On July 1, 2020, the Virginia Legislature, recognizing the terrible toll that exposure to extreme situations and traumatic events faced by law-enforcement officers and firefighters can take on those individuals, passed a special statute granting limited workers compensation benefits for workers in those positions who suffer Post Traumatic Stress Disorder (PTSD) as a result of their exposure to such situations.
But this law is unfortunately a mixed bag, which makes it much easier to get benefits, but severely limits the extent of those same benefits for all Virginia Police and Firefighters. And that is the subject of this article.
In general, before this law was passed, proving PTSD from exposure to trauma on the job, without physical injury, was not so easy.
Here’s the typical scenario. Let’s say you’re doing your job and in the midst of performing your work, you come across something so shocking, so sickening, so frightening, that it causes you to have ongoing nightmares, insomnia, become essentially frozen, full of anxiety, and unable to leave your home and literally unable to work or pretty much do anything else.
I’m not talking about a mean boss or harassment from fellow employees or anything like that.
I’m talking about mere exposure to something extremely shocking and frightening on the job where you yourself are not physically injured.
I’ll give you a real- life example of a case we had some years ago. Our client worked at an assisted living facility and she was called on the phone by one of her residents to her room for assistance. She arrived at the room, only to find the resident had just committed suicide by blowing her brains out. The gun was still smoking in the resident’s hand when she arrived.
The psychological symptoms which occur as a result of exposure to such severe trauma, and others like them, are called Post Traumatic Stress Disorder or PTSD, sometimes also known as Post Traumatic Stress Syndrome.
And in the case I just mentioned, although we had to go to Hearing, it was found that our client had suffered what is known as a “sudden shock or fright” as a result of seeing this shocking scene and could recover benefits under workers compensation.
But what if it’s your job to come across things like that all time, such as if you are a firefighter or police officer?
First of all, when you have a situation where you do not have a physical injury, but “exposure” to anything at work, especially if it’s more than one exposure, such as the horrific scenes encountered by many first responders, like police officers and firefighters, that is considered not an injury claim, but an occupational disease claim. And before this new law passed, unless you satisfied a pretty difficult standard of proof, it’s hard, although not impossible, to show that PTSD or other psychological injuries were suffered as a result of your exposure to difficult scenarios at work over time and is therefore an occupational disease.
And if it’s a one-time event, many times, the Commission would knock the claim out as not being an event that was of “sudden shock or fright,” because it’s the job of police officers and firefighters to see such things all the time, so it can’t be categorized as a shock or fright for them.
But as I previously indicated, on July 1, 2020, the Virginia Legislature, recognizing the terrible toll that exposure to extreme situations and traumatic events faced by law-enforcement officers and firefighters can take on those individuals passed a special statute granting limited workers compensation benefits for workers in those positions who suffer Post Traumatic Stress Syndrome (PTSD) as a result of their exposure to such situations.
Details of the New Law for Police and Firefighters in Virginia Suffering from PTSD
This new law can be found in the Virginia Code Section 65.2-107, which specifically provides for workers compensation benefits for Virginia Police Officers and Firefighters who are diagnosed with PTSD, as a result of a traumatic event they encountered in their duties.
The statute, which came into effect on July 1, 2020, applies to any event which occurs after that date, and provides medical treatment for the PTSD, and, if unable to work, or work in a lower capacity, weekly workers compensation benefits for up to 52 weeks after the date of diagnosis of PTSD.
The treatment for the PTSD must be prescribed by a board-certified psychiatrist or licensed psychologist.
There must also be a “qualifying event” that formed the basis of the claim for benefits, and the claim for benefits must be filed within four years of the qualifying event. This appears to be a recognition that many times, the full negative psychiatric impact of the experience of a traumatic event can take some time to manifest, because normally, a workers compensation claim must be filed within 2 years of the date of an accident.
What do they mean by “Qualifying event?” The new statute lays it out and it means an incident or exposure occurring in the line of duty which fits certain criteria mentioned in the statute such as an event on or after July 1, 2020 that results in:
- Serious bodily injury to any person (so that’s not just the officer or firefighter, but anyone they witness get seriously injured), OR
- An incident involving a minor who has been injured, killed, abused, or exploited, OR
- An immediate threat to the life of the claimant or anyone else, (again, not just the officer or firefighter) OR
- An event involving mass casualties, OR
- Responding to crime scenes for investigation.
From this you see what the legislature did here is put a stop to the requirement of having to prove “sudden shock or fright,” because one could argue that many of these events should not be shocking or frightening for a police officer or firefighter. It appears that the legislature recognized that sometimes, no matter how tough you think you are, these situations can get to you pretty bad, even if it’s your job to come into contact with these situations on a regular and frequent basis.
