Saturday, March 7, 2020
A bill has been proposed in the Wyoming Senate that would provide first responders with workplace mental injury coverage. I support the bill, but it does seem at least problematic on “special laws” grounds. As Professor Justin Long at Wayne State has written:
Since the nineteenth century, most states have had constitutional clauses prohibiting “special laws.” These clauses were ratified to protect the people of each state from domination by narrow economic elites, who would use their economic power to win grants of privilege from the state legislatures. To fight the corrupt favors garnered by private interests in this way, state constitutional drafters wrote clauses requiring their legislatures to pass only “general laws” that would apply equally to all members of the regulated class.
Readers may recall that the Oklahoma opt-out law was struck as unconstitutional on special laws grounds (and no others).
In Wyoming special laws are unconstitutional under Article 3, Section 27 of the State constitution. Board of County Commissioners v. Geringer, 941 P.2d 742, 748 (Wyo.1997). “We also know that ‘[a]ll laws of a general nature shall have a uniform operation.’. . . This rule demands that these statutes be applied uniformly throughout the state, * * *.”
The reason the special laws issue occurs to me is that under the proposed Wyoming law there would be an unusual tripartite legal structure applicable to so-called “mental-mental” workplace injuries (mental disability produced by strictly mental workplace stimuli). The default rule under §27-14-102(xi)(J) is that mental-mental injuries are excluded from coverage. But because of the categorical workers’ compensation exclusion of such injuries, and in light of the Wyoming’s constitutionalization of the workers’ compensation quid pro quo (Art. 10, Sec. 4 of the Wyoming constitution), those suffering from mental injuries tortiously inflicted by an employer are not bound by the exclusive remedy rule. Collins v COP Wyoming, 366 P.3d 521 (Wyo. 2016). If the new PTSD bill is enacted, first responders may be entitled to coverage for “mental-mental” workplace injuries. Under the text of the bill, a covered injury does not include:
(J) Any mental injury unless it is:
(I) Caused by a compensable physical injury, it occurs subsequent to or simultaneously with, the physical injury and it is established by clear and convincing evidence, which shall include a diagnosis by a licensed psychiatrist, or licensed clinical psychologist or psychiatric mental health nurse practitioner meeting criteria established in the most recent edition of the diagnostic and statistical manual of mental disorders published by the American Psychiatric Association. In no event shall benefits for a compensable mental injury under this subdivision be paid for more than six (6) months after an injured employee's physical injury has healed to the point that it is not reasonably expected to substantially improve;. or
(II) Experienced by a first responder and established by clear and convincing evidence, which shall include a diagnosis by a licensed psychiatrist, licensed clinical psychologist or psychiatric mental health nurse practitioner meeting criteria established in the most recent edition of the diagnostic and statistical manual of mental disorders published by the American Psychiatric Association. The mental injury shall not be considered a compensable injury if the mental injury is directly attributed to disciplinary action, work evaluation, job transfer, layoff, demotion, termination or similar action taken by an employer . . . (Emphases supplied)
Thus, three different categories of claimants would be established under this statutory structure. Those who are first responders (potentially covered by workers’ compensation), those who are not first responders, but who are negligently injured (potentially covered in tort), and those who are neither first responders nor negligently injured (no recovery under workers’ compensation or tort).
This structure jars me. It may be rational, but it seems at a minimum to require transparent justification. Although I have not done a close study of how many states have attempted to implement PTSD coverage in this fashion, I think that moving from categorical mental-mental exclusion to coverage of PTSD for first responders (only) is a more difficult road for a legislature than moving from law that already provides general mental injury coverage for all claimants (even if subject to strict causation requirements) to PTSD coverage for first responders. In the latter types of jurisdictions, the primary legal obstacle may be how to deal with PTSD as a potential gradual injury where the statute in question requires “accidents.”
Michael C. Duff