Under the Wisconsin Worker’s Compensation Act, there are three kinds of compensable mental/psychological injuries. The first is referred to as a “physical/mental” injury, where a mental injury arises out of a physical injury. The second is a “mental/mental” injury, where the injury is caused by work stress, but there is no physical trauma. The third type is a “mental/physical” injury where a work stress trigger results in physical symptoms.
This post focuses on the second type: a mental/mental injury, also known as a non-traumatic mental injury.
School District No. 1:
A non-traumatic mental injury was first recognized in Wisconsin in 1974. Prior to that time, only mental injuries occurring after a traumatic, physical injury were compensable under the workers’ compensation system. The Wisconsin Supreme Court, in School District No. 1, Village of Brown Deer v. DILHR (“SDN1”), determined that the term “accident” in the Wisconsin Worker’s Compensation Act (“the Act”) allowed for mental injuries as well as physical injuries. 62 Wis. 2d 370 (1974).
However, noting that mental injuries were “to be examined with caution and carefulness because of the danger inherent in such cases of malingering,” the Court established an “extraordinary stress” or “greater dimensions” rule for non-traumatic mental injuries:
Thus it is the opinion of this court that mental injury nontraumatically caused must have resulted from a situation of greater dimensions than the day-to-day emotional strain and tension which all employees must experience. Only if the ‘fortuitous event unexpected and unforeseen’ can be said to be so out of the ordinary from the countless emotional strains and differences that employees encounter without serious mental injury will liability under [the Act] be found.
Id. at 377-78. Nearly 50 years later, the SDN1 rule remains precedent.
The courts have further interpreted the SDN1 standard over the past five decades. For example, in one pivotal decision, it was clarified that the test is an objective one, meaning it is not measured by the effect on the individual, but rather by how severe or traumatizing the stressor event is. Jenson v. Employers Mut. Cas. Co., 161 Wis. 2d 253 (1991).
When evaluating the unusual stress of the employee, the courts have determined it is to be compared to “similarly situated employees” and the event could not be “foreseen” by employees in a particular field. Probst v. LIRC, 153 Wis. 2d 185 (Ct. App. 1989). This made proving mental/mental claims by employees in high stress occupations, such as law enforcement, extremely difficult.
In 2021, the Wisconsin legislature sought to provide a limited exception to SDN1, to allow law enforcement officers and firefighters to collect 32 weeks of lost time and treatment expenses for work-related Post-Traumatic Stress Disorder (PTSD), even in those cases where the employee cannot prove extraordinary stress under the SDN1 standard.
The new statute, Wis. Stat. §102.17(9), only applies to PTSD, which must be diagnosed by a licensed psychiatrist or psychologist, must be proven by the preponderance of the evidence, and cannot be the result of a job transfer or disciplinary action. Benefits are limited to 32 calendar weeks of benefits and to three episodes in the lifetime of the employee. See also, Wis. Stat. §§102.44(7), 102.42(1p).
Subject to those limitations, the statute provides that the law enforcement officer or firefighter can receive these benefits even if the PTSD diagnosis is not “based on unusual stress of greater dimensions than the day-to-day emotional strain and tension experienced by similarly situated employees.” Wis. Stat. §102.17(9)3.
PTSD Claims after Act 29:
After April 29, 2021, there are two tracks for worker’s compensation benefits for law enforcement officers and full-time firefighters who can prove work-related PTSD.
Track 1 (Cannot Prove Extraordinary Stress)
Under this track, the employee need only prove an appropriate diagnosis of PTSD caused from the stresses on the job (but not due to disciplinary action, job evaluation, transfer, etc.) The employee is entitled to up to 32 calendar weeks of benefits from the time the injury is first reported. The employee does not have to meet the SDN1 standard.
Track 2: (Can Prove Extraordinary Stress)
Under this track, the law enforcement officer or full-time firefighter makes his or her claim like any other non-traumatic mental injury by any employee. The employee must prove extraordinary stress to meet the SDN1 standard. If the employee can meet that standard, he or she is not limited to the 32 weeks of benefits, but rather can access all benefits under the Work Comp Act.
Therefore, while Act 29 outlined a new path (Track 1) for these limited benefits for PTSD for law enforcement officers, it did not modify or remove the right for these employees to make claims for additional benefits (beyond 32 weeks) ifthe employee is able to prove the PTSD was caused by unusual stress and meets the SDN1 standard.