10 years contrary what we can do here in Arizona, then he has presumed to have PTSD, but it’s rebuttable.
Then, that means that the other side can come in and say, “Well, yeah, you meet the criteria of 10 years of shootings and psychological injury and a mental health individual has diagnosed that, and therefore, you are presumed to have it, but maybe you had some very serious mental problems in your own life, death of family members, things of that nature.” They can try to rebut the presumption. The presumption is you kind of automatically win is the best way I can describe it. We do not have that presumption in Arizona with respect to a post-traumatic stress disorder. If you recall during COVID, the several years of COVID, many states had presumptions that you would get a COVID injury was covered in your state if you met the following elements, 1 2 3, 4 and 5. Then, the other side would have to prove that you incurred it somewhere else traveling to a foreign country, what have you. That’s kind of a little complicated, but lengthy explanation of presumption. We do not have a PTSD presumption either for fire or first responders in Arizona.
Alan Pierce: We actually covered the concept of presumptions on one of our COVID shows that is in our archives of Workers Comp Matters, but you sort of pointed out I guess what was described in that show as the difference between a conclusive presumption and a rebuttable presumption. A conclusive presumption is as you described it, you meet the criteria, you have the disease and it is covered. I know in Massachusetts, in our cancer presumptions, it is a conclusive presumption. If you have lung cancer and you’ve been a firefighter, it is covered under, not workers comp, but under their injured on duty. When you were talking about the cancer presumption in Arizona, is that a conclusive presumption? You said it’s rebuttable. You don’t have any presents for mental but —
Robert Wisniewski: It is. Certain kinds of cancer. Some other most recently enacted cancers are rebuttable.
Alan Pierce: Some circumstances, the self-insured employers can offer evidence medical expert that it’s not covered. Is the eligibility for post-traumatic stress disorder benefits only limited to the diagnosis of post-traumatic stress disorder? Let’s say as a result of the particular significant stress in the workplace and the person doesn’t develop PTSD but develops perhaps another DSM-5 diagnosis, whether it’s anxiety disorder with depression if that’s still a DSM. But something other than PTSD, can they be covered and paid?
Robert Wisniewski: They can be covered and that’s an interesting point because most of the time, you’ll see the initial diagnosis as perhaps an adjustment disorder, and then it may migrate into something more serious. We also, in Arizona, have a one-year statute of limitations in filing a workers compensation claim. As a result of some litigation that we were involved in some appellate work a few years ago, it is now one year at least as to post-traumatic stress and probably other mental injuries in the field of first responders, one year from the date of diagnosis, not from the date of event.
The officer may say, “Well, I had the shooting and it was maybe more than a year ago, but I didn’t start to decompose or didn’t know I was decomposing mentally, depression, what have you, I had minor anxiety and maybe adjustment to my job. Then, my family doctor said, ‘Well, I really think you need to see a mental health provider.’” And he did, and the mental health provider said, “You have post-traumatic stress disorder.” We filed the claim on him. It was more than one year after the event and we were successful. Unfortunately, the defense always tries to come out with, well, you might have been diagnosed by a doctor a year, and then we go from that one year forward, but oh, did you talk to other officers about PTSD? Did you talk to retirees? So you have to be careful in selecting case and talking to the injured worker that he himself doesn’t read up on PTSD and then self-diagnosis himself. I think that would cut away from he either knew or should have known that he had PTSD or mental disorder.
Alan Pierce: We’re going to take another short break and we’ll be back to finish our topic with Bob Wisniewski and PTSD among the first responders. We’ll be right back.
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Judson Pierce: And we’re back. Bob, what about the scenario where someone has a physical injury on the job and then following that or as a result of that physical injury, develops an emotional or a mental trauma, is that handled any differently than say the officer or first responder that suffers a psychological trauma to begin with?
Robert Wisniewski: That’s a good point. In fact, that is a distinction that our two recent court cases have made that — we call it a physical-mental. It’s a little easier to prove in my opinion, it almost then takes it out of the unusual, unexpected or extraordinary situation because they don’t have to prove that, although that will be something that the defense will always argue. The defense is no longer allowed to argue in Arizona that it was, we train them. We train officers to be in shootings and things of that nature.
