STRESS-RELATED INJURIES: AVOIDING THE NEVER-ENDING LITIGATION

California public safety officers are subject to a challenging and, at times, stressful environment. Peace officers are frequently exposed to situations likely to cause stress-related injuries, such as inmate assaults, in-custody deaths, or riots. However, what if the stress from the job is caused by other factors, such as supervisory conflict or an investigation? What are the standards for an injured officer to receive worker’s compensation benefits for a stress-related injury? This article will provide a guide for peace officers who have been exposed to stress-related injuries and advice for how to handle it.

Labor Code section 3208.3 provides that a member must generally establish that at least 51% of the events causing the stress-related injury must be “actual events of employment.” This means that the majority of the stressors causing the injury must be related to work. However, the standard is lowered in the case of an injury resulting from a violent act – in such a case, the member must establish that actual events of employment were a “substantial” cause of the stress-related injury. In other words, a member must establish that at least 35 to 40% of the events causing the stress-related injury resulting from a violent act must be actual events of employment.

Generally speaking, the applicable burden is met by most officers. However, all members must understand that once he or she files a stress-related injury claim, the employer will go on the offensive in an attempt to find any and all stressors not related to the job in an attempt to defeat the member’s claim. The member’s biggest hurdle is the employer’s “good faith personnel action” defense. The Labor Code provides a complete bar to stress injuries if a “substantial” cause (i.e., 35%-40%) of the stress arises from the employer’s nondiscriminatory good faith personnel action. The employer can try to rely on prior disciplinary actions, transfers, supervisory issues, or anything related to a “personnel action.” In public safety cases, this is their biggest angle and they will attempt to bar every claim under this statute. Employers will dig up prior write-ups, discipline, and other supervisory issues and try to pin at least 35% of the stressors on those actions. It is important to understand and expect this before filing a claim.

In the case of Rolda v. Pitney Bowes, the WCAB outlined the test employers must meet for the “good faith personnel action” defense to apply. The employer must show that the actual events of employment that caused the stress injury were, in fact, a good faith personnel action. Take, for example, an officer who is subject to an internal affairs investigation that results in discipline. The officer then alleges stress after the investigation and resulting discipline. The “good faith personnel action” defense would be used to bar this type of stress claim.

Under the Court’s analysis in County of San Bernardino, if the officer’s stress arises from sources such as staff or suspect assaults and threats, workload, or just the fact the officer works in a dangerous environment – sources not considered to be good faith personnel actions – the physiological manifestations, such as heart or GERD, would not be barred. It is important for an injured officer to provide his or her examining physicians a complete history of job stresses, and not just the supervisory conflict or stress from an investigation. If the on-the-job stress causes a physical injury and the job stress is not subject to the “good faith personnel action” defense, the injuries will likely be determined to be work related.

It is important to understand that worker’s compensation claims for stress are typically denied by the employer, unless the claim arises from a specific event like a suspect assault. These claims require the facts of the job stress to be fully developed, preferably prior to filing the claim form. The goal is to knock down the employer’s “good faith personnel action” defense. How do we create the evidence prior to filing the claim?

There are many resources available to public safety officers, but one of the most forgotten and underrated resources is your private health insurance. Using your private health insurance to see a provider keeps all of your information confidential. Additionally, it allows you to establish the timeline and causes of your stress injury without your employer fighting it. Once you have established treatment records documenting stressors from work that are not “personnel actions,” we can decide when the time is right to file the claim. Filing the claim before you have this record established is reckless and will lead to increased litigation with no benefits provided at the outset.

Support for stress-related injuries has gained traction with legislators in an attempt to provide benefits and treatment to first responders. There are currently two bills being considered regarding stress-related injuries. First, SB 542 seeks to create a presumption for “post-traumatic stress or mental health disorder” developing or manifesting during employment. This presumption would operate similar to the ‘heart’ presumption or any other presumption. This would be a significant step, but will not make any and all stress injuries compensable and immediately accepted. We expect that, as with the other presumptions, this will not stop employers from denying the claim at the outset and litigating the issue. This means that even if, at the end of the litigation, the member will receive benefits, he or she may not receive benefits at the outset. This will not alleviate the need to establish a treatment record prior to filing the claim to avoid significant litigation. Hopefully this bill will pass, but it should not change the analysis before filing a stress-related injury claim.

The second bill being considered is AB 1117. This bill would create a “peer support team” for first responders. Individuals who become certified by the peer support training course will be able to provide counseling and resources to members in need. However, one of the most important aspects of the bill is that the communications would be “confidential” and not subject to disclosure to the employer. Currently, if you have a conversation with a coworker, the employer can order your coworker to disclosure the contents and nature of your conversation. Under this bill, those communications would become confidential and not subject to disclosure. The intent behind this is for members to feel comfortable discussing these issues to the peer support team without fear of a fitness for duty or repercussion from the employer.

In the end, filing a stress-related injury claim is a complicated process and must be analyzed before filing the claim. There are many tracks that lead to a poor outcome and unless your timeline and evidence is solid, you will become embroiled in tumultuous litigation with no end in sight. Before filing these claims, you should consult with a professional to give yourself the best chance at success.

 

– Ryan Trotta, Esq. Adams, Ferrone & Ferrone