[A] bill to expand workers compensation coverage for more mental health issues, including post-traumatic stress disorder for first responders, has sprung back to life and could be voted out of committee as early as Tuesday.
The House Commerce and Economic Development Committee took additional testimony on H.197 on Friday and tentatively scheduled a vote for Tuesday. The committee had previously planned to spend all of Friday discussing an independent contractor bill.
The renewed interest in the bill comes despite weeks of pushback from insurance companies and the Vermont League of Cities and Towns, who say that the bill would increase workers compensation premiums. They say the cost increase—which does not have a dollar figure—would affect local and state governments alike.
As passed by the House Health Care Committee, H.197 would require workers’ compensation to cover mental health disorders for all workers. The bill would also create a presumption in Vermont law that a first responder with PTSD obtained it on the job.
The major provision in the bill is designed to create mental health parity in workers compensation for all Vermont workers, who would still need to prove to a workers compensation insurer that they obtained the mental health disorder on the job.
The PTSD presumption included in the bill is designed to overturn a 2003 Vermont Supreme Court decision, Crosby v. City of Burlington, which prohibited firefighters from getting workers’ comp coverage for PTSD. The court said the firefighter did not need coverage for PTSD because the trauma he experienced was considered a normal part of what firefighters do.
“We can’t live without it, to be honest with you,” said Sonny Provetto, a social worker and trauma specialist who contracts to treat state workers and first responders in local police and fire departments.
He said post-traumatic stress disorder is prevalent among first responders, but current law will only allow them to get their trauma treatment and related time off covered if the triggering event is outside the scope of their normal work. Insurers often argue that each event is inside the scope of their normal duties, he said.
Provetto said he filed three workers compensation claims for social workers at the Department for Children and Families who were in the building on August 7, 2015 when their colleague Lara Sobel was shot dead in the office parking lot. Two of those claims were denied.
“Obviously it’s a work-related injury, and because somebody decides that that’s not extraordinary for social workers to do, they denied the claim, which boggles my mind,” Provetto said. He said all three of the workers “meet the criteria for post-traumatic stress.”
Provetto said he also treated 48 police officers involved in responding to the fiery crash on Interstate 89 in October that killed five teenagers. He said most of the officers would agree it was the worst crash they responded to in their life, but the precedent set in Crosby v. City of Burlington would make it hard for them to get covered under workers compensation.
Provetto has treated four suicidal police officers since July, and he’s trying to help two officers retire because they’re no longer able to work. He said it would be cheaper for police departments to give their officers eight sessions of trauma treatment and a month off immediately after a triggering event, than to train someone to replace them.
“I’ve been around this kind of first-responder trauma most of my adult life, and my view is you can’t treat first responders for trauma when they have to go to work tonight or go back to work tomorrow,” he said.
Pushback over the bill
Gov. Phil Scott has said he would like to see the bill narrowed so that it does not give all workers mental health coverage. His Department of Labor has been raising concerns over allowing first responders to have a presumption of obtaining PTSD on the job.
“I’d like to see it narrowed so it’s not too broad, and it sounds as though they’re narrowing those efforts in the House at this point in time, so we’ll work through the process,” Scott said Wednesday. “I’m not necessarily opposed to it.”
Laura Backus Hall, the lobbyist for the National Council on Compensation Insurance, testified March 16 that H.197 could increase litigation relating to whether PTSD was obtained on the job, and “any increased litigation could exert upward pressure on overall (workers compensation) system costs.”
Hall said H.197 would also apply to workers compensation claims that occurred prior to the law’s enactment, when employers paid premiums that were not associated with the risk of mental health injuries.
“As there is no mechanism to assess employers for such additional claim costs, the change, if enacted, could result in an unfunded liability for the (workers compensation) system,” she wrote.
That same day David Sichel, the deputy director of risk management services at the Vermont League of Cities and Towns, testified that H.197 would have a “high potential cost to municipalities, which will be reflected in property taxes,” and “potential high costs to the state.”
