The Return of “Mental-Mental:” Will Workers Compensation Again Be Extended to Cover Emotional Trauma?

LR-Calculator-1As my partner Mark Sommaruga observed in a recent post, the current term of the General Assembly may consider extending workers compensation coverage to employees who suffer purely emotional trauma, without a causative physical injury. Such an extension of coverage would be a reversion to prior workers compensation law that was amended over 20 years ago.

Prior to 1993, the Workers Compensation Act provided benefits to an employee who had sustained an injury in the course of his employment, with no limitation on the scope of injury.  For example, the Connecticut Supreme Court held that a teacher who had a psychological breakdown caused by the notoriety of being wrongfully accused of abuse of a student had suffered a workplace injury and was eligible for workers compensation benefits.   The three possible combinations of physical and psychological injury became known as physical-mental, where psychological symptoms result from a physical injury; mental-physical, such as emotional stress causing hypertension; and mental-mental, where there is a mental or emotional impairment but no physical cause from injury or disease.

In Public Act 93-228, enacted in 1993, the Legislature amended the Workers Compensation Act to exclude a mental or emotional impairment from the definition of injury unless the impairment arises from a physical injury or occupational disease.  The amendment went on to explicitly exclude from the definition of injury a mental or emotional impairment resulting from a personnel action, including transfer, demotion or termination; in short, “mental-mental” claims were no longer covered by workers compensation.

Of course, this amendment to the Workers Compensation Act did not prevent employees from seeking compensation for emotional trauma alleged to be work-related.  To the contrary, lawsuits for wrongful discharge commonly include a claim for infliction of emotional distress, and employers are no longer able to defend against such claims by invoking the exclusivity provision of the Workers Compensation Act.

In 2005, in Public Act 05-228, the Legislature modified the ban on compensation for mental or emotional impairment from non-physical causes to allow such claims by police officers arising from the officer’s use of deadly force or subjection to deadly force in the line of duty. Then Public Act 12-126, effective in 2012, allowed mental or emotional impairment claims for a fire-fighter diagnosed with post-traumatic stress disorder originating from witnessing the death of another fire-fighter in the line of duty. Although our Legislature can take surprising turns, further expansion of workers compensation benefits for mental or emotional impairment is most likely to be similarly incremental.

The bill currently being considered by the General Assembly’s Labor and Public Employees Committee is noteworthy mostly for its careful limitations.  Raised Senate Bill No. 134 would allow compensation for a mental or physical impairment, but only if a) it is diagnosed by a psychiatrist or psychologist, b) the employee is a police officer, fire fighter or ambulance worker, c) the cause of the trauma is visually witnessing the death or maiming, or the immediate aftermath of a death or maiming, of one or more human beings by another human being, d) the cause was not a natural disaster or a motor vehicle collision, and e) the witnessing was casually connected to the employee’s employment.  Further limitations are that “maiming” is defined as loss of a limb or organ, and “immediate aftermath” is defined as up to six hours after law enforcement officers have secured the scene.  In short, compensation seems to be limited to first responders to the scene of assaults, such as shootings, but not tornadoes, floods, earthquakes or highway pileups.

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