California Tackles Post-Traumatic Stress Injury

Seth Merrick
Partner
Rains Lucia Stern St. Phalle & Silver, PC

In September, the California Legislature unanimously passed Senate Bill 542, which was promptly signed by Governor Gavin Newsom. SB 542 contains a presumption for first responders who have developed post-traumatic stress disorder (PTSD), also known as post-traumatic stress injury (PTSI), as a result of their jobs.

Presumptions for First Responders

Workers’ compensation presumptions are a term of art that would take far more time and space than we have here to fully explain. In general, the more well-known presumptions for law enforcement (e.g., cancer, heart and lower back) were created to recognize that these conditions occur repeatedly and all too often as a result of the danger and hazardous exposure officers routinely face. Furthermore, because the occurrence of these injuries is disproportionately high among law enforcement compared to other members of the workforce, the Legislature has adopted these presumptions to encourage the filing of claims and put into place guidelines to ensure that they are accepted as quickly as possible.

Presumption for PTSI

Labor Code Section 3212.15, which recently took effect on January 1, creates a presumption for PTSI that has developed or manifested while working as a first responder. The presumption provides that the PTSI shall be presumed to arise out of and in the course of their employment. Those qualifying shall be awarded full compensation for their injury, including medical care and disability indemnity.

Not only is PTSI far more prevalent than most officers would like to admit, it has wide-ranging effects on both the personal and professional lives of those who suffer from the disorder. Outside of work, PTSI sufferers often struggle with alcoholism, substance abuse, depression, anxiety and other challenges that hinder their ability to function and maintain relationships with those they love. At work, PTSI can manifest in a variety of ways, ranging from difficulty focusing or following orders to over/underreacting in a situation where someone’s health and safety are in the balance. Tragically, these symptoms have all too often led to officers taking their own lives.

Furthermore, the causal connection between work as a law enforcement officer and PTSI is often a far easier connection to make than most cases of cancer or heart-related illness.

However, because of the stigma surrounding PTSI in law enforcement, PTSI goes untreated and claims go unfiled more often than not, leading to more severe injuries and catastrophic consequences than there would otherwise exist. 

SB 542 and Labor Code Section 3212.15

Similar to the other presumptions, SB 542 and Labor Code Section 3212.15 seek to recognize the prevalence of PTSI in first responders and take steps to ensure that PTSI claims are filed and accepted with as little opposition as possible and treatment is provided in a timely fashion. Beyond the practical effect of not having the stress of your claim denied and benefits withheld, getting more treatment earlier should also have the desired effect of a better result from the medical treatment you receive as well as a more complete healing process. This will no doubt help people live fuller lives and hopefully extend their careers.

SB 542 makes clear that the intent of the presumption is to provide a direct counter to the stigma associated with PTSI that has previously impeded claims being filed and treatment being sought. Section 1 of the bill is a tribute to the difficulties of the law enforcement profession, going step by step in recognition of the sacrifices law enforcement officers make on a daily basis.

It specifically recognizes that law enforcement officers face “uniquely dangerous risks… while placing their lives on the line every day to protect the communities they serve.”

It recognizes that the inescapable risk of harm and the constant exposure to tragic and disturbing incidents make law enforcement officers “uniquely susceptible to the emotional and behavioral impacts of job-related stressors” that “become overwhelming and manifest in post-traumatic stress.”

And, in closing, Section 1 makes no qualms about the goals behind this presumption, stating that it “is imperative for society to recognize occupational injuries related to post-traumatic stress can be severe, and to encourage peace officers… to promptly seek diagnosis and treatment without stigma. This includes recognizing that severe psychological injury as a result of trauma is not ‘disordered,’ but is a normal and natural human response to trauma, the negative effects of which can be ameliorated through diagnosis and effective treatment.”

By recognizing the inherent dangers of law enforcement, the ongoing exposures and the expectation that PTSI will result from their work, SB 542 makes it clear that there is both the hope and expectation that officers will not only recognize they have PTSI but have the confidence to file their claims and get the help they deserve.

Concerns and Questions

Given that the presumption is only set to be in place for five years (January 1, 2020, through January 1, 2025), this is a short time to fully address the extensive questions and concerns that will no doubt be brought up and litigated.

This, like other presumptions before it, will certainly be followed by challenges from both employers seeking to contest the extent of the protections and injured workers seeking to extend or clarify them. The end result will be that while there will be a presumption in name, it may take some time to hash it out and establish parameters for rebutting the presumption or establishing when it should apply. This will lead to uncertainty and lessen the positive effect that the presumption itself may have.

Taken as a whole, however, this must be seen as an exceedingly positive step toward supporting law enforcement and tearing down the stigma and bureaucratic hurdles that have for so long presented a barrier to our first responders getting the support and help they so deserve. The next steps for us involved in law enforcement are to ensure that this effort is not wasted and that we work to make sure that those we work with take the necessary actions to protect their careers, their families and their own health and well-being.

