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Governor Newsom signed into law SB 542 this week which creates a strong presumption of Post-Traumatic Stress Disorder (“PTSD”) injury for every Police Officer, Deputy Sheriff and Firefighter in California, starting on January 1, 2020.

First responders must be employed for at least six-months before the presumption applies, but there is an exception to that limitation if the PTSD is claimed to result from “a sudden and extraordinary employment condition.”  Because PTSD by its nature involves allegedly “traumatic” events, the 6- month limitation is largely swallowed by the exception.

The law will likely increase psyche Workers’ Compensation (WC) claims and costs for every police and fire department, but may also burden CalPERS and other public pension funds by affording safety officers easier access to industrial disability retirements (IDR). The costs and burdens that SB 542 will likely place on the public sector, the taxpayers and everyone counting on a public pension for retirement may be incalculable.

Agencies should first approach this coming “epidemic” with prevention.  Many police and fire departments already offer peer-support groups and wellness services to help first responders deal with any emotional issues that come from witnessing traumatic events on the job. AB 1116, also signed into law by Gov. Newsom, establishes standards for firefighter peer-support groups and a statewide network of such groups. Robust compliance with AB 1116 and existing employee assistance programs (EAP) may help prevent run-away PTSD claims.

However, even the most supportive and vigilant employer can face specious or fraudulent Workers’ Comp claims, especially where normal defenses are tossed-aside by statutory presumptions.

In those cases, there may be a few defenses still available for California public agencies and the taxpayers that fund them. First, SB 542 seems to leave in place the “good-faith personnel” defenses to psyche claims found in Labor Code Sec. 3208.3. The law may also allow apportionment of permanent disability to pre-existing factors, something that is barred under the heart and cancer presumptions.

Secondly, the law requires an actual diagnosis of PTSD, which probably needs to be supported by substantial medical evidence.  Generally, in psyche injury cases, any diagnosis should be supported by objective psychological testing, unbiased by a doctor’s subjective impressions. Vigorous scrutiny of medical reports and testing data is crucial in the defense of these presumptive injury claims.

RTGR Law will continue to carefully monitor developments in this arena and post updates here on our blog and on our LinkedIn page.  Be sure to follow us.

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