In addition, the legislature simply came out and recognized PTSD as an occupational disease if you can show a qualifying event, and they clearly defined what that was, as we just enumerated.
In the case law before, officers and firefighters had to recite a litany of horrific things that they exclusively were exposed to at work over many years to qualify for occupational disease benefits for PTSD, and even then, it was not guaranteed that the Commissioner would Award benefits.
The Big Downside of the New Law for Police and Firefighters who are Severely Debilitated as a Result of PTSD in Virginia
Unfortunately, the Virginia Workers Compensation Commission has more recently stated in case law that the legislature passed this statute and specifically capped the medical and compensation benefits for qualifying officers and firefighters at 52 weeks from the date of diagnosis. In other words, no matter how bad the PTSD, even if you suffer permanent disability in your ability to work from the PTSD, and EVEN if your PTSD was connected with a physical injury, your benefits are limited to 52 weeks if you’re a cop or firefighter making a PTSD claim.
In the case law, the Full Commission said that “§ 65.2-107 limits the medical and compensation benefits a qualifying claimant may receive for post-traumatic stress disorder in exchange for a relaxed evidentiary burden.” This means that the upside is that the normal standards of proof for PTSD as an occupational disease are relaxed and much easier to prove. The statute is designed to provide an easier avenue for officers or firefighters who are exposed to traumatic events to obtain what essentially amounts to an extended, paid break and up to a year to treat and heal from their exposure to these events, without using up leave time or leave pay.
The downside, unfortunately, is that officers and firefighters who are suffering from PTSD are now excluded from any attempt to claim benefits beyond the 52 weeks unless and until they return to duty and suffer another “qualifying event,” in which case they would be limited to another 52-week period.
This means that generally, police officers and firefighters suffering from PTSD are now excluded from any final workers compensation settlement due to their exposure to trauma in the line of duty.
Is that fair? No, I don’t think it’s fair. And I think in the case law, even the Virginia Workers Compensation Commissioners in Richmond who decided that case which placed these limits on the recovery recognized that it didn’t sound fair. But they also said that their job is to interpret the law, not create it. And that is how they interpreted the law. 52 weeks is all you get.
Hopefully, the legislature will clarify that it was not their intent to exclude officers and firefighters from attempting to prove the more difficult occupational disease standards of proof for PTSD and obtain benefits under the other available occupational disease statutes beyond the 52-week cap imposed by Sec. 65.2-107 if their PTSD limits them beyond that time frame.
It is certainly clear that in some cases, the PTSD suffered by an officer or firefighter is so severe that the officer or firefighter will likely never be able to return to his or her duties, and in some cases, any work whatsoever.
For instance, I think even the prior caselaw before this statute was passed recognized that sometimes, even for a police officer or firefighter, witnessing certain events or scenes such as the aftermath of a mass shooting or the murder of a child is so traumatizing and outside the norm, that even for a police officer or firefighter, exposure to repeated events and the resulting PTSD is in fact, an occupational disease that can result in permanent disqualification from work and ongoing benefits for up to 500 weeks, and lifetime medical benefits like in a normal, severe and permanent injury Virginia Workers Compensation injury case. Such an Award of benefits, can, of course, often form the basis for a significant workers compensation settlement.
Unfortunately, the Virginia Workers Compensation Laws as they stand now no longer provide any avenue for recovery or settlement in such situations for cops or firefighters other than the 52-week limited recovery for both the comp checks and the medical.
We can only hope that the delegates and state senators in Richmond will seek to correct this issue soon and those officers or firefighters who suffer from long-term PTSD issues can once again have an avenue for recovery.
Everyone Else Still has Possibility of Obtaining Lifetime Benefits in a Long-Term, Serious Case of PTSD
Finally, just so we are clear, if one is not in either of these professions, you do not get to use the 52-week Statute, but you are also not bound by it. If you are suffering from PTSD from a work-related exposure or exposures, and you are not a Police Officer of Firefighter in Virginia, even though it is somewhat harder to prove, you may still have an avenue for a long-term recovery or settlement or an occupational disease claim for severe and permanent PTSD.
If you or a loved one are suffering from PTSD or other psychiatric disabilities due to a work injury or exposure to severe trauma at work in Virginia, please do not hesitate to contact us.
North Carolina and Virginia lawyer Joe Miller understands what steps employees must take to file a workers’ compensation claim if they are suffering from PTSD, proof is required, what benefits the worker or the family members can claim, and what defenses the insurance companies are likely to assert. At Joe Miller Law Ltd., our North Carolina and Virginia workers’ compensation lawyer has helped thousands of injured and ill employees obtain just recoveries including temporary and permanent disability benefits. To assert your rights to compensation if an employee is injured or a loved one dies while working, call attorney Joe Miller Law Ltd., at 888-667-8295 or use my online contact form to schedule a free consultation.
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