About the Author

Seth Merrick is a partner at Rains Lucia Stern St. Phalle & Silver, PC, where he leads the workers’ compensation team in the firm’s Injury Resource and Litigation Group. Merrick specializes in representing California’s injured peace officers and first responders, as well as both private- and public-sector union employees.

Capitol Beat – 2019 Wrap-Up

Aaron Read and Randy Perry
Legislative Advocates
Aaron Read & Associates, LLC

On September 13, the Legislature adjourned the first half of the 2019–2020 session. Governor Newsom had until midnight on October 13 to sign or veto the multitude of bills that were sent to him. If he did not take action on a bill, it automatically became law without his signature.

This year, 3,033 bills were introduced, of which 1,169 have been chaptered (signed by the governor) and 172 were vetoed. The remaining 1,692 bills are either inactive, dead, made into two-year bills or are resolutions that, by law, do not have to go to the governor. If a bill was made into a two-year bill, it means the measure is taken out of consideration during the first year of a regular session with the intent of taking it up again during the second year.

PORAC monitored over 250 bills this year and took a position on nearly 100, with three sponsored bills, two co-sponsored bills, 13 active support bills, eight active oppose bills, 16 oppose bills and 54 support bills.

This legislative year has proved to be one of the most challenging in the history of PORAC. SB 230 by Senator Caballero and AB 392 by Assemblymember Weber were our top priorities as we worked to ensure they put the safety of our members and our communities first. As a result of the work put in by PORAC leadership and the involvement of legislative leadership, informed and thoughtful amendments were made to SB 230 and AB 392 that created a unified solution.

Our job did not stop at use of force. PORAC was on the front lines of fighting many other bills that would negatively impact the daily lives of our members. We are happy to report that PORAC successfully stopped significant bills from reaching the governor this year. Below are a few that PORAC either opposed or actively opposed, all of which have been made into two-year bills that will be eligible in January.

AB 516 by Assemblymember David Chiu (D-San Francisco)

AB 516 would allow drivers to park vehicles in excess of 72 hours anywhere in the state without repercussions. Storage of those vehicles would take up parking spaces for paying customers and would impact retail and restaurant activity in downtown areas. Sales receipts would decline, as would property values. That would result in fewer tax dollars to both the city and the state that could be used to provide meaningful social services for the very people the legislation attempts to assist.

AB 516 unfairly treats those who comply with laws regarding vehicle registration and parking of vehicles. This proposed legislation would give the same rights to people who flout the law as those who obey the laws and register their vehicles in a timely fashion. If a vehicle’s owner cannot afford to pay their vehicle registration, then perhaps a more equitable solution would be to allow them to enter into a payment plan with the DMV that would give them a conditional vehicle registration.

AB 516 may be a well-intentioned bill that attempts to address the financial impacts of some categories of towing, but it actually creates unwarranted incentives for lawbreakers that will result in negative impacts on the broader community.

AB 1185 by Assemblymember Kevin McCarty (D-Sacramento)

This bill would authorize a county to establish a sheriff oversight board, either by the action of the board of supervisors or through a vote of county residents. It would authorize a sheriff oversight board to issue a subpoena or subpoena duces tecum when deemed necessary to investigate a matter within the jurisdiction of the board. Finally, it would authorize a county to establish an office of the inspector general to assist the board with its supervisorial duties.

PORAC believes this bill is unnecessary because many jurisdictions already have civilian oversight over the office of the sheriff without the need for this measure. In addition, our state sheriffs are already overseen or monitored in some way by the California Department of Justice, Board of State and Community Corrections, and county grand juries. Furthermore, this bill will put unnecessary pressure on county boards of supervisors to create an oversight system even if they feel one is not warranted.

AB 1555 by Assemblymember Todd Gloria (D-San Diego)

This bill would require any law enforcement agency that operates encrypted police radio communications to provide access to the encrypted communications to a duly authorized representative of any news service, newspaper, or radio or television station or network, upon request. By imposing new duties on local law enforcement agencies, the bill would impose a state-mandated local program.

Encrypted communication is vital for surveillance, confidential informants, undercover operations, tactical communications and more. Allowing the media and public access to encrypted channels could jeopardize investigations as well as the safety of the public and our officers. PORAC recommends that this bill be amended to create a public safety/media protocol for sharing information so that the media and public get the information they need to report on incidents without jeopardizing investigations, while also allowing for privacy of all people law enforcement comes in contact with.

