Tag: workers’ compensation

PTSD Compensation for First Responders without Associated Physical Injury Revisited by Ohio Legislature in New House Bill

With the recent proliferation of mass shootings and other deadly incidents, several states have taken on the issue of allowing mental and/or emotional impairments caused by post-traumatic stress disorder (PTSD) to be a compensable workers’ compensation condition for first responders without the requirement of a physical injury.

In June 2019, House Bill 80, the budget bill for the Ohio Bureau of Workers’ Compensation, included such a proposal. After the bill passed the House, the Senate stripped the policy provisions on the mental-only diagnosis issue out of the proposed budget. Senate leaders indicated while there may be a reason for a special circumstance, it should be studied and debated separately from the workers’ compensation budget. In July 2019, leadership vowed to consider the legislation later in the year.

True to their word, the issue was revived in September 2019 by Representative Thomas Patton. House Bill 308 reintroduced the issue of PTSD coverage for first responders exposed to traumatic events in the course and scope of their employment. Two hearings on the bill have already occurred, most recently on Oct. 22, 2019. Proponent testimony was offered by several organizations and individuals. The statements reiterated concerns first responders are not able to pursue avenues for compensation under the law set forth by the Supreme Court of Ohio in Armstrong v. John R. Jurgensen Co. Interestingly, one of the organizations offering proponent testimony was the Ohio State Medical Association.

The business community remains opposed to any legislation that would allow for a “mental-mental” avenue for claimants. Rob Brundrett, director of public policy for the Ohio Manufacturers Association, provided testimony on House Bill 80 earlier this summer. Beyond merely the increased cost to employers, if a mental-only diagnosis were allowed, Mr. Brundrett noted the potential expansion of workers’ compensation beyond first responders could be required.

“If we erode the physical-injury requirement for peace offers, firefighters, and emergency medical workers, it may be difficult to justify not doing the same for other professionals who seek equal treatment,” Mr. Brundrett said in his testimony.

How such a proposal would be funded is also a concern of employers. Mr. Brundrett, who is closely following House Bill 308, has indicated that several discussions in the Senate have occurred in recent weeks on a potential bill that would provide PTSD coverage for first responders outside of the Bureau of Workers’ Compensation system. This proposal would, of course, be the preference of the business community.

While passage of this issue in the past has been unsuccessful, the August 2019 mass shooting in Dayton and its impact on first responders may result in this bill moving through the legislature. Dinsmore’s workers’ compensation group will continue to monitor this bill, as its passage would have a profound impact on employers.

If you wish to see the proponent testimony and follow the bill, you can obtain more information here.

© 2019 Dinsmore & Shohl LLP. All rights reserved.

For more on mental health, see the National Law Review Health Law & Managed Care page.

How Should IME (Independent Medical Examination) Doctors Apportion for Pre-Existing Impairment Using the AMA Guides and Rule 20 Guidelines?

Steptoe Johnson PLLC Law Firm

In West Virginia, Workers’ Compensation statutes provide that an employee who has a definitely ascertainable impairment resulting from an occupational or non-occupational injury, disease, or any other cause, whether or not disabling, and the employee thereafter receives an injury in the course of and resulting from his employment, the prior injury and the effect of the prior injury and aggravation shall not be taken into consideration in fixing the amount of compensation or impairment allowed by reason of the subsequent injury.  The statute provides that compensation, i.e., a permanent partial disability impairment rating, shall be awarded only in the amount that would have been allowable had the employee not had the pre-existing impairment.

No provision in this particular code section requires that the degree of pre-existing impairment be definitely ascertained or rated prior to the injury received in the course of and resulting from the employment or that the benefits must have been specifically granted or paid for the pre-existing impairment.  Additionally, the degree of pre-existing impairment may be established at any time by competent medical evidence.  It is not clear in the rules or statutes whether a reduction of an award for a pre-existing degenerative impairment should be calculated after the application of the tables in Rule 20 for determining impairment in regard to the lumbar, thoracic, or cervical spine or before the application of these tables.

In West Virginia, with regard to permanent partial disability evaluations and awards, such assessments shall be determined based upon the range of motion model contained in the AMA Guides, 4th Edition.  Once an impairment level has been determined by range of motion assessment in regard to a claimant’s spine injury, that level will be compared with the ranges set forth in the corresponding tables for permanent impairment as found in Rule 20, W. Va. C.S.R. § 85-20 et seq.  Permanent partial disabilities in excess of the range provided in the appropriate category as identified by the rating physician are reduced to within the ranges set forth in these tables found in Rule 20.  A single injury or cumulative injuries that lead to permanent impairment to the lumbar, thoracic, or cervical spine area of one’s person shall cause an injured worker to be eligible to receive a permanent partial disability award within the ranges identified in the tables found in Rule 20.

The rating physician must identify the appropriate impairment category and then assign impairment within the appropriate range designated for that category.  Rule 20 provides that all evaluations, examinations, reports, and opinions with regard to the degree of permanent whole body medical impairment which an injured worker has suffered shall be conducted and imposed in accordance with the AMA Guides, 4th Edition.  Rule 20 does not specifically address allocation of physical impairment at any time but does dictate that degenerative conditions are not compensable.  Also, Rule 20 allows for an evaluating physician to deviate from the rule with sufficient explanation for the deviation.

In a memorandum decision issued by the West Virginia Supreme Court of Appeals on June 11, 2014, the Supreme Court reversed and remanded a decision of the Office of Judges and Board of Review based on an employer’s appeal and found that the Office of Judges inappropriately concluded that the reviewing doctor did not correctly apportion for the claimant’s pre-existing condition when she did so after applying the table for impairment found in Rule 20.  The Supreme Court specifically noted that the physician correctly and appropriately apportioned for a pre-existing impairment after applying the tables found in Rule 20.  Even though this is a memorandum decision that does not have any specific syllabus points, it certainly is the only decision we have from the high court which shows that apportionment for a pre-existing condition should be made after applying the tables of impairment for the lumbar, thoracic, or cervical spine found in Rule 20.

ARTICLE BY

Alyssa A Sloan
OF
Steptoe & Johnson PLLC