Since 1937 there have been presumptions that specific types of injuries to listed public safety employees are industrial. Starting in 1937 heart trouble suffered by certain firefighting employees has been presumed industrial. The categories of employees and the different diagnosis that qualify for presumptions have expanded since then.
One of the most recent presumptions added to the Labor Code relates to post-traumatic stress disorder (PTSD). This presumption was added by Senate Bill 542 which was signed by Governor Newsom on October 1, 2019. The presumption added Labor Code Section 3212.15 and applies to injuries on or after January 1, 2020. It is also a presumption that is set to expire, if not extended, on January 1, 2025.
As with all presumptions there are four main questions to ask in order to determine if it applies to a claim you are addressing.
To Whom Does the Presumption Apply?
Labor Code Section 3212(a) lists the categories of employees covered by this presumption. In general, this section applies to peace officers and firefighters. The presumption includes firefighters from specific types of fire departments, and it applies whether they are volunteer, partly paid, or fully paid. The peace officers it applies to are identified by what Penal Code section they are sworn under. Also, peace officers must be “primarily engaged in active law enforcement activities.”
To What Diagnosis Does the Presumption Apply?
In order for the presumption to apply, the employee must be diagnosed with “post-traumatic stress disorder” pursuant to the most recent version of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. At the time of this article, the most recent version is version five. This is commonly referred to as DSM-5, which was published in 2013. The DSM lists the criteria for diagnosing a specific condition. Psychiatrists and psychologists know how to apply the DSM and their reports should contain enough information to determine that this specific diagnosis is accurate.
When Does the Presumption Apply?
The presumption applies if the PTSD “develops or manifests” itself during a period when the employee is in service of the stated department or unit. Additionally, like several other presumptions there is an extension beyond the period of employment. With PTSD the presumption is extended by three months for every full year of service, up to a maximum of 60 months, past the date when the employee last worked in a covered capacity.
One other point about timing is that the presumption does not apply until the employee has been working in a listed position for six months. The code section also clarifies that this means six total months, not necessarily six continuous months in a row. This time limit does not apply if the PTSD resulted from a “sudden and extraordinary employment condition.”
What is Needed to Rebut the Presumption
Labor Code Section 3212.15(c)(2) states that this presumption is disputable and can be disputed by “other evidence.” This refers to evidence of non-industrial causes of the PTSD. This presumption does not contain a “non-attribution clause” and so the presumption can be rebutted by evidence of non-industrial causes of PTSD from both during and before the person became employed in a position covered by the presumption.
In cases involving PTSD be prepared to address potential circular logic. If you are relying on a non-industrial stressor such as a divorce, understand that the employee will potentially argue that the divorce was not the cause of the PTSD, but the PTSD symptoms led to the divorce. The only way to address this argument is with competent psychiatric or psychological opinions, from a medical-legal evaluator or a treating physician.
A possible fifth question relates to what benefits are potentially owed if the presumption applies and is not rebutted. Labor Code Section 3212.15(c)(1) indicates the applicant would be entitled to medical treatment, indemnity, and dependents are potentially entitled to death benefits.
It is important to note that injuries covered by the PTSD presumption are different than pure psychiatric injuries and they are different than psychiatric injuries that are caused by a physical injury. PTSD presumption cases differ from other psychiatric injuries in that the threshold for causation (usually predominant cause) does not apply. They differ from psychiatric injuries caused by physical injuries in that the employee is entitled to permanent disability in a PTSD presumption case.
In closing, keep in mind that just because you have shown the presumption does not apply, does not mean the employee cannot prove an industrial psychiatric injury without use of the presumption. If there is no diagnosis of PTSD the presumption does not apply, but the employee can still prove an industrial psychiatric injury within the requirements of Labor Code Section 3208.3. Do not stop defending the case just because you are able to prove the presumption is not applicable.
Schedule a Confidential Consultation With a Workers’ Compensation Defense Lawyer
At Yrulegui & Roberts, our California workers’ compensation defense attorneys provide reliable, solutions-focused representation. If you have questions about public safety employee presumptions, we are available to help. Contact our legal team now for a strictly private consultation. From our office locations in Bakersfield, Sacramento, and Fresno, we represent clients throughout the region, including San Luis Obispo, Santa Barbara, Oxnard, and Van Nuys.