ACA 12 by Assemblymember Marc Levine (D-San Francisco)

This measure would amend the California Constitution to prohibit the death penalty from being imposed as a punishment for any violation of law. In 2016, California citizens voted “no” on Prop 62 to repeal the death penalty and “yes” on Prop 66 to keep the death penalty, while making some necessary fixes. Those fixes include ways to save California taxpayers millions of dollars every year, assure due process protections for those sentenced to death and promote justice for murder victims and their families. ACA 12 undermines the public’s 2016 vote.

PORAC believes the most egregious crimes deserve the worst punishment. At some point, we have to say that we will not house, clothe and feed those who have murdered, raped and tortured.

As always, please do not hesitate to contact the team at Aaron Read & Associates at (916) 448-3444 if you have any legislative questions or concerns.

Capitol Beat – Legislative Issues on PORAC’s Radar

Aaron Read and Randy Perry
Legislative Advocates
Aaron Read & Associates, LLC

Since Assembly Bill 931 by Assemblymember Shirley Weber (D–San Diego) was first amended to create a new “necessary” standard for the use of deadly force in April 2018, PORAC and the law enforcement community have come together to proactively address the issue in California. The effort this legislative session has included actively opposing AB 392 (Weber’s resurrected AB 931) and drafting and sponsoring SB 230 by Senator Ana Caballero (D–Salinas). This has been a highly complex and dynamic process that has involved numerous meetings with the governor’s office, Senate Pro Tem Toni Atkins, Senator Caballero and many other legislators, as well as meetings with the author and sponsors of AB 392, Weber and the American Civil Liberties Union (ACLU). In addition, PORAC has enlisted the guidance of use-of-force experts, lawyers and stakeholders from around the state to develop SB 230, our comprehensive legislation that would minimize use of deadly force in California. 

As a result of the work put in by PORAC leadership and the involvement of legislative leadership, informed and thoughtful amendments were made to both SB 230 and AB 392 that created a unified solution. AB 392 now strengthens the state’s current standard for authorizing use of force without the “necessary” standard, as defined in the original version of the bill. The necessary standard would have eliminated an officer’s right to self-defense by requiring them to exhaust all other alternatives before using deadly force. Due to these amendments, all law enforcement removed their opposition to AB 392 and remain neutral on the bill. SB 230 provides officers with the tools and training they need to implement the updated legal standard put forth by AB 392, including de-escalation tactics, interacting with vulnerable populations and alternatives to use of deadly force. This bill is unlike any legislation introduced in the nation, and PORAC is proud to pave the way in the effort to protect our communities and our officers as they uphold their commitment to serve and protect.

On May 28, SB 230 passed unanimously on the Senate floor (38–0). There were two vacancies in the 40-member Senate at the time. Senators Jim Nielsen, Bob Archuleta, Holly Mitchell and Bob Hertzberg spoke in support of the bill. Both bills are now set to be heard in the opposite house. We feel confident that SB 230 is a positive step toward building greater trust between our officers and the communities we serve.

Battle Over Death Penalty Continues

Every day, the team at Aaron Read & Associates tracks and reviews hundreds of bills that have a direct and significant impact on the way our members do their jobs. Although a solution has been reached with AB 392 and SB 230, our work is not over. Recently, we brought Assembly Constitutional Amendment (ACA) 12, authored by Assemblymember Marc Levine (D–Marin County), to PORAC’s Executive Committee. This measure would amend the California Constitution to prohibit the death penalty from being imposed as a punishment for any violation of law. The disagreement on the death penalty is not new; however, PORAC believes the most egregious crimes deserve the worst punishment. At some point, we have to say that we will not house, clothe or feed those who have murdered, raped or tortured. In 2016, California citizens voted to keep the death penalty, while making some necessary “fixes” to save California taxpayers millions of dollars per year, assure due process protections for those sentenced to death and promote justice for murder victims and their families. PORAC played an integral role in the passing of this initiative. ACA 12 undermines the public’s 2016 vote. PORAC is actively opposed to this measure.

Senate District 1 Special Election

On June 4, Senate District 1 held a special election to fill a vacant seat. The candidates running were Assemblymembers Brian Dahle and Kevin Kiley. Both candidates are highly qualified and respected by law enforcement; however, PORAC voted to endorse the senior legislator, Dahle, who has been a consistent and loyal supporter of our law enforcement family for over five years. PORAC teamed up with the California Association of Highway Patrolmen (CAHP) and CAL FIRE Local 2881 to develop a positive radio campaign for Dahle that aired throughout the district. Dahle defeated Kiley 53% to 47%. The newly-elected senator has personally reached out to thank PORAC for its support in his successful election.

As always, please do not hesitate to contact the team at Aaron Read & Associates if you have any legislative questions or concerns at (916) 448-3444 or email Aaron Read (aread@aaronread.com), Randy Perry (rperry@aaronread.com) or Michele Cervone (mcervone@aaronread.com). We are proud to be a part of the PORAC family.