The History of the PTSD Presumption
This blogger greets you again, but
with the topic of Post Traumatic Stress Disorder (PTSD) and Labor Code §
3212.15 (the PTSD presumption). The PTSD presumption under Labor Code § 3212.15
is distinct from general psychiatric injuries under Labor Code § 3208.3 and was
first introduced, passed, approved and chaptered in 2019 through Senate Bill 542
and was amended through Senate Bill 623 that was introduced, passed, approved and
chaptered in 2023 which amended subdivision (f) and added subdivision (g) which
extended its sunset expiration date to January 1, 2029 (previously January 1,
2025). Further, Senate Bill 623 added a reporting requirement on PTSD claims
filed by “public safety dispatchers, public safety telecommunicators, and
emergency response communication employees from January 1, 2020, through
December 31, 2023,” due no later than January 1, 2025. Also, it added a reporting
requirement on data regarding “the effectiveness of the presumption created by
this section” due no later than January 1, 2027. Senate Bill 623 has been the
only legislation changing Labor Code § 3212.15 (the PTSD presumption) since its
inception in 2019.
Prior Efforts to Change the PTSD Presumption (SB 284, AB 597, AB 1107)
Senate Bill 284 attempted to expand
coverage to public safety dispatchers, telecommunicators, emergency response
communications employees, The State Department of State Hospitals, The State
Department of Developmental Services, The Military Department, The Department
of Veterans Affairs and various other sworn peace officers but Senate Bill 284 was
vetoed by Governor Gavin Newsom on September 29, 2022 who explained, “Expanding
coverage of the PTSD injury presumption to significant classes of employees
before any studies have been conducted on the existing class for whom the
presumption is temporarily in place could set a dangerous precedent that has
the potential to destabilize the workers’ compensation system going forward, as
stakeholders push for similarly unsubstantiated presumption.” Other proposed and
pending Assembly Bills include Assembly Bill 597 aimed to cover emergency
medical technicians and paramedics and Assembly Bill 1107 aimed to cover
additional Peace Officers. Each are in “Referred to Com. on INS.” status as of
01/04/2024 (AB 597) and 03/02/2023 (AB 1107). Based on the new reporting
requirements in Senate Bill 623, will the PTSD presumption come to an end? If
not, who will be covered next? And who is covered now?
Covered Employees
For a list of employees covered under the PTSD presumption, please review the most current version of Labor Code § 3212.15 subdivision (a) as this subdivision lists the classes of employees covered. At the time of writing this blog (2024), Labor Code § 3212.15 currently applies to:
(1)
Active firefighting members, whether volunteers, partly paid, or fully paid, of
all of the following fire departments:
(A)
A fire department of a city, county, city and county, district, or other public
or municipal corporation or political subdivision.
(B)
A fire department of the University of California and the California State
University.
(C)
The Department of Forestry and Fire Protection.
(D)
A county forestry or firefighting department or unit.
(2)
Active firefighting members of a fire department that serves a United States
Department of Defense installation and who are certified by the Department of
Defense as meeting its standards for firefighters.
(3)
Active firefighting members of a fire department that serves a National
Aeronautics and Space Administration installation and who adhere to training
standards established in accordance with Article 4 (commencing with Section
13155) of Chapter 1 of Part 2 of Division 12 of the Health and Safety Code.
(4)
Peace officers, as defined in Section 830.1 of, subdivisions (a), (b), and (c)
of Section 830.2 of, Section 830.32 of, subdivisions (a) and (b) of Section
830.37 of, Section 830.5 of, and Section 830.55 of, the Penal Code, who are
primarily engaged in active law enforcement activities.
(5)
(A) Fire and rescue services coordinators who work for the Office of Emergency
Services.
(B) For purposes of this paragraph, “fire and rescue services coordinators” means coordinators with any of the following job classifications: coordinator, senior coordinator, or chief coordinator.
