A Cerebral Analysis Of Post-Traumatic Stress Disorder Under The Virginia Workers’ Compensation Act

Recently, we have seen an uptick in post-traumatic stress disorder (“PTSD”) claims from law enforcement officers and firefighters as Virginia Code §65.2-107 gains more awareness. The statute was enacted in 2020. It is an important issue for an adjuster to be aware of as we will likely see more cases come through the pipeline over time.

Prior to this statute, a claimant had to show that PTSD resulted from an injury by accident caused by a physical injury or sudden shock or fright. Hess v. Va. State Police, 68 Va. App. 190, 806 S.E. 2d 413 (2017). In the alternative, a claimant could prove compensability by proving an occupational disease with the heightened burden of proof – clear and convincing evidence. Fairfax County Fire & Rescue Dep’t v. Mottram, 263 Va. 365, 559 S.E. 2d 698 (2002).

However, on July 1, 2020, the Virginia General Assembly passed §65.2-107 which has relaxed the burden for law enforcement officers and firefighters to prove a compensable PTSD claim. Recently, the Full Commission issued an Opinion pertaining to PTSD in Bean v. City of Chesapeake Virginia, JCN No. VA00001886662 (2022) which interprets §65.2-107. This is one of just a few opinions that have addressed this new statute. In Bean, the claimant was a police officer who sustained a compensable gunshot wound to his right hand. The claimant suffered from PTSD as a result of the accident. The issue in the case was whether §65.2-107 limited the claimant’s award of medical benefits for PTSD to only fifty-two weeks. Essentially, the Deputy Commissioner held that the benefits the claimant could receive for PTSD was exclusively under §65.2-107 as opposed to benefits under 65.2-6031, 65.2-5002, and 65.2-5023.

Under §65.2-107, a qualifying event is an incident or exposure occurring in the line of duty on or after July 1, 2020:

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

Virginia Ann. Code §65.2-107(A).

Once a qualifying event is established, PTSD incurred by a law enforcement officer or firefighter is compensable if:

  1. A mental health professional examines a law enforcement officer…and diagnoses the law enforcement officer…as suffering from PTSD as a result of the qualifying event;
  2. The PTSD resulted from the law enforcement officer… acting in the line of duty;
  3. The law enforcement officer undergoing a qualifying event was a substantial factor in causing his PTSD;
  4. Such qualifying event and not another event or source of stress was the primary cause of the PTSD; and
  5. PTSD did not result from any disciplinary action, work evaluation, job transfer, layoff, demotion, promotion, termination, retirement, or similar action of the…firefighter.

Virginia Ann. Code §65.2-107(B).

Workers’ compensation benefits for any law-enforcement officer or firefighter payable pursuant to this section shall (i) include any combination of medical treatment prescribed by a board-certified psychiatrist or a licensed psychologist, temporary total incapacity benefits under §65.2-500, and temporary partial incapacity benefits under §65.2-502 and (ii) be provided for a maximum of 52 weeks from the date of diagnosis.

Virginia Ann. Code. §65.2-107(C).

Essentially, the claimant asserted that “§65.2-107 was not the sole remedy for a police officer seeking medical benefits and that a claimant can continue to seek a lifetime medical benefits award for PTSD pursuant to §65.2-603.” The claimant also averred that “the Virginia legislature could not have intended to create a result whereby law enforcement officers would be in a worse position than other injured workers and that the legislature’s intent was to provide an additional avenue or recovery for these categories of first responders, not strip away benefits.”

Notwithstanding, the Full Commission affirmed that while the 52-week period of medical benefits was lesser than medical benefits afforded under §65.2-603, the Commission was bound by the statutory construction by the General Assembly under §65.2-107. Therefore, the claimant was awarded with PTSD benefits under §65.2-107 rather than §65.2-603, §65.2-500, and §65.2-502.

The Full Commission offers guidance on how to analyze a PTSD claim. A PTSD claim brought by a law enforcement officer and firefighter that establishes a qualifying event after July 1, 2020, will come under §65.2-107. The reason this is significant is because §65.2-107 caps the claimant’s entitlement to indemnity benefits and medical benefits to 52 weeks. In other words, the claimant has no remedy except the relief specifically written under this statute. However, if the claimant is not a law enforcement officer or firefighter and/or the qualifying event is prior to July 1, 2020, §65.2-107 will not apply and it will fall under §65.2-603, §65.2-500, and §65.2-502. This benefits the claimant as the eligibility of indemnity benefits is up to 500 weeks and the medical benefits are awarded for lifetime that are reasonable, necessary, and causally related.

The statute presents an interesting circumstance. §65.2-107 limits the medical and compensation benefits a qualifying claimant may receive for PTSD in exchange for a relaxed evidentiary burden. However, §65.2-603, §65.2-500, and §65.2-502 offer greater benefits for a claimant which comes with a high evidentiary burden that will make it arduous for the claimant. It appears that the General Assembly was attempting a balancing act to benefit law enforcement officers and firefighters while trying to lessen the exposure for the employer and carrier.

  1. 65.2-603 states that “as long as necessary, the employer shall furnish or cause to be furnished, free of charge to the injured employee, a physician chosen by the injured employee from a panel…selected by the employer and such other necessary medical attention.
  2. 65.2-500 addresses compensation for total incapacity up to 500 weeks.
  3. 65.2-502 addresses compensation for partial incapacity up to 500 weeks.

Should you have any questions about the issues discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.

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