Our 2020 Workers' Compensation Audit will be available online through February 22. +
By Sam Light, CIRSA General Counsel
Police, fire, and 911 employee are often the first persons engaged in a crisis and as a result, they can see and hear tough and psychologically traumatic events unfold. Municipal employers should be aware that with the recent passage of Colorado Senate Bill 20-026, there is no longer a difference between seeing and hearing such events for purposes of claiming potential workers’ compensation benefits for a diagnosis of post-traumatic stress disorder (PTSD).
The Colorado Workers’ Compensation Act (“Act”) has various limits and restrictions on claims for mental impairment, set out in C.R.S. 8-41-301. For example, the claim must be supported by the testimony of a licensed psychiatrist or psychologist and is not compensable if it results from an employer’s good faith job-related actions, such as a disciplinary action or termination. Further, the mental impairment must have arisen primarily from the claimant’s occupation and place of employment to be compensable and cannot be based upon facts and circumstances common to all fields of employment.
Until 2018, the Act also provided the mental impairment must consist of a “psychologically traumatic event” that is “generally outside of a worker’s usual experience.” This language raised the question of whether and under what circumstances a first responder could be eligible for workers’ compensation benefits for a PTSD diagnosis linked to one or more traumatic events occurring while on-duty, such as responding to calls involving death, serious injury or violent acts.
In 2018, the Colorado Legislature amended the Act to address this specific question, at least in part. At that time, the Legislature added language to the Act stating a “psychologically traumatic event” could also include an event within the worker’s usual experience, but only if the worker were diagnosed with PTSD and the event fit within one of three categories. Specifically, the events were limited to those where (a) the worker is subject to an attempted use of deadly force; (b) the worker “visually witnesses” a death or its immediate aftermath; or (c) the worker “repeatedly visually witnesses” incidents of the serious bodily injury or their immediate aftermath.
The 2018 amendments clarified, for example, that a peace officer diagnosed with PTSD could seek workers’ compensation benefits in these limited circumstances where the diagnosis is related to work, subject to all other requirements of the Act. However, the “visually witness” requirement precluded 911 dispatchers from seeking benefits under these provisions, though dispatchers might be on radio or phone calls while traumatic events are unfolding, with similar mental health effects.
With the passage of Senate Bill 20-026, the Legislature has expanded potential coverage under these provisions to workers who “visually or audibly, or both visually and audibly,” witness a death or repeated incidents of serious bodily injury. With this change, the Act now allows 911 dispatchers to pursue workers compensation benefits for PTSD that occurs on the job, again subject to all other requirements of the Act. Senate Bill 20-026 takes effect September 14, 2020.
Mental impairment claims under workers’ compensation can be difficult. Compensability is not always clear and such claims are hard for employees, employers, physicians, and insurers to navigate. If you are a member of CIRSA’s workers’ compensation pool and have any questions about these amendments to the Act, or receive a PTSD claim for workers compensation benefits, please contact your CIRSA workers compensation claims representative or Marla Myers, WC Claims Supervisor, at 720-605-6081 for assistance.
Note: This article is intended for general information purposes only and readers should consult with their entity’s own counsel for legal advice on specific issues. Determinations of compensability of any workers’ compensation claim can only be made at the time of and with reference to the facts and circumstances of the specific claim.
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