Earlier this year, the Minnesota Legislature took a huge step, and passed legislation creating a workers’ compensation statutory presumption of PTSD for our state’s first responders. In other words, for certain workers in the state of Minnesota, including police officers, firefighters, corrections officers, and others defined as “first responders,” a diagnosis of post-traumatic stress disorder is to be presumed to be work-related. The goal of this bill, authorized by Representative Nick Zerwas (R), and which had almost unanimous support in the legislature, was to eliminate barriers to quick, effective medical care for our State’s first responders suffering from PTSD.
Meuser Law Office, P.A., has been on the front lines of workers’ compensation litigation surrounding PTSD since the legislature acknowledged PTSD as a compensable workers’ compensation injury effective October 1, 2013. While the law changes in 2013 made a big difference, from a practical standpoint, it really did not address the issue of getting our first responders better access to care for mental health issues. In fact, we estimate that roughly 80% of all PTSD claims, of which most involve police officers, firefighters, and corrections officers, are denied outright by the workers’ compensation insurers. The workers’ compensation system does not remotely function in a way that promotes early access to effective mental health care services for Minnesota’s first responders.
The hope was that Representative Zerwas’ presumption bill might change that. But, in order to get business interests on board, the bill also directs the Department of Labor and Industry (DLI) to create “treatment parameters,” which are a set of administrative rules governing what kind of treatment is authorized, how often that treatment is authorized, and how long that treatment is authorized, amongst other things. The Department is currently in the process of drafting these rules, and unfortunately, Meuser Law is gravely concerned that the rules that are ultimately developed may very well make it even harder for our state’s first responder to access appropriate care.
Meuser Law Office was graciously invited by Law Enforcement Labor Services (LELS) and the Minnesota Police and Peace Officers Association (MPPOA) to participate in a meeting with Department of Labor Commissioner Ken Peterson and others to discuss the proposed treatment parameters. A copy of the draft of the rules as of September 27, 2018 can be found here.
Jen Yackley of Meuser Law Office attended the meeting with Representative Nick Zerwas, LELS, MPPOA, Commissioner Peterson and others, which took place on November 1, 2018. Here is a summary of the concerns we expressed regarding the proposed rules:
The Minnesota Legislature took an important and thoughtful step in passing Representative Zerwas’ PTSD First Responders workers’ compensation bill which created a statutory presumption of work-relatedness for our State’s first responders who have been diagnosed with PTSD. The goal of this legislation was to make it easier for our state’s firefighters, police officers and other first responders to get quick and effective access to mental health care – to reduce those hurdles that currently exist for people to get the help they need. The presumption is a necessary and good thing to try to reduce those barriers. As part of a compromise; however, the statute also requires the Department of Labor to incorporate “treatment parameters” with respect to treatment of PTSD. Based on the draft rules that we have now had the opportunity to review, we believe that the parameters – in a very practical sense – gut the entire purpose of Representative Zerwas’ presumption statute, and set up even more barriers standing in between our State’s first responders and effective mental health care.
Right now, we hear from our members every day, how difficult it has been to navigate the workers’ compensation system, where – we estimate based on anecdotal evidence – 80% of these claims are denied outright by the workers’ compensation insurers. For our State’s first responders – especially our police officers and firefighters, taking that first step to even ask for help, if they are struggling with a mental health issue, is a huge barrier. The stigma associated with PTSD in law enforcement and the fire services is slowly improving, but we have a long way to go. Officers and firefighters who are diagnosed with a mental health issue feel like failures. They feel like they are weak. They are embarrassed. They occasionally get push back from their supervisors or even colleagues. Sometimes they think sleeping with a loaded gun under their pillow, or waking up from a nightmare screaming, or reliving a terrible incident over and over again, or feeling on edge and angry all the time is normal. They make mistakes on the job – big and small. They drink too much to stop the incessant thoughts and nightmares, and they get DWIs. They use excessive force, and then they are reprimanded, and their department gets sued. The moment their department finds out that they have been diagnosed with a mental health condition, their career is over. They sometimes kill themselves.
And, then they get run through the wringer after most of them are denied for workers’ compensation benefits. The current system is designed for litigation – not for getting help to our State’s first responders. Representative Zerwas’ bill was designed to establish – presumptively, that the condition is presumed to be work-related if a first responder is diagnosed with PTSD. Hopefully, that will reduce the number of claims that are denied at the outset, and increase the number of first responders that can get early access to appropriate mental health care.
With things as they are, more often than not, by the time a first responder or firefighter seeks mental health care, things have reached a crisis level. There’s been a DWI, or a discipline issue at work, a hospitalization or suicide attempt, or the person’s marriage is falling apart. By that time, many of these people have been suffering silently for years or even decades. It’s a lot harder to undo the years of damage that have been done than it is if that person had access to effective medical care earlier on. We are aware that better outcomes for treatment of PTSD is directly tied to early intervention.
The approach that the Department of Labor seems to have taken with respect to creating the current proposed parameters are completely divorced from the reality of PTSD, are not based on relevant, reliable empirical data regarding PTSD treatment best practices, seem to be geared primarily towards protecting business interests and promoting cost savings, create onerous and overly burdensome requirements on behalf of the providers who are treating our State’s first responders, and set up institutional hurdles that for all intents and purposes, make it harder than it is now, for our State’s first responders to access early, effective mental health care. The proposed parameters gut the purpose of Representative Zerwas’ First Responder Presumption bill.
