Managing the Ptsd Presumption

• Jurisdiction: California,United States
• Author: Kia Myers Holsey, Esq.
• Publication year: 2020
• Citation: Vol. 33 No. 2

Managing the PTSD Presumption

Kia Myers Holsey, Esq.

Oakland, California

Governor Newsom signed into law SB 542, which took effect on January 1, 2020. It creates a strong presumption of post-traumatic stress disorder (PTSD) injury for every police officer, deputy sheriff, and firefighter in California. The law adds section 3212.15 to the Labor Code. This article addresses the essential features of that law and provides various material considerations for the practitioner when confronted with an allegation of presumed PTSD.

Who Is Covered by Labor Code Section 3212.15?

Labor Code section 3212.15 covers active firefighters, whether volunteers, partly paid, or fully paid. It also covers:

Peace officers, as defined in Labor Code section 830.1, subdivisions (a), (b), and (c) of Section 830.2, Section 830.32, subdivisions (a) and (b) of Section 830.37, and Sections 830.5 and 830.55 of the Penal Code, who are primarily engaged in active law enforcement activities.

The Six-Month Rule

Relevant employees 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 exception largely swallows up the six-month limitation.

What Does Labor Code Section 3212.15 Cover?

The injury Labor Code section covers:

includes "post-traumatic stress disorder," as diagnosed according to the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association and that develops or manifests itself during a period in which any safety officer is in the service of the department or unit.

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Claim Delay and Investigation

Upon receiving a claim for PTSD, a claims adjuster and/or attorney may consider a variety of investigation tools to evaluate the claim. These may be essential, considering that the presumption can be contested. Specifically:

This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with the presumption.

Investigation Considerations

These are the types of investigation tools that may be available to review the PTSD claims:

• Claimant contact

• Witness statements

• Personnel records (Labor Code section 3212.15 seems to leave in place the "good-faith personnel" defenses to psych claims found in Labor Code section 3208.3.)

• Employee Assistance Program records

• Recorded statements and depositions

• Special releases for psych records

• Labor Code section 3209.3(c), which states:

When treatment or evaluation for an injury is provided by a psychologist, provision shall be made for

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