From The Burlington Free Press, February 8

MONTPELIER, VT – Firefighters are at a disadvantage if stressful events on the job trigger mental disorders that prevent them from working, the president of the Professional Fire Fighters of Vermont has told the House Commerce Committee.

To receive compensation for work missed and medical treatment under the workers' compensation system, firefighters have to show they faced extraordinary stress even for their line of work -- a hurdle higher than for people whose employment doesn't put them in life-and-death situations.

Matt Vinci, a captain in the South Burlington Fire Department and head of the 300-member firefighters union, urged lawmakers to revise the standard used to decide mental health claims under the workers' compensation program.

Without a change, "you are essentially eliminating any mental health claims in high-stress jobs," agreed Jim Dunn, legal counsel to the Professional Fire Fighters.

In 1997, the Legislature enacted a law that required health insurers to provide comparable coverage of mental and physical illnesses.

"We have discovered that our very strong statement on parity isn't complete," said House Commerce Committee Chair- man Warren Kitzmiller, D-Montpelier.

Rep. Paul Poirier, D-Barre, led the effort a dozen years ago to pass the groundbreaking parity legislation. Now, having returned to the Legislature after an eight-year absence, Poirier has proposed legislation to bring greater parity to the worker compensation system.

"It was something that was brought to my attention that there was a different standard being used," Poirier said.

Work-triggered mental conditions were eligible for compensation before the state enacted the parity requirement for health insurance, said J. Stephen Monahan, director of the workers' compensation and safety division at the Department of Labor. He cited a 1983 case in which compensation was awarded for mental distress claim.

Still, such awards are unusual, Monahan said. Each year there are 17,000- to-18,000 preliminary reports of on-the-job injuries -- physical and mental," he said. "Only a very small percentage of claims in any year are mental."

"Going back to 2000, we've probably had 250 claims alleging a mental condition," Monahan said.

Private insurance companies have 21 days to investigate claims and accept or deny them. All employers are required to carry workers' compensation insurance. There are more than 200 companies. Some employers self-insure, including the state and the League of Cities and Towns.

The Department of Labor gets involved when there are disputes about claims, Monahan said. The standard used to decide disputed mental health cases has "evolved" as a result of two Supreme Court decisions.

A 2003 decision involving a claim by a Burlington firefighter created the hurdle that Vinci of the Professional Fire Fighters and Poirier want to knock down.

That decision said that to assess a stress alleged to have triggered a mental disability, regulators should compare the claimant's situation to the kind of stresses typically faced by people doing the same kind of work.

Beth Robinson, a Middlebury attorney, argued the firefighter's case. She said the court's ruling has meant, "the people who have the highest stress occupations have the least likelihood of workers' compensation claims."

No such hurdle exists for physical illness or injury claims, she noted. "We want to put psychological injuries on the same foot as physical."

The department has yet to take a position on any changes, Monahan said.

Insurance companies that provide workers' compensation coverage worry about changing current practice.

"This is generally a middle ground in how other states have looked at the issue," said John Hollar, a lobbyist representing the American Insurance Association.

In testimony before the House Commerce Committee, Hollar argued that mental health claims are different from physical health claims. "In these kinds of cases," he said, "there is no physical manifestation. The only real evidence is going to be an employee's self-report."

How could employers evaluate or challenge workers' claims of job-triggered disabilities without comparing their situations to others in similar situations? Hollar posed.

He also suggested that relaxing the standard would drive up costs. "That is going to create a considerable new pressure on the workers' compensation system."

Kitzmiller said that sounded like the same argument insurers made against the parity requirement for health insurance. He noted he was familiar with the arguments because his late wife, Karen, who preceded him in the Legislature, had helped push through the parity law.

"Costs didn't go through the roof," Hollar said, "because there is an allowance in the law to treat them differently." Health insurers are allowed to provide mental health coverage through "managed care" programs that put controls utilization.

Ken Libertoff, executive director of the Vermont Association for Mental Health, has advocated for mental health parity for more than 20 years.

"In 1997, following a highly engaged, emotional and thorough investigation, the Vermont Legislature decided state policy would create parity," Libertoff said. "The time has come to create a similar standard in workers compensation."

Kitzmiller promises action on the bill. The bar is too high for fire fighters and others who work in high stress occupations, he said. "There is sympathy on the committee to change that."

"On the other hand, there is sympathy on the committee for the need for a bar," Kitzmiller said, referring to a standard to assess stresses that workers say triggered mental disabilities.

"We think a solution is needed," Kitzmiller said, "and we think a solution is possible."