An amendment that surfaced Wednesday would not allow workers compensation coverage for a mental health disorder unrelated to work or allow coverage for mental health issues related to a disciplinary action, demotion, or related action as long as the employer makes it “in good faith.”
The amendment also says the mental condition will be considered compensable if the event causing it is “extraordinary and unusual in comparison to pressures and tensions experienced by the average employee across all occupations”—a much broader definition than the Crosby v. City of Burlington decision.
Sichel said the bill does not require both a new definition to overturn Crosby v. City of Burlington and a presumption that the PTSD was obtained on the job. He stressed that the organization does not have a position in favor or against the bill, but it would increase workers’ compensation premiums.
Bill Duchac, the director of risk management for the state of Vermont, raised concerns about broadening that definition and asked if the people who wrote it had made a mistake.
“Because (the language creates) essentially a level playing field for everyone, it is more problematic,” Duchac said. “By leveling it out that completely and not respecting the fact that an employee at the state hospital is going to experience more traumatic events than the average clerk at the DMV.”
Rep. Anne Donahue, R-Northfield, a prominent advocate for mental health parity, sought common ground with the House Commerce Committee when she testified in favor of the bill again on Friday.
“I think that the very legitimate concerns of this committee are based very much on the historical, traditional understandings about mental conditions and their distinction from other health conditions,” Donahue said.
She assured them that the bill would not open up employers to being liable for the onset of the entire spectrum of mental health disorders, in the same way that employers are not liable for physical injuries that do not occur on the job.
As an example, she said it would be virtually impossible for an employer to be liable for multiple sclerosis because there is no medical evidence that someone could have obtained it on the job. She said there is also virtually no job description associated with the onset of schizophrenia.
Donahue pointed to the amendment introduced Wednesday that clarified that typical disciplinary action would not give somebody the right to file a workers compensation claim. “Well if I’m really upset because I just got a demotion, and I smash my fist into the wall, I don’t think that’s compensable,” she said.
“To me these are, ‘Well of courses,’” she said of the provisions in the amendment. “But maybe they’re the kind of thing that, because it’s new to many people, it needs to be stated explicitly just to make it clear.”
What first responders are experiencing
Provetto pointed to a patient of his who was a longtime police officer in a small Vermont town and has been trying to retire after developing PTSD over a 14-year career of seeing people dead or die in front of him.
The man eventually started self-medicating with alcohol, Provetto said, because he couldn’t stop thinking about the traumatic events. He eventually threatened suicide and ended up in the emergency room, but survived.
The main difference with the man’s case and other cases he treats, according to Provetto, is that the town did not give him the help he needed early on. The town gave the man a psychologist who, according to Provetto, was not qualified, and did not give him the appropriate treatment during those 14 years he was experiencing it.
“I’ve done this (same treatment) many many times with officers who are suicidal, and these officers are still working the road today,” Provetto said. “There’s no reason why this officer could not have gone back to work.”
Bill Elwell, a chaplain at the Vermont State Firefighters Association, said he spends 15 to 20 hours per week working with first responders, providing education and finding appropriate places to refer them to improve their mental health.
Elwell said first responders suffer from higher suicide rates than the general population, and are more likely to get divorced. Elwell said he and his first wife were able to track some of the problems in their marriage back to trauma he experienced in the line of duty.
“Everybody wants to brush that of and just keep moving, but that’s a reality,” Elwell said. “I can’t tell you how many firefighters I know of and I’ve been in contact with at some time who have entered into divorce.”
Peeker Heffernan, the chair of the Vermont Fire and Rescue Coalition, said experiences from traumatic events can build up over time, or a new experience can remind someone of a traumatic experience that happened years ago.
“I feel that if we can stop one person from committing suicide, then the money we have saved for what it’s going to cost to take care of the rest of our department is far outweighed by what it will cost to save that one person,” Heffernan said.
But Heffernan and Elwell both question whether the cost of workers compensation premiums would go up at all.
“The previous presumptive bills haven’t cost us more in insurance premiums the heart bill and the cancer bill,” Heffernan said.
Elwell agreed: “There was this presumption that this was going to be this incredible cost increase, and it hasn’t happened.”