Our Supreme Court said, “That’s a very foolhardy defense.” But if we can prove that there was a physical injury and then the gentleman or the gentlewoman develops emotional problems as a result of that, I see that no differently than a broken shoulder and in a physical injury regular workers comp case and then the person then start to develop psychological problems because of the pain. My opinion then is it takes it away from being unusual, unexpected or extraordinary as long as perhaps the original event is accepted as a physical claim.
Alan Pierce: You used some jargon that the workers comp attorneys are familiar with in describing these types of cases. We’ve talked initially about the so-called mental-mental cases. What that means is a mental or non-physical stimulus or stress such as a shooting, et cetera, and a non-physical response, a mental response. That’s a mental-mental claim. You also just, in the answer to the last question, talked about a physical-mental, where it’s a physical injury, then followed by the psychiatric or psychological problems. There’s also another that would be mental physical and you probably had some of those cases. Describe what a mental physical case would be, perhaps in the setting of a first responder.
Robert Wisniewski: I think one simple one would be to, there’s some anxiety over a shooting or chasing a suspect or something of that nature and then they develop gastritis or stomach problems and things like that where the physical injury comes after and maybe as a consequence of the mental anxiety and adjustment and those are perhaps a bit rare but they’re still out there.
Alan Pierce: The ones that we’ve had some experience with where there would be a sudden shock and this isn’t necessarily just limited to first responders, but we’ve had bank tellers held up and other types of extremely stressful mental issues and it provoked a heart attack, it provoked a stroke, it provoked a fainting spell with physical injuries as a result. In essence, we have to be aware as litigators in this area of the particular evidentiary and burdens of proof and presumptions that exist for mental-mental cases, physical-mental cases, and mental-physical cases. Any closing words you might have to say, Bob, about first responders? By the way, are they eligible for any type of retirement benefits based upon a disability? And if so, did those retirement benefits follow the same workers comp rules as far as compensability?
Robert Wisniewski: That’s an interesting split. In Arizona, we have a public safety retirement program, for example, an officer who has passed all the psychological test, physical test becomes an officer, then later cannot perform the essential functions of his patrol job or police job.
He then goes into our public safety retirement if he gets medical proof from an examining doctor that he can’t perform the job description. He gets a separate retirement. In workers comp, he would have to be the same as it would be in a normal non-PTSD claim. It’s whether or not the functions of what are the work functions and how do they affect the ability of the worker to earn a certain wage and they’re not really retirement benefits, they’re actually disability benefits because his psychological impairment prevents him from returning to his job and maybe doing comparable other jobs, administrative work, dispatching, how else would he be able to earn a living and they deduct that from his comp wage. It’s a little bit different than a straight retirement. But they’re all complex and complicated and very worrisome cases and they’re devastating to be officers and first responders is no doubt in my mind about that.
Judson Pierce: When you talk about the interplay between the retirement, Bob, and the receipt of workers comp benefits, you said that the retirement in Arizona takes the offset?
Robert Wisniewski: No, it does not take an offset. It does not take an offset. The offset is only in the workers comp if he earns this year $5,000 and he maxed that out because he made more as an officer, but he can only earn $2,000 in working at Walmart as a greeter. They use that as a deduction from the $5,000 and pay him 55% of the difference for the future as long as that split exists. There’s no offset between retirement and workers compensation on a permanent benefit basis.
Alan Pierce: I think among the takeaways from today’s show are that these are very complicated cases, more so than the broken leg of the torn rotator cuff, not that those can’t be complicated, that mental health cases are relatively new in the workers comp system and perhaps most importantly, to anybody listening to this show and any of our prior shows, the comments that are made both by Jud and myself as well as our guest really are as general as they can be, perhaps limited to the particular jurisdictions and in any event, consult a knowledgeable workers comp or retirement or other types of specialist because these are tricky cases and are very fact-dependent and they also follow the particular state of the law in your particular jurisdiction because Massachusetts, those things differently than Arizona and Washington and the other 47 states.
Bob, I want to thank you again for sharing your expertise with us and your audience. I always learn something when we speak to you, both on our podcast and when we get to meet as we do during the year. And to all of you who listen, thank you for subscribing and listening to our podcast and go out and make it a day that matters. Bye-bye.
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|Published:||January 24, 2023|
|Podcast:||Workers Comp Matters|
|Category:||News & Current Events , Workers Compensation|
Workers Comp Matters
Workers' Comp Matters encompasses all aspects of workers' compensation from cases and benefits to recovery.