Legislative Update: New Standards for Police Officers and Firefighters Alleging PTSD
The Virginia General Assembly recently passed new legislation that will influence how police officers and firefighters will be able to recover workers’ compensation benefits for Post-Traumatic Stress Disorder (PTSD) in Virginia.
The new statute, Va. Code § 65.2-107, requires that insurance carriers cover treatment for PTSD developed by police officers and firefighters as a result of exposure to a “qualifying event” in the line of duty. For purposes of this statute, a “qualifying event” includes any incident or exposure:
- resulting in serious bodily injury or death to any person or persons;
- involving a minor who has been injured, killed, abused, or exploited;
- involving an immediate threat to his/her life or another person’s life;
- involving mass casualties; or
- responding to crime scenes for investigation.
The statute provides that the “qualifying event” must be a substantial factor in causing the PTSD, and that the diagnosed PTSD must not result from any termination, layoff, disciplinary action, work performance evaluation, job transfer, demotion, or retirement.
Further, the qualifying event must be the primary cause of the PTSD; the PTSD cannot come from another event or source of stress in one’s life. The police officer or firefighter alleging PTSD must also be evaluated and diagnosed by a mental health professional in order to be eligible for workers’ compensation benefits.
In essence, Va. Code § 65.2-107 allows police officers and firefighters alleging PTSD to sidestep the traditional doctrines of “compensable consequence” and “injury by accident” while seeking workers’ compensation benefits. However, the new statute also raises questions about how the Commission will handle PTSD cases resulting from cumulative trauma as contemplated by the traditional “occupational disease” analysis.
Traditionally, under the “compensable consequence” doctrine, the firefighter or police officer alleging PTSD could only prevail if he/she could show an actual physical (primary) injury. He/she would then have to show that the diagnosed PTSD flowed from that physical injury as a natural consequence. The issue there was essentially one of whether the medical evidence proved a causal connection between the primary injury and the subsequent occurrence of PTSD.
Under the “injury by accident” doctrine, the firefighter or police officer alleging PTSD could only prevail if the PTSD was causally related to a sudden shock or fright in the line of duty. Case law from the Virginia Court of Appeals showed that the “injury by accident” standard was tough to meet for first responders alleging PTSD.
For example, in Hess v. VA State Police, 68 Va. App. 190 (2017), the court denied compensation for PTSD to a 10-year veteran of the state police. The officer’s PTSD resulted from responding to a gruesome car accident. The court reasoned that the claimant’s presence at the accident as a state trooper was an “unfortunately frequent” occurrence which his training and experience should have prepared him for. Although the experience was traumatic, his condition was found not to be the result of an “unexpected” fright. Therefore, the officer was not entitled to benefits under that theory because the trauma was deemed objectively expected, and not particularly shocking for that person’s line of work. This has proved to be a tough precedent for first responders alleging PTSD to overcome.
Under Va. Code § 65.2-107, a police officer or firefighter alleging PTSD will no longer be required to show that he/she suffered an underlying physical (primary) injury triggering the PTSD under the “compensable consequence” doctrine. Nor will he/she have to show a sudden shock or an “unexpected fright” causing the PTSD under the stringent Hess “injury by accident” precedent.
Rather, under this new statute, the police officer or firefighter must only show that he/she was exposed to a “qualifying event” as described above, while acting in the line of duty; and that a mental health professional diagnosed him or her with PTSD as a result of the exposure to that “qualifying event.”
Traditionally, PTSD could also qualify as an “occupational disease” in Virginia when it resulted from “multiple stressful events” or “ongoing stress.” For example, Mottram v. Fairfax County Fire and Rescue involved a claimant who worked as a first responder for a fire department for 19 years. During that time, the claimant responded as a paramedic to approximately 10 calls per day, many of which included multi-victim motor vehicle accidents, burns, multi-family house fires with fatalities, and other events resulting in death and serious injury. The claimant was diagnosed with PTSD. The Court of Appeals of Virginia found that the claimant’s condition came from multiple stressful events, and that the Commission erred in refusing to consider the claimant’s PTSD as a compensable occupational disease.
It’s unclear whether the claimant in Mottram would still be entitled to benefits for his PTSD under the newly enacted § 65.2-107. The language of the new statute suggests that a singular “qualifying event” is required; rather than multiple stressful events or cumulative trauma. It remains to be seen how the courts will treat PTSD claimants who have multiple qualifying events over a long period of time, like the claimant in Mottram who experienced multiple stressful events in the line of duty for 19 years.
Courts will also have to determine on a case-by-case basis whether the alleged PTSD did not result from other stressors found in everyday life. PTSD can arise from a wide variety of contexts in any individual’s life. If the first responder has other documented stressors in his/her life, those additional stressors will make it that much tougher for him/her to satisfy the standard set forth in the newly enacted statute.
Lastly, it is important to note that this new statute does place limits on how long one may be able to receive workers’ compensation benefits for PTSD. Specifically, the statute provides that no medical payments, TTD, or TPD shall be awarded beyond four years from the date of the “qualifying event” that formed the basis for the claim.
Further, the new statute also places limits on the amount of benefits one can receive if he/she is also receiving other benefits such as Social Security Disability, Long Term Disability, Short Term Disability, and Virginia Retirement System (VRS) Work-Related Disability. Namely, the total amount of workers’ compensation benefits the claimant receives in addition to those other benefits shall not exceed the claimant’s pre-incident average weekly wage.
Va. Code § 65.2-107 went into effect July 1, 2020. We will continue to keep you updated as courts begin to interpret this newly enacted legislation. In the meantime, should there be any questions, please do not hesitate to contact our office at (804) 220-6113.
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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