From: PORAC
By: Seth Merrick
In September, the California Legislature unanimously passed Senate Bill 542, which was promptly signed by Governor Gavin Newsom. SB 542 contains a presumption for first responders who have developed post-traumatic stress disorder (PTSD), also known as post-traumatic stress injury (PTSI), as a result of their jobs.
Presumptions for First Responders
Workers’ compensation presumptions are a term of art that would take far more time and space than we have here to fully explain. In general, the more well-known presumptions for law enforcement (e.g., cancer, heart and lower back) were created to recognize that these conditions occur repeatedly and all too often as a result of the danger and hazardous exposure officers routinely face. Furthermore, because the occurrence of these injuries is disproportionately high among law enforcement compared to other members of the workforce, the Legislature has adopted these presumptions to encourage the filing of claims and put into place guidelines to ensure that they are accepted as quickly as possible.
Presumptions for PTSI
Labor Code Section 3212.15, which recently took effect on January 1, creates a presumption for PTSI that has developed or manifested while working as a first responder. The presumption provides that the PTSI shall be presumed to arise out of and in the course of their employment. Those qualifying shall be awarded full compensation for their injury, including medical care and disability indemnity.
Not only is PTSI far more prevalent than most officers would like to admit, it has wide-ranging effects on both the personal and professional lives of those who suffer from the disorder. Outside of work, PTSI sufferers often struggle with alcoholism, substance abuse, depression, anxiety and other challenges that hinder their ability to function and maintain relationships with those they love. At work, PTSI can manifest in a variety of ways, ranging from difficulty focusing or following orders to over/underreacting in a situation where someone’s health and safety are in the balance. Tragically, these symptoms have all too often led to officers taking their own lives.
Furthermore, the causal connection between work as a law enforcement officer and PTSI is often a far easier connection to make than most cases of cancer or heart-related illness.
However, because of the stigma surrounding PTSI in law enforcement, PTSI goes untreated and claims go unfiled more often than not, leading to more severe injuries and catastrophic consequences than there would otherwise exist.
SB 542 and Labor Code Section 3212.15
Similar to the other presumptions, SB 542 and Labor Code Section 3212.15 seek to recognize the prevalence of PTSI in first responders and take steps to ensure that PTSI claims are filed and accepted with as little opposition as possible and treatment is provided in a timely fashion. Beyond the practical effect of not having the stress of your claim denied and benefits withheld, getting more treatment earlier should also have the desired effect of a better result from the medical treatment you receive as well as a more complete healing process. This will no doubt help people live fuller lives and hopefully extend their careers.
SB 542 makes clear that the intent of the presumption is to provide a direct counter to the stigma associated with PTSI that has previously impeded claims being filed and treatment being sought. Section 1 of the bill is a tribute to the difficulties of the law enforcement profession, going step by step in recognition of the sacrifices law enforcement officers make on a daily basis.
It specifically recognizes that law enforcement officers face “uniquely dangerous risks… while placing their lives on the line every day to protect the communities they serve.”
It recognizes that the inescapable risk of harm and the constant exposure to tragic and disturbing incidents make law enforcement officers “uniquely susceptible to the emotional and behavioral impacts of job-related stressors” that “become overwhelming and manifest in post-traumatic stress.”
And, in closing, Section 1 makes no qualms about the goals behind this presumption, stating that it “is imperative for society to recognize occupational injuries related to post-traumatic stress can be severe, and to encourage peace officers… 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.”
By recognizing the inherent dangers of law enforcement, the ongoing exposures and the expectation that PTSI will result from their work, SB 542 makes it clear that there is both the hope and expectation that officers will not only recognize they have PTSI but have the confidence to file their claims and get the help they deserve.
Concerns and Questions
Given that the presumption is only set to be in place for five years (January 1, 2020, through January 1, 2025), this is a short time to fully address the extensive questions and concerns that will no doubt be brought up and litigated.
This, like other presumptions before it, will certainly be followed by challenges from both employers seeking to contest the extent of the protections and injured workers seeking to extend or clarify them. The end result will be that while there will be a presumption in name, it may take some time to hash it out and establish parameters for rebutting the presumption or establishing when it should apply. This will lead to uncertainty and lessen the positive effect that the presumption itself may have.
Taken as a whole, however, this must be seen as an exceedingly positive step toward supporting law enforcement and tearing down the stigma and bureaucratic hurdles that have for so long presented a barrier to our first responders getting the support and help they so deserve. The next steps for us involved in law enforcement are to ensure that this effort is not wasted and that we work to make sure that those we work with take the necessary actions to protect their careers, their families and their own health and well-being.
About the Author:
Seth Merrick is a partner at Rains Lucia Stern St. Phalle & Silver, PC, where he leads the workers’ compensation team in the firm’s Injury Resource and Litigation Group. Merrick specializes in representing California’s injured peace officers and first responders, as well as both private- and public-sector union employees.