Qualifying Injury
What type of psychiatric injury is
covered under this presumption? Labor Code § 3212.15 subd. (b) explains
“injury” includes “post-traumatic stress disorder,” as diagnosed according to
the most recent edition of the Diagnostic and Statistical Manual of Mental
Disorders published by the American Psychiatric Association that that develops
or manifests itself during a period in which any person described in
subdivision (a) is in the service of the department, unit, office, or agency. Therefore,
this statute specially applies to PTSD which is a distinct diagnosis (a
critical factor). Another critical factor is whether the PTSD injury developed
or manifested itself during a period in which the covered employee was in the
service of the department, unit, office, or agency. Expert medical opinion
framed in terms of substantial medical evidence is required under this section.
Compensation
There are many technical rules
involving the PTSD presumption for example, compensation shall not be paid
pursuant to this section unless the person performed services for the
department, unit, office, or agency for at least six months (the six months of
employment need not be continuous); unless the injury is caused by a sudden and
extraordinary employment condition. Upon a finding of compensability regarding
the PTSD presumption, compensation includes full hospital, surgical, medical
treatment, disability indemnity, and death benefits. The rate of pay and amount
of pay (if any) are derived from a variety of factors and vary from case to
case.
Date of Injuries Covered
Labor Code § 3212.15 subd. (e) states, “This section, as added by Section 2 of Chapter 390 of the Statutes of 2019, applies to injuries occurring on or after January 1, 2020.” And Labor Code § 3212.15 subd. (g) states, “This section shall remain in effect only until January 1, 2029, and as of that date is repealed.”
File a Claim – You Are Not Alone
If you suspect you have an
industrial PTSD injury that developed or manifested itself during a period in
which you were in the service of the department, unit, or agency and are an
employee covered under the classes listed in Labor Code § 3212.15, subd. (a), file
a claim right away without fear. Whether you wish to file a presumptive claim,
or any claim in general, it is illegal for an employer to discriminate or
otherwise discharge, or threaten to discharge, or in any manner discriminate
against you because you filed or made known your intention to file a claim. See
Labor Code § 132a. So don’t fear discrimination for filing a claim. And for
PTSD in public safety, you are not alone. Senate Bill No. 542 Section 1
explained, “The Legislature finds and declares all of the following:
(a)
Firefighting and law enforcement are recognized as two of the most stressful
occupations. Only our nation’s combat soldiers endure more stress. Similar to
military personnel, California’s firefighters and law enforcement personnel
face unique and uniquely dangerous risks in their sworn mission to keep the
public safe. They rely on each other for survival while placing their lives on
the line every day to protect the communities they serve.
(b)
On any given shift, firefighters and law enforcement personnel can be called on
to make life and death decisions, witness a young child dying with their
grief-stricken family, or be exposed to a myriad of communicable diseases and
known carcinogens. Firefighters and law enforcement personnel are constantly at
significant risk of bodily harm or physical assault while they perform their
duties.
(c)
Constant, cumulative exposure to these horrific events make firefighters and
law enforcement personnel uniquely susceptible to the emotional and behavioral
impacts of job-related stressors. This is especially evident given that the
nature of the job often calls for lengthy separation from their families due to
a long shift or wildfire strike team response.
(d)
While the cumulative impacts of these aggressive, deadly events are taking
their toll, our firefighters and law enforcement officers continue to stand up
to human-caused devastation and nature’s fury, but they are physically and
emotionally exhausted.
(e)
Trauma-related injuries can become overwhelming and manifest in post-traumatic
stress, which may result in substance use disorders and even, tragically,
suicide. The fire service is four times more likely to experience a suicide
than a work-related death in the line of duty in any year.
(f)
It is imperative for society to recognize occupational injuries related to
post-traumatic stress can be severe, and to encourage peace officers,
firefighters, and any other workers suffering from those occupational injuries
to promptly seek diagnosis and treatment without stigma. This includes
recognizing that severe psychological injury as a result of trauma is not
“disordered,” but is a normal and natural human response to trauma, the
negative effects of which can be ameliorated through diagnosis and effective
treatment.”
