Washington L&I may add nurses to PTSD presumption
On September 7, 2023, the Department of Labor and Industries issues a notice of proposed rulemaking seeking adding a new section to WAC 296-14-300 adding direct care registered nurses to the posttraumatic stress disorder (PTSD) presumptive law. The Department has announced that it is soliciting comment and holding a public hearing on October 17, 2023 both in person and by zoom.
This proposed rulemaking is the result of SB 5454 which provides presumptive coverage under the Industrial Insurance Act to Registered Nurses for PTSD. The new presumption is limited to Registered Nurses as defined in RCW Chapter 18.79 engaged in direct patient care activities and whose PTSD develops or manifests after 90 consecutive days of employment in the State of Washington.
The proposed rule issued by the Department shows that the Department is determined to make this new presumption mirror the first responder presumption contained in RCW 51.32.185. First, like the first responder presumption, it exempts Registered Nurses from RCW 51.08.142’s prohibition on stress related mental health conditions being compensable occupation disease. Second, like RCW 51.32.185, the presumption can be rebutted by a preponderance of evidence. Third, the presumption extends for three months following the nurse’s termination of employment for each year of qualifying service up to 60-months (5 years). Finally, and most importantly, like RCW 51.32.185, if there is a decision by the Board that allows the claim for benefits, qualifying claimant’s will be entitled to recover all of their costs including attorney’s fees.
To qualify for the presumption the Registered Nurse must only provide direct patient care for 90 consecutive days inside the State of Washington. This is a dramatically shorter period than the 10 years of qualifying service under RCW 51.32.185(5).
As we noted on this blog in June, this statute goes into effect on January 1, 2024. In preparation for an influx of these claims, employers and third-party administrators must develop processes to carefully evaluate these claims. First, it is important to verify that the claimant meets the bare minimum requirements for presumptive coverage. That is the claimant must both be a Registered Nurse as defined in RCW Chapter 18.79 and have engaged in direct patient care activities for at least 90 days in the State of Washington. If these two conditions are not met, then the claimant does not qualify for presumptive coverage.
However, even if these two minimum conditions are met, the employer should not immediately allow the claim. Claimant must also have had a traumatic event or events which meet the DSM-V criteria for PTSD. Finally, it is important in considering whether to allow the new presumptive claims, to obtain a personal history and complete set of claimant’s medical records particularly past mental health treatment records. The new statute provides that the presumption can be rebutted by a preponderance of evidence that a Registered Nurse’s PTSD is not related to her employment. Thus, it is important to know what the claimed traumatic event is.
I would encourage any employer who has concerns or would like to comment or appear at the hearing on the proposed rule. If you have any questions regarding this new presumption or would like assistant preparing a comment on the proposed rule to be submitted to the Department, do not hesitate to contact me at or by telephone at (971) 867-2724.
Posted by Joe Urbanski.
