According to an article published by our attorney Jared P. O’Connor in the most recent edition of New Hampshire Bar News, Post Traumatic Stress Disorder (PTSD) in first responders will now be automatically presumed as work-related. This new legal presumption was created by Senate Bill 59 (SB59) and signed into law by Governor Sununu on July 17, 2019.
While the existing law covered “stress claims,” or illnesses or injuries sustained over a period of time at work, general awareness of the law was low, and workers were reluctant to file workers’ comp claims for job-related mental stress. In addition, many claims were routinely denied, and workers were afraid of being professionally rejected after filing a claim.
During commission hearings designed to study PTSD in first responders, and develop SB59, clinical psychologists and therapists confirmed that some degree of PTSD, or shorter-term Acute Stress Disorder (ASD), is almost inevitable following the day-to-day trauma first responders are exposed to. Workers who testified had been shot or assaulted, and many more had routinely encountered dead, dying, or disfigured adults and children.
Unlike unexpected on-the-job traumas, like school shootings or car accidents, PTSD/ASD-causing trauma is causally related to the day-to-day duties of first responders. While mental, stress-related claims are quite rare for other positions, they are almost inherent to the very job of being a first responder. When a cop, firefighter, EMT, or corrections officer is hired, they are all but signing up to develop PTSD/ASD.
After discussing these topics, the Commission to Study the Incidence of Post-Traumatic Stress Disorder in First Responders developed SB59 and came to four conclusions:
- Explicitly calling out PTSD and ASD as injuries covered by workers’ compensation might help encourage first responders to seek treatment when experiencing symptoms.
- The existing law must be amended to include a presumption that PTSD/ASD in first responders is work-related.
- The class of “first responders” to which the presumption will apply should be expanded.
- The work of the Commission should be continued for another year in order to review how proposed changes work in practice.
Statutory Changes Made by SB59
The definitional section of statute 281-A:2,XI was amended to create an exception for PTSD and ASD:
The law now states:
“‘Injury’ or ‘personal injury’ shall not include diseases or death resulting from stress without physical manifestation, except that, if an employee meets the definition of an ‘emergency response/public safety worker’ under RSA 281-A:2, V-c, the terms ‘injury’ or ‘personal injury’ shall also include acute stress disorder and post-traumatic stress disorder.”
While other employees may require their mental stress claim to have an element of physical manifestation to be compensable, “emergency response / public safety workers” are now covered when they exhibit any symptoms of PTSD/ASD.
The same statute was also changed to amend the definition of an emergency response or public safety worker. Now, the law reads:
“call, volunteer, or regular firefighters; law enforcement officers certified under RSA 106-L; certified county corrections officers; emergency communication dispatchers; and rescue or ambulance workers including ambulance service, emergency medical personnel, first responder service, and volunteer personnel.”
911 Operators are often overlooked but are also deeply connected to intense trauma as part of their everyday work.
Most importantly, however, was the creation of RSA 281-A:17-c. The new statute (below) shifts the burden of proof and presumes that working as a first responder causes PTSD/ASD.
“Notwithstanding RSA 281-A:2, XI and XIII, RSA 281-A:16, and RSA 281-A:27, there shall be a prima facie presumption that acute stress disorder and post-traumatic stress disorder in an emergency responder, as defined in RSA 281-A:2, V-c are occupationally caused.”
Enforcing the Law
Although the definitional changes from SB59 have been passed into law, the presumption does not become effective until January 1, 2021.
That being said, first responders may be able to file a workers’ comp claim that is well within the statute of limitations for New Hampshire.