PTSD Claims: A Guide for Rebutting and Defending Against this New Presumption
At the 2022 PARMA Annual Conference, a panel discussed post-traumatic stress disorder (PTSD) claims for public entity employees. Speakers included:
- Dr Ron Heredia – Westwood Evaluation and Treatment Center
- Vicki Lindquist – Laughlin, Falbo, Levy & Moresi LLP
- Dr. Tyrone Spears – City of Los Angeles
Under California law, a “violent act” causing a mental injury is compensable if it is considered “substantial”. The courts ruled this accounts for roughly 30% of the mental injury causes, which is a very low threshold. California also has a PTSD presumption statute for first responders in California meaning claims for PTSD are presumed work-related unless it can be proven otherwise. The presumption lasts three months beyond the last date of employment for each year of service for up to 60 months after the end of employment.
Public entities are seeing a multitude of claims since the PTSD presumption was enacted in January 2020. Most of the claims are from firefighters, which could be due to police officers losing their ability to carry a weapon if they file a mental health claim. Some public entity employers who imposed a vaccine mandate on their firefighters and police officers saw a spike in PTSD claims. There is also a trend in PTSD presumption claims filed at a career end, as workers look to supplement their retirement income with a workers’ compensation claim.
When reviewing medical evidence on a PTSD claim, there must first be an understanding of the basis of the diagnosis. Under California law, the diagnosis has to follow the Diagnostic and Statistical Manual of Mental Disorders (DSM) guidelines for PTSD, which is a widely accepted publication. However, there are multiple versions of this DSM guideline, and version 4 and version 5 (current) have significant differences. According to the guidelines, you cannot have PTSD unless you are exposed to actual or threatened death, serious injury or sexual violence.
Using FIDOC to Record Substantial Medical Evidence
For a medical report to include all substantial medical evidence, it should capture certain basic information:
- Intensity of complaints
- Duration. How long does it last when it occurs?
- Onset. When did these feeling start?
- Course over time. Has it gotten better or worse over time?
The key to rebutting the presumption is dissecting the medical reports, focusing on certain areas:
- Incomplete symptoms or complaints (FIDOC)
- Mental status examination flaws. What did the doctor observe in their examination?
- Psychological testing shortcomings. The Minnesota Multiphasic Personality Inventory (MMPI) should be administered, as it is the gold standard of this type of testing. It can detect whether a person is being truthful and also their diagnosis.
- Missing medical record data
- Attack the diagnosis
Apportionment is a viable defense to the PTSD presumption, so there may be non-industrial factors contributing to the PTSD. You may also be able to apportion between multiple events that should be separate and distinct injuries versus a cumulative injury.