Unfinished Business

By: Mark Webb

On September 30, the Commission on Health and Safety and Workers’ Compensation (CHSWC) held a virtual meeting. On the agenda was a presentation by RAND on its preliminary research report entitled, “Posttraumatic Stress in California’s Workers’ Compensation System, A Study of Mental Health Presumptions for Firefighters and Peace Officers Under Senate Bill 542.” That is a long title for a long draft. The draft weighs in at a tome-worthy 247 pages.  There is also a summary, aka “Research Brief” and slide deck of the presentation made at the meeting. All of these are available at the Commission’s website. Can CliffNotes® be far behind?

The background of this study is a request from the Assembly Insurance Committee and its Chair Tom Daly (D-Anaheim) asking CHSWC to study issues surrounding Senate Bill 542 (Stern). This 2019 legislation created a presumption of compensability for post-traumatic stress disorder (PTSD) suffered by firefighters and public safety officers as specified in the bill. The presumption sunsets in 2025 and, presumably, the CHSWC (RAND) study will help inform the decision on whether to reenact this law before it expires.

It is fair to say that the RAND report received somewhat of a rocky reception at the Commission. This is borne out by the unusual step three Commissioners took to make public comments on the drafts on the Commission’s webpage offering up the reports for community comments. People wishing to offer their own opinions may do so until November 4. The Commissioners’ comments can be broadly described as criticisms of the methodology as described by RAND and the very small sample size of respondents interviewed as part of the information gathering process.

While legitimate, it also avoids the bigger picture. First, a correction of the historical record. RAