PENNSYLVANIA CLIENT ADVISORY – Act 121 of 2024: Mental Injuries for First Responders

On October 29, 2024, Governor Shapiro signed Senate Bill 365 into law as Act 121 of 2024, which amends the Pennsylvania Workers’ Compensation Act as it pertains to compensation for mental-mental injuries/post-traumatic stress injuries (PTSI) for first responders. The new law takes effect next year on October 29, 2025. The full copy of Act 121 can be found here.

Currently, Pennsylvania Courts hold that a first responder must prove that there were objective “abnormal working conditions” to establish a mental-mental claim. Because mental-mental injuries are inherently more subjective than physical injuries, this standard sets a high bar that can be difficult to meet. However, the new law eases the burden of proof of first responders to establish a mental-mental injury. This new law has done away with the objective “abnormal working condition” standard altogether.

Rather than proving an abnormal working condition, the first responder (defined in Act 121 as EMS, paid and volunteer firefighters, police officers and peace officers) only must establish that the mental injury resulted from a “qualifying traumatic event” sustained within the course and scope of employment. In other words, the post-traumatic stress injury must be tied to a traumatic event to be compensable. The question then becomes: what constitutes a “qualifying traumatic event?” Pursuant to Act 121, a “qualifying traumatic event” includes five (5) types of incidents or exposures:

1. Resulting in serious bodily injury or death to any person;
2. Involving a minor who has been injured, killed, abused or exploited;
3. Involving an immediate threat to life of the first responder/claimant or another individual;
4. Involving mass casualties; and
5. Responding to a crime scene for investigation.

Act 121 specifically disqualifies mental injuries resulting from “employment action” as a “qualifying traumatic event.” This would include any purported mental injuries arising out of disciplinary action, job performance, job transfers, or termination of employment.

In addition to the injury being tied to a “qualifying traumatic event,” there must be a formal diagnosis by a licensed psychologist or psychiatrist under the laws of the Commonwealth for the claim to be compensable. The claim must be filed within three (3) years from the date of diagnosis (which is not necessarily the date of the traumatic event), but the injury (unclear whether in this context “injury” means date of qualifying incident or date of diagnosis) must have occurred within five (5) years of the date of enactment.

Act 121 would also appear to apply to a first responder who leaves a qualifying job. Claims made against an employer after the last date of employment are permissible, as long as the direct exposure or “qualifying traumatic event” occurred while employed, even if the diagnosis occurs after the last date of employment. This section of Act 121 purports to eliminate the possibility of joinder petitions and disputes between employers.

Assuming the first responder can otherwise satisfy the elements of Act 121, benefits are payable for no more than 104 weeks. Notably, however, the law is silent on whether this limit is for both medical and indemnity benefits.

The passage of Act 121 certainly changes the landscape for first responder mental-mental claims. Until claims are actually litigated under Act 121, which will not take effect until October 29, 2025, there will be plenty of unanswered questions. A question remains as to what will happen to pending first responder mental-mental claims under the “abnormal working condition” standard or mental-mental claims that have already been adjudicated.  Will injured workers be permitted to withdraw pending claims and refile under Act 121? If so, the principles of res judicata and collateral estoppel might apply to bar those claims. If a claim is filed on or after October 29, 2025, Act 121 will presumably apply to injuries occurring during a “look back” period five (5) years earlier, as long as the Claim Petition is filed within the 3-year statute of limitations requirement. As noted above, for purposes of a potential statute of limitations defense, the date of diagnosis and not the date of the “qualifying traumatic event.”

While a “qualifying traumatic event” as defined by Act 121 is seemingly narrow in light of the five (5) enumerated incidents or exposures, these events as described are actually quite broad. There are numerous potential factual situations that could arise which will now need to be fleshed out by the Courts. The issue of what constitutes a “qualifying traumatic event” is likely to be a hotly litigated issue due to questions left unanswered by Act 121. What type of injury rises to the level of a “serious bodily injury?” What types of investigations will qualify? What constitutes a “mass casualty?” The five (5) scenarios laid out by Act 121 make it possible for a traumatic event that would not satisfy the burden of an “abnormal working condition” to qualify as a “traumatic event” and could open the door for compensable PTSI claims that would otherwise be excluded. While Act 121 specifically states that a mental injury does not need to be the result of an “abnormal working condition” to be compensable, it is silent as to whether first responders can still satisfy the “abnormal working condition” standard to circumvent some of the requirements of Act 121 and receive benefits beyond the 104-week cap.

Lastly, the fact that a diagnosis is not made by a qualified medical provider within the Commonwealth (presumably opinions made by out of state physicians will not satisfy this section of Act 121) may also serve to bar a claim under Act 121.

While we all navigate this new landscape of first responder mental-mental claims, please do not hesitate to contact a TT&H workers’ compensation attorney to assist with any questions or issues that arise.