The PTSD Presumption v. the Good Faith Personnel Defense
How does the defense in Labor Code § 3208.3 subd. (h) come into play which says, “No compensation under this division shall be paid by an employer for a psychiatric injury if the injury was substantially caused by a lawful, nondiscriminatory, good faith personnel action. The burden of proof shall rest with the party asserting the issue.” For example, what happens if your PTSD injury was substantially caused by something your employer lawfully did to you (i.e. reprimanded you, threaten to fire you, demoted you, suspended you on a lawful basis)? Assuming an employee demonstrates by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury (which arguably does not apply to the PTSD presumption but instead applies to other psychiatric injuries), will the court find that the specific PTSD statute under Labor Code § 3212.15 controls over the good faith personnel action defense found in Labor Code § 3208.3 subd. (h)? Afterall, it is well established that where a general statute conflicts with a specific statute, the specific statute controls over the general one. (See Bates v. County of San Mateo (2019) 84 CCC 648 at page 656 (panel decision) citing Fuentes v. WCAB (1976) 41 CCC 42. Therefore, it’s my legal position Labor Code § 3212.15 controls over Labor Code § 3208.3 which leaves the employer disputing the PTSD presumption only by “other evidence” that must be reasonably certain in view of all the circumstances.
Presumptive Injury Technicalities
For presumptive injuries (heart
trouble, pneumonia, cancer, meningitis, blood-borne infectious disease, MRSA,
tuberculosis, hepatitis, Lyme disease, biochemical substances, hernia, lumbar
spine injuries, and yes, PTSD), this blogger disclaims a warning. Generally, no
presumption is conclusive and presumptions are controvertible (rebuttable) and
just because a presumption applies, that does not mean your presumptive claim will
be automatically accepted. Here is how it works - once the employee demonstrates
that the presumption applies, the burden shifts to the employer to negate it
and disprove that the injury was related to work. The law does not require
absolute certainty nor conclusive proof to overcome the presumption. All that
the law requires is proof that is reasonably certain in view of all the
circumstances. The evidence necessary to overcome a rebuttable presumption
depends on the character and circumstances of each case, and no hard-and-fast
rule can be laid down other than that proof to a reasonable certainty, such as
would convince the mind of an ordinary person, must be presented.
A common misconception of
presumptive injuries involves the mistaken belief that if a presumption applies,
the claim should be automatically accepted. But that is incorrect. Afterall, if
a claim is accepted (and not barred by the statute of limitations [see Labor
Code § 5405 where accepted claims can turn into time-barred claims]), the
employer could be responsible for a lifetime of medical care including other
benefits that can become very expensive. So, in most cases, before a claim is
accepted, discovery is allowed (typically while your claim remains denied)
which often involves a deposition, subpoena of records and evaluations by a
Medical-Legal Expert. But you don’t have to go through this process alone (and
you shouldn’t).
Get Help Right Away
Our attorneys have built a track
record of success at trial and on appeal in state and federal courts across
California. Founded on attorney-client privilege, we have been assisting police
officers, firefighters and other safety workers for decades in matters ranging
from internal discipline and criminal defense to wage and hour, disability and
workers’ compensation claims. If agreed upon, our office can file your claim
for you, direct you to treatment, give you the best advice and see you through
your injury. This blog is for educational purposes only. This is
not legal advice. There is no substitute for competent legal advice tailored to
your specific circumstance. Call us at (877) 212-6907 and see how
our skilled attorneys can assist you or your organization.
By Jonathan Drake Char, Esq. Jonathan Char is an Associate Attorney in our Workers' Compensation Department at Mastagni Holstedt, A.P.C. Jonathan's frank, full, and direct approach in litigation allows for an efficient, effective, and economic resolution of work-related injuries for all laborers including state and local public safety employees. He has been recognized as a Top Lawyer in Sacramento Magazine and a Rising Star Honoree with Super Lawyers Northern California. His aspiration to win demonstrates his commitment to our clients, and we are proud to have him as part of our team.
