Governor
Phil Scott signed Senate Bill 56 on June 15, 2017. The pertinent section of the
Bill for workers’ compensation purposes is Section 18, which contains a new
standard for so-called “mental-mental” claims.
“Mental-mental” claims are
claims for workers’ compensation benefits for a mental condition that arose
from a mental stimulus. Previously, the injured worker was required
to prove a causal connection between the stress and the injury, that the
stresses encountered while working for the employer were significant and
objectively real, that the job placed greater emotional strain and tension on
him/her than other employees, and the stress could not be the result of bona
fide personnel issues. However, the amendment to 21 V.S.A.
§601(11)(J)(i) provides that a mental condition resulting from a work-related
event or stress shall be a compensable claim if it is demonstrated by
the preponderance of the evidence that: “(I) the work-related event or
work-related stress was extraordinary and unusual in comparison to pressures
and tensions experienced by the average employee across all occupations; and
(II) the work-related event or work-related stress, and not some other event or
source of stress, was the predominant cause of the mental condition.” The
section also provides that a mental condition is not compensable if it results
from disciplinary action, work evaluation, job transfer, layoff, demotion,
termination or similar action taken in good faith by the employer. The
employee will still have the burden of proof to demonstrate that he/she can
meet the standard by a preponderance of the evidence, but it is likely that
employers and carriers will see a rise in mental-mental claims with the change
in the standard.
Section
18 also amends 21 V.S.A. §601(11) to state that “in the case of police officers,
rescue or ambulance workers, or firefighters, post-traumatic stress disorder
that is diagnosed by a mental health professional shall be presumed to have
been incurred during service in the line of duty and shall be compensable,
unless it is shown by a preponderance of the evidence that the post-traumatic
stress disorder was caused by nonservice-connected risk factors or
nonservice-connected exposure.” The amendment further states that a
police officer, rescue or ambulance worker or firefighter who is diagnosed with
post-traumatic stress disorder within three years of his/her last date of
employment as a police officer, rescue or ambulance worker, or firefighter
shall be eligible for workers’ compensation benefits under this section.
The amendment creates a presumption that any emergency worker diagnosed with
post-traumatic stress disorder has a compensable workers’ compensation claim
for benefits. In order to deny the compensability of the claim, the
carrier/employer will have to show by a preponderance of the evidence that the
post-traumatic stress disorder was caused by something unrelated to the
emergency service work.
A
“mental health professional” is defined as a person with professional training,
experience and demonstrated competence in the treatment and diagnosis of mental
conditions, who is certified or licensed to provide mental health care services
and for whom diagnosis of mental conditions are within his/her scope of
practice, including a physician, nurse with recognized psychiatric specialties,
psychologist, clinical social worker, mental health counselor, or alcohol or
drug abuse counselor. The categories of mental health professionals are
very broad as written in the amended statute. In Vermont, there are
specific licensure requirements for some, but not all, categories of mental
health care providers. There will likely be future challenges and
disputes regarding whether specific providers fit within the definition as
amended by the Legislature. It does not appear that licensure is required.
The
effective date for S.56 is July 1, 2017.
Bill
as passed by the Vermont House and Senate: http://legislature.vermont.gov/assets/Documents/2018/Docs/BILLS/S-0056/S-0056%20As%20Passed%20by%20Both%20House%20and%20Senate%20Official.pdf
