Non-Traumatic Mental Injuries Under Wisconsin Worker’s Compensation

A non-traumatic mental injury is a psychological injury a worker sustains in the course of his or her employment unrelated to any physical trauma, overuse of a body part, or exposure to a hazardous substance. The Wisconsin Worker’s Compensation Act explicitly recognizes non-traumatic mental injuries arising from unusual or extraordinary work stress.

Wisconsin Has Recognized Non-Traumatic Mental Injuries Since 1974

Non-traumatic mental injuries were first recognized in the 1974 Wisconsin Supreme Court case, School District No. 1 v. DILHR. In that case, the Wisconsin Supreme Court decided that for a non-traumatic mental injury to be compensable, the event(s) that caused the injury “must have resulted from a situation of greater dimensions than the day-to-day emotional strain and tension which all employees must experience.” Now known as the “unusual” or “extraordinary stress” standard, following the advent of the School District No. 1 decision, non-traumatic injuries were explicitly codified into the Wisconsin Worker’s Compensation Act by the legislature under Wis. Stat. § 102.01(2)(c).

Wisconsin Courts View Mental Injuries with Skepticism

Unlike a fractured arm or herniated spinal disc, mental injuries cannot be objectively observed or detected with an X-ray or MRI. Because mental injuries cannot be seen with the human eye, the Wisconsin Supreme Court has determined that mental injury claims “should be examined with caution and carefulness because of the danger inherent in such cases of malingering.” Therefore, while mental injuries can be just as severe and debilitating as physical injuries, Wisconsin courts have historically maintained a strong sense of skepticism when assessing mental injury claims.

How Wisconsin Courts Have Interpreted the “Extraordinary Stress” Standard 

Over time, Wisconsin courts have further refined the “extraordinary stress” standard. Until this year, non-traumatic mental injuries would only be found compensable if they arose from unusual or extraordinary stresses in the context of a claimant’s particular line of work. In the years after the School District No. 1 decision, the courts restricted the mental injury standard to an analysis of “the type of job duties that employees similarly situated face, rather than the nature and magnitude of the stresses and strains which [are] actually endured.”

Said differently, what could be considered “extraordinary stress” for a gas station clerk will not be considered extraordinary stress for a police officer. After the extraordinary stress standard was limited to a job-specific analysis, a Wisconsin court in one case denied a police officer’s mental injury claim after he shot and wounded a suspect. The court reasoned that the nature of law enforcement requires that police must use their firearms from time to time, and therefore the incident did “not fall outside of the norm for a small-town police officer.”

In sum, the extraordinary stress standard placed an additional legal barrier beyond the standard for all other worker’s compensation injuries. For all unintentional physical injuries arising out of employment, compensability is generally found if a medical provider determines that an injury was caused by a specific traumatic incident or occupational exposure. On the other hand, for mental injuries, even if it is found that the condition is work-related by a psychologist or psychiatrist, the claim can still be denied on the legal grounds that the stressful incident causing the condition did not meet the extraordinary stress standard. To put the standard in the context of the police officer decision described above, the court did not dispute that the petitioner’s mental injury was work-related. Rather, they found that the incident itself was not so unusual as to fall outside of the day-to-day stressors experienced in police work, and as a result did not meet the extraordinary stress standard.

Wisconsin’s “Extraordinary Stress” Standard Unreachable for Most Police and Firefighters

The incredibly high bar set by the extraordinary stress test is rarely met in the context of police and firefighting given the sometimes graphic, dangerous, and violent nature of work. Mental injury claims with well-documented medical support made by both police and firefighters are routinely denied by worker’s compensation claims adjusters resulting in either tough conversations with applicants’ lawyers regarding the extraordinary stress standard or prolonged litigation. In both circumstances, the police officer or firefighter suffering from a mental injury usually ends up going untreated for months or years at a time, which not only creates problems for immediate families and employers, but also impedes effective policing and firefighting throughout the state.

One of the more common mental injury claims seen in the Wisconsin worker’s compensation system are those for Post-Traumatic Stress Disorder (PTSD). The American Psychiatric Association describes PTSD as “a psychiatric disorder that can occur in people who have experienced or witnessed a traumatic event such as a natural disaster, a serious accident, a terrorist act, war/combat, rape or other violent personal assault.” General symptoms of PTSD include:

  • intense and disturbing thoughts about the traumatic experience long after the event;
  • flashbacks and nightmares;
  • feelings of sadness, fear, or anger;
  • avoidance of situations or people that bring about reminders of the traumatic experience; and,
  • strong negative reactions to loud noises or unintentional physical contact.

While not all police and firefighters develop PTSD after a traumatic experience, many do, and the Wisconsin Worker’s Compensation Act was originally written to include PTSD as a compensable injury. In practice, however, the operative legal standard governing worker’s compensation mental injuries has been refined by the courts to the point where actually receiving PTSD coverage has become nearly impossible for police and firefighters.

2021-2022 Wisconsin State Legislature Reforms to PTSD Claims

In response to the routine denial of PTSD claims among police and firefighters over the years, on April 14, 2021, the Wisconsin State Assembly passed Senate Bill 11, which noticeably reforms how the worker’s compensation insurers must address PTSD claims for first responders going forward. The bill will be signed into law this spring by Governor Evers.

The reforms and standards for benefits in the new bill include:

  • The PTSD diagnosis must be made under the criteria outlined in the 5th Edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association;
  • The PTSD must be diagnosed by a licensed psychiatrist or psychologist;
  • For PTSD claims, the burden of proof is reduced to a “preponderance of the evidence,” which officially does away with the extraordinary stress standard;

The bill, however, is relatively narrow. Its limits are:

  • The reforms apply only to police and firefighters;
  • The PTSD claim cannot be the result of good faith actions taken by the employer against a police officer or firefighter, including discipline, work evaluations, job transfers, layoffs, demotions, and/or terminations.
  • Potential mental injuries other than PTSD, such as depression or anxiety, are not covered;
  • Wage loss benefits, otherwise known as temporary total disability, are capped at 32 weeks;
  • A firefighter or police officer can only make three PTSD-related claims in his or her lifetime, including with subsequent employers.

Analysis of Wisconsin’s 2021 Mental Injury Reforms

While limited in scope, the legislature’s reforms to PTSD claims addresses both the unworkable extraordinary stress standard and the important public policy concern of providing mental health treatment to Wisconsin’s police and firefighters. According to a recent study, first responders are more likely to die by suicide than a line-of-duty incident. As the importance of mental health increasingly continues to be acknowledged in American society, this bill has the effect of making essential mental health treatment more widely available to police and firefighters than ever before in Wisconsin worker’s compensation history.

Though certain procedural elements to this legislation will surely be litigated in the court system, these reforms will lower the number of denied mental injury claims and allow most police and firefighters to get the PTSD treatment needed for them to continue working as first responders.

Hawks Quindel Advises Police and Firefighters with Questions on PTSD Claims

If you are a police officer or firefighter with questions about a mental injury or PTSD diagnosis, contact Hawks Quindel’s experienced worker’s compensation attorneys for a free claim evaluation.

Brandon Jubelirer
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