WSIA

Summary: Washington and Florida legislatures both passed PTSD bills for first responders and both states’ governors are considering whether to sign them. Both have interesting similarities and differences. Perhaps not surprisingly, Washington’s version goes much, much further.

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Washington State and Florida sit at opposite ends of the map. Washington is a “blue” state, with Democratic control of our Legislature and a Democratic Governor, while Florida is a “red” state, with Republican majorities in both chambers of its Legislature, and a Republican Governor.

We have to wear down-filled parkas to our beaches most of the year; Floridians frolic in the sun. We must keep an eye out for earthquakes, tsunamis, and volcanoes; they have hurricanes.

But what the two states have in common at the moment is both Governors considering bills passed recently by their respective legislatures to expand occupational disease coverage to post-traumatic stress disorder for first responders.

Although WSIA has called for a veto of Washington’s bill, both Governor Jay Inslee and Florida’s Governor Rick Scott are expected to sign the bills into law.

It’s interesting to see how the same legislative issue can take a different path at the same time in two different states.

Washington's Approach

The PTSD occupational disease coverage and presumption for first responders in Washington started life last session as House Bill 1655, which made a specific exception to Washington’s general rule of no occupational disease coverage for stress-based conditions for first responders, and then went on the presume that PTSD in particular is an occupational disease for firefighters and law enforcement officers.

To repeat: the bill would have allowed occupational disease coverage for all stress-based conditions for first responders, and presumed PTSD is an occupational disease. (Recall that stress-based mental conditions can already be covered in Washington as part of an occupational injury – as opposed to disease -- claim).

As it passed the House of Representatives last year, the presumption of PTSD was stripped out so that all that remained was blanket coverage for all stress-based mental conditions for first responders. This SubstituteHouse Bill 1655 did not receive a vote in last year’s Republican-controlled Senate.

This year, the same SHB 1655 quickly passed from the House to the Senate again, but was not the vehicle for moving the issue. Instead, SenateBill 6214 was newly introduced.

As introduced, SB 6214 narrowed the broad occupational disease coverage provision of SHB 1655 to just PTSD, and then made it a presumption so long as the first responder had received a pre-employment mental health screening that ruled out PTSD at the time of hire.

After some lobbying efforts pro and con and consideration by the Senate, SB 6214 was further amended before it passed the Senate in the form that eventually passed the House and now sits on the Governor’s desk.

Substitute Senate Bill 6214:

• Defines PTSD as having to meet the diagnostic criteria of the fifth or later edition of the diagnostic and statistics manual of mental disorders;
  
• Carves out PTSD for first responders from the general prohibition on occupational disease coverage for stress-based mental conditions;
  
• Limits the coverage carve-out to those first responders who first, as a condition of employment, submitted to a psychological screening examination so long as the employer provides it;
  
• Excludes from coverage claims directly arising from disciplinary actions, work evaluations, job transfers, layoffs, demotions, terminations, or similar actions if taken in good faith by the employer;
  
• Presumes that PTSD is an occupational disease for first responders;
  
• Limits the presumption to those law enforcement officers and firefighters in service at least ten years.
  

Despite these limitations, Washington’s Department of Labor & Industries estimated a range of claims costs on incurred but not reported claims ranging from $42 to $115 million, and between $2.6 and $7 million per year on new exposures going forward, and the state actuary estimated a roughly $35 million increase in state pension costs for law enforcement officers due to new claim in their pension system for line-of-duty disability on top of workers’ compensation.

Florida's Approach

Florida’s PTSD bill also took a winding road to the Governor’s desk, a road recounted in this blog post by Judge David Langham, Florida Deputy Chief Judge of Compensation Claims, and highlighted a couple times here and here by Bob Wilson, this year’s WSIA Annual Conference keynoter.

As Bob and Judge Langham point out, Florida’s bill as passed the Legislature, CS/CS/SB 376:

• Makes PTSD a compensable occupational disease for first responders;
  
• Provided the PTSD arises from the first responder’s course of employment;
  
• Provided the first responder is examined and diagnosed with PTSD by a licensed psychiatrist authorized to treat injured workers;
  
• Provided the PTSD arose due to one of eleven specifically enumerated traumatic events, such as seeing a deceased minor or the death or deadly injury of a minor, or witnessing events surrounding deaths involving “grievous bodily harm of a nature that shocks the conscience,” and so on;
  
• And provided the PTSD is proven by clear and convincing medical evidence.
  

The bill also provides that employers of first responders must provide educational training on mental health awareness, prevention, mitigation, and treatment.

Some Observations

Both states’ PTSD bills crack open the workers’ compensation system for stress-based occupational diseases for first responders, and both states require the PTSD arise from the course of employment (Florida’s specifically; Washington’s by implication).

Similarities tend to end there.

Florida’s bill requires an examination and diagnosis by a licensed psychiatrist. By implication, any attending provider in Washington could provide the diagnosis.

Florida’s bill employs a heightened standard of proof in that the first responder must demonstrate by clear and convincing medical evidence that he or she suffers from PTSD in the line of duty. Washington, critically, makes PTSD a presumed occupational disease requiring the employer to prove the condition is not work related.

Florida’s bill specifically lists the line of duty circumstances that may give rise to a contended PTSD occupational disease. Washington attempts something similar in the reverse, excluding an illustrative list of potentially stressful HR-related actions from coverage.

Florida’s coverage does not appear to require pre-employment mental health screening as a predicate of coverage, whereas Washington’s bill would require it so long as the employing agency provides it.

Florida’s coverage also does not have a ten-year in-service requirement for coverage, but then again, Washington’s service requirement limits its presumption, not its coverage.

The more conservative approach in Florida’s legislation doesn’t necessarily arise from the generally more conservative politics and partisan legislative control of the state. It probably arises from a more conservative (and market competitive) workers’ compensation system in general.

Indeed, though Washington’s House and Senate are split almost evenly between Democrats and Republicans with Democrats controlling both, when SSB 6214 made it to the floor of both chambers, it passed with only 7 “no” votes out of 148 combined legislators.

Clearly, voting for enhanced benefits, including special benefits, for first responders, is a bi-partisan endeavor, and it takes great political courage for members of either party to voice concerns and objections in the face of an understandably popular and appreciated, not to mention politically well-organized, group of workers.