Recently, SB 542 was passed for which a legal presumption of injury is applicable for Post-Traumatic Stress Disorder for certain Firefighters and Peace Officers.
The presumption will become effective as of 1/1/2020, and will only remain in effect until 1/1/25.
This article will discuss Post-Traumatic Stress Disorder, the Presumption, and How It will be applied.
What is Post-Traumatic Stress Disorder?
“Post-traumatic stress disorder (PTSD) is a disorder that develops in some people who have experienced a shocking, scary, or dangerous event.
It is natural to feel afraid during and after a traumatic situation. Fear triggers many split-second changes in the body to help defend against danger or to avoid it. This “fight-or-flight” response is a typical reaction meant to protect a person from harm. Nearly everyone will experience a range of reactions after trauma, yet most people recover from initial symptoms naturally. Those who continue to experience problems may be diagnosed with PTSD. People who have PTSD may feel stressed or frightened, even when they are not in danger.” – National Institute of Mental Health
In the Statute, Labor Code Section 3212.15, in Section (b) it provides “[i]n the case of a person described in subdivision (a), the term “injury,” as used in this division, 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 and that develops or manifests itself during a period in which any member described in subdivision (a) is in the service of the department or unit.”
Who Does the Statute Apply To?
Labor Code Section 3212.15(a) indicates that it applies to the following Safety and Firefighting Units
“(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 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, subdivisions (a), (b), and (c) of Section 830.2, Section 830.32, subdivisions (a) and (b) of Section 830.37, and Sections 830.5 and 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.
How Does the Presumption Apply?
The presumption applies for current employees and is extended out based upon time of service. Though not in the statute, the anti-attribution clause may be of benefit to the Injured Worker in that apportionment may not apply. The presumption is disputable and may be controverted by other evidence. If it is not controverted, the appeal board is bound to find in accordance with the presumption.
The statute is unclear as to what can controvert the presumption. Could it be that there was a pre-existing diagnosis of Post-Traumatic Stress Disorder? Could it be that the PTSD was not a Predominant or Substantial Cause of Injury and that other portions of Psych which were non-industrial were in existence? Certainly, there will be litigation on this issue.
Most important, in order to qualify for the presumption, an individual will have to obtain a diagnosis of PTSD from a mental health professional. This will usually be a psychiatrist or psychologist. Note: just believing you have PTSD to obtain the presumption is not enough. You need to have a diagnosis from an appropriate specialist.
Are There Time Limits for the Application of the Presumption?
Yes. Labor Code Section 3212.15(c)(2) provides that “[t]his presumption shall be extended to a member following termination of service for a period of 3 calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity.
Also, there is a limitation for individuals who have worked less than six months. Labor Code Section 3212.15(d) provides that “Compensation shall not be paid pursuant to this section for a claim of injury unless the member has performed services for the department or unit for at least six months. The six months of employment need not be continuous. This subdivision does not apply if the injury is caused by a sudden and extraordinary employment condition.” Note: The lack of presumption does not mean that you may have a valid claim. If you do not fall within this presumptive statute, you may still be able to pursue a claim. Consultation with an Attorney is recommended.
What Benefits Are Available Because of This Presumption?
Labor Code Section 3212.15(c) provides “[f]or an injury that is diagnosed as specified in subdivision (b): (1) The compensation that is awarded shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by this division.
If the Presumption Does Not Apply, Does that Mean That I Do Not Have a Claim?
No. The presumption statute only establishes a presumption. It merely provides some evidentiary assistance to certain Law Enforcement and Safety Officers who qualify. If the presumption does not apply, you still may be able to pursue a claim without the presumption. Consultation with an attorney is recommended.
Is There a Time Limitation on this Statute?
Yes. The statute only applies to injuries on or after 1/1/2020, and will remain in effect only until 1/1/25.
Where Can I Get Legal Advice?
If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation.
They have been helping people in Central and Southern California deal with their worker’s compensation cases for 26 years. Contact us today for more information.
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(B) A fire department of the University of California and California State University.
(C) The Department of Forestry and Fire Protection.
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The statute is unclear as to what can controvert the presumption. Could it be that there was a pre-existing diagnosis of Post-Traumatic Stress Disorder? Could it be that the PTSD was not a Predominant or Substantial Cause of Injury and that other portions of Psych which were non-industrial were in existence? Certainly, there will be litigation on this issue.
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Also, there is a limitation for individuals who have worked less than six months. Labor Code Section 3212.15(d) provides that “Compensation shall not be paid pursuant to this section for a claim of injury unless the member has performed services for the department or unit for at least six months. The six months of employment need not be continuous. This subdivision does not apply if the injury is caused by a sudden and extraordinary employment condition.” Note: The lack of presumption does not mean that you may have a valid claim. If you do not fall within this presumptive statute, you may still be able to pursue a claim. Consultation with an Attorney is recommended.”
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Image: Jose Gil