Assigned to COMPS FOR
COMMITTEE
Assigned to COMPS FOR
COMMITTEE
ARIZONA STATE SENATE
Fifty-Third Legislature, Second Regular Session
PTSD; workers' compensation; presumption
Purpose
Establishes a presumption of compensability for post-traumatic stress disorder (PTSD) in first responders.
Background
The Arizona workers’ compensation system requires employers to cover employee medical treatment and lost wages associated with workplace injuries. An employee or dependent has a right to compensation for injury or death caused by an accident arising out of and in the course of employment if the employment caused or contributed to the injury or the employment created a necessary risk or danger inherent to the nature of the employment (A.R.S. § 23-1021). Accidents arising out of employment include occupational diseases that are due to conditions of a particular trade, occupation, process or employment, and not the ordinary diseases to which the general public is exposed (A.R.S. § 23-901).
A presumption is a legal inference that a fact exists, based on the proven existence of some other fact, that shifts the burden of production to the opposing party (Black's Law Dictionary, 8th Edition). In 2001, the Legislature established the presumption that a firefighter's disability or death resulted from a compensable occupational disease if the injury was caused by brain, bladder, rectal or colon cancer, lymphoma, leukemia, aden carcinoma or mesothelioma of the respiratory tract (Laws 2001, Chapter 192). The firefighter must have passed a physical examination before employment, been assigned to hazardous duty for five years and documented their exposure to a known carcinogen. The presumed compensability of these occupational diseases was extended to cover peace officers in 2003 (Laws 2003, Chapter 47). In 2017, the Legislature established presumptions of compensability for a firefighter's disability or death caused by heart-related, perivascular or pulmonary illnesses and several types of cancer, including kidney, lung, prostate and skin cancer (Laws 2017, Chapters 318 & 325).
According to JLBC's Fiscal Note, the legislation would cost state agencies between $1.8 million to $17.5 million in FY 2019, depending on how many workers are unable to go back to work due to a PTSD injury. If a large number of workers were never able to return to work, the ultimate cost to the state could be higher than the $17.5 million estimate in future years, as the number of workers receiving permanent total disability benefits through the workers compensation system grows over time. JLBC estimates that the cost to local governments would be between $9.8 million and $97.0 million, depending on how many workers were deemed unfit to return to work for a period of time.
Provisions
Presumption of Compensability for PTSD
1. Establishes the presumption that PTSD is a compensable occupational disease deemed to have arisen out of a first responder's employment if:
a) a treating licensed mental health professional determines the first responder has PTSD resulting from the performance of job duties; and
b) the first responder is receiving or has received licensed counseling.
2. Allows the presumption to be rebutted by a preponderance of the evidence that there is a specific cause of the PTSD other than the service-connected exposure.
3. Allows an employer's payment of licensed counseling for PTSD to create a presumption of compensability.
4. Allows a first responder to file a PTSD workers compensation claim up to one year after their last licensed counseling visit.
Counseling for Public-Safety Employees
5. Requires public safety employers to pay for up to 36 counseling visits, in additional to the currently authorized 12 visits, if further counseling is deemed necessary by a mental health professional.
6. Requires an employer to pay for counseling if a firefighter or peace officer was exposed to a psychologically traumatic event, or series of events.
7. Requires an employer, without using employee paid vacation, personal leave or sick leave, to continue providing commensurate pay and benefits to a public safety employee deemed unfit for work return by a mental health professional.
8. Adds, to employee groups eligible for employer-paid counseling visits, rescue and ambulance workers who are members of a public retirement system.
9. Prohibits an employer from requiring a public safety employee to undergo an independent medical examination.
10. Allows a public safety employee to select their treating mental health professional.
11. Requires employers to compensate health professionals at rates set by the Industrial Commission of Arizona.
12. Eliminates the scheduled January 1, 2023 repeal of the public safety employee counseling program.
Miscellaneous
13. Defines first responder as a:
a) peace officer;
b) firefighter; or
c) rescue or ambulance worker who is a member of any public retirement system.
14. Applies the definition of PTSD prescribed by the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders for the American Psychiatric Association.
15. Designates the legislation as the Officer Craig Tiger Act.
16. Makes technical and conforming changes.
17. Becomes effective on the general effective date.
House Action
HEALTH 2/8/18 DPA 9-0-0-0
3rd Read 2/20/18 57-2-1
Prepared by Senate Research
March 15, 2018
GH/lat