Animal Farm Logic: “All [workers] are equal, but some [workers] are more equal than others.”
House Bill 40, which would provide workers’ compensation benefits for post-traumatic stress disorders (PTSD), but only for certain specified first responders, was introduced into the Kentucky legislature on January 8, 2019. If passed into law, the bill would mark a significant change in the state’s existing workers’ compensation coverage. Currently, the Bluegrass State provides no benefits for work-related mental or psychological injuries unless they are accompanied by a physical injury (see Ky. Rev. Stat. § 342.0011(a); Larson’s Workers’ Compensation Law, § 56.06). If passed, Kentucky would join Florida and Washington (see RCW 51.08.142) in singling out one type of worker for favorable treatment, all the while ignoring PTSD conditions within the general workplace population.
Kentucky’s Existing Definition of “Injury”
It should be noted that Kentucky is within a minority of jurisdictions that exclude recovery for so-called “mental-mental” injuries (see Larson §§ 56.04, 56.06). Its current definition of “injury” provides in relevant part:
“Injury” means any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings. “Injury” … shall not include a psychological, psychiatric, or stress-related change in the human organism, unless it is a direct result of a physical injury (Ky. Rev. Stat. 342.0011, emphasis added).
House Bill 40 would amend the definition of “injury’ so as to include PTSD for first responders but, as indicated above, not for any other type of employee.
Stress Must be “Extraordinary and Unusual”
At first blush, the proposed law’s grant of benefits might seem narrow, in that the work-related event or cumulative work-related stress that produces the first responder’s PTSD must be “extraordinary and unusual.” The obvious question: extraordinary and unusual for the typical first responder or extraordinary and unusual for the typical worker across Kentucky? The answer: the latter. The proposed law specifically indicates the the extraordinary and unusual comparison relates to “pressures and tensions experienced by the average employee across all occupations” (H.B. 40, emphasis added). Considering the duties of first responders, as compared with workers in other occupations, the “extraordinary and unusual” hurdle should usually be easy to overcome.
Four Types of First Responders Covered by Proposed Law
While commonly used in a host of legal settings, “first responder” is not a statutory term, of course. Accordingly, the proposed statute defines four sorts of workers who will qualify for special PTSD treatment in Kentucky if the law is enacted. Qualifying workers include police officers, firefighters, emergency medical services personnel (as each of those categories of workers is defined in Ky. Rev. Stat. § 61.315), as well as other specifically-defined “front-line staff” (as defined in Ky. Rev. Stat. § 194A.065).
Bona Fide Personnel Decisions
Following a trend set by states such as New York, the proposed law includes an exception for stress related to good faith personnel actions on the part of the employer. PTSD that occurs as a result of a firing or demotion, for example, would continue to be excluded from coverage.
Under the proposed law, if a specified first responder is diagnosed with PTSD by a qualified mental health professional within three years of the last active date of employment (as a first responder), there is a rebuttable presumption that the PTSD is an injury covered by the law and the employer with whom the employee “was last injuriously exposed” is exclusively liable for benefits. The presumption may be overcome by a showing (by the preponderance of the evidence) that the PTSD was caused by non service-connected risk factors or non service-connected exposure.
Commentary: Picking Winners and Losers
As I pointed out last year in my discussion of Florida’s new “PTSD for first responders” law, lawmakers have made a habit of favoring one class of “victims” over others. Florida legislators fell all over themselves in extending PTSD coverage to first responders in the wake of the February 14, 2018 Parkland School shooting. The Florida law passed unanimously by both state houses within a few weeks of the tragedy.
I was left wondering, “What does Florida have against teachers and bartenders (recall the Pulse nightclub tragedy in June 2016, when a gunman, espousing allegiance to ISIS, killed 49 and wounded at least 53). First responders are provided with special training in handling tense moments and disturbing trauma; teachers, bartenders, and restaurant wait staff are not. Nevertheless, Florida, which, like Kentucky, does not allow recovery for mental-mental injuries, determined that it would soothe the psychological wounds of first responder professionals, but not so for anyone else. The Kentucky proposed legislation would do the same. The ink wasn’t dry on the Florida legislation before a similar bill was signed into law in the state of Washington.
Before you jump at me as being too hard on first responders, you need to know that I support cops and EMT personnel like few others I know. Years ago, I lost a dear friend (a local cop) to a suicide brought about—at least in part—by the stresses he faced in being assigned to a particularly rough part of town. His widow and daughter received no special benefits. To use a double negative, my point isn’t that first responders don’t deserve PTSD benefits in some instances. Rather, it’s that a state such as Florida, Washington, or Kentucky shouldn’t favor one class of employees over another. All too often, state legislators resort to a form of Animal Farm logic: “All [workers] are equal, but some [workers] are more equal than others.”
Is this sort of legislative action—choosing winners and losers—constitutional? We’ll see. I am not aware of any constitutional challenge that has been launched in either Florida or Washington. If you have heard to the contrary, please email me.