More specifically, our concerns are as follows:
- It appears that the proposed parameters – up until this point – were crafted primarily with input from business interests, including self-insured cities and workers’ compensation insurers, including League of Minnesota Cities and Minnesota Counties Insurance Trust. This includes doctors recommended by these entities, including Dr. Leesa Scott-Morrow, who we know to be primarily involved in adverse defense examinations. These proposed parameters seem to be oriented almost exclusively towards saving costs, even though there is zero evidence to suggest that cost containment is an issue of significance in handling of PTSD claims. From what we have seen, Minneapolis, St. Paul, and League of Minnesota Cities routinely deny 80% of PTSD claims involving police officers and firefighters. It is unknown whether Minnesota Counties has ever accepted a PTSD claim involving a police officer. Given the limited number of claims that are even accepted, it is hard to imagine that treatment for PTSD constitutes a significant cost for workers’ compensation carriers. Compared to treating a back injury, or any other orthopedic issues that might necessitate surgery, the cost of treating PTSD seems cheap. Further, there is no evidence of excessive or abusive billing practices in the context of PTSD treatment.
- The presumption statute is not going to “open the floodgates” to claims. Anecdotally, most of the “reasons” work comp carriers currently deny claims will still be viable defenses notwithstanding the presumption. For example, as of late, League of Minnesota Cities has routinely been denying claims on the basis that it is unclear whether an individual’s diagnosis of PTSD, depression, or anxiety is the cause of the disability where there are co-morbidities. That defense will not be affected by the presumption statute. Further, even where work comp carriers initially accept liability, they invariably invoke their right to an “independent” medical examination which, approximately 90% of the time, results in an adverse opinion, providing the insurer with a basis to cut off the person’s benefits. Work comp carriers already have plenty of tools at their disposal to deny or cut off PTSD claims.
- Minnesota’s first responders are a unique population, and they are unquestionably going to be the primary population affected by the treatment parameters. According to Commissioner Peterson, pre-presumption statute, police officers and firefighters make up approximately 2/3 of all workers’ compensation claims for PTSD. With the presumption statute, which expands the umbrella to include corrections, paramedics, and certain medical professionals, realistically, that proportion will go up even higher. Non-first responders will clearly be a very small portion of all PTSD claims in Minnesota, and the PTSD parameters must be written in such a way that they acknowledge the population that is actually going to be impacted. It is non-sensical to draft PTSD parameters on the basis of “norms” for the general public, when that is clearly not the population that will be primarily impacted. First responders are different than military, and they are different from the general public. They see and experience trauma – sometimes on a daily basis – that most civilians avoid having to experience even once in a lifetime. How many people who are involved in the actual drafting of the parameters have any personal experience with PTSD? Do any of them have friends or family that have experienced PTSD? Those involved in the drafting seem to have a rather “ivory tower” perspective of what PTSD is for our State’s first responders. How many of Minnesota’s first responders who actually have work-related PTSD had any input in the treatment parameters? For those reasons, attempting to generalize a “best-practices” guide that is cobbled together from the APA and the VA – which are geared unequivocally toward non-comparable populations, denies the reality that in Minnesota, the vast majority of people that will be impacted by the proposed parameters are our State’s first responders.
- The current proposed treatment parameters are – in effect – politically-designed rules that purport to establish medical best practices for the treatment of PTSD – primarily in first responders. These parameters are functionally a legislative medical experiment. The proposed rules literally require medical providers to apply an untested, unproven, and arbitrary treatment protocol to our State’s first responders suffering from PTSD. DLI and the legislature would never purport to tell a surgeon how to perform a surgery, but that is exactly what these parameters do. They force medical providers to use the specific approach set forth in the rules without regard to whether that is an appropriate approach for the individual patient, or not. The current parameters are pieced together from the VA, the APA, and “input” from a handful of medical professionals, whose opinions and specific recommendations are not disclosed, and not necessarily appropriate or relevant. Our first responders suffering from PTSD are NOT guinea pigs, and the parameters are not license for DLI to conduct medical experiments on our first responders. If DLI is truly trying to institute parameters that are rooted in validated, relevant medical practice, the Department needs to speak with practitioners that are actually treating our State’s first responders.
- As an alternative to the current approach of arbitrarily cobbling together rules from dubiously-appropriate sources, we propose that DLI use its rulemaking authority to commission a study regarding treatment practices and outcomes for Minnesota’s first responders that are currently treating for PTSD. Before we can write rules establishing “best practices” for treatment of PTSD in first responders, we have to have some idea what works and what doesn’t in this specific population, and that information must be obtained from providers who are actually providing treatment to those individuals.
We are cautiously optimistic that the Department of Labor is open to input from medical professionals who are currently treating members of Minnesota’s first responder community to find out what actually works.
At this time, it is unknown when the parameters will take effect, and in what form, but be assured that Meuser Law Office, P.A. will continue to fight for common sense parameters that accurately reflect the needs of our State’s first responders.
If you are Minnesota Police Officer, Firefighter, Corrections Officer or first responder experiencing work-related mental health issues and have questions about your rights under the law, contact Meuser Law Office, P.A. for a free, confidential, no-obligation consultation. Call us today at 1-877-746-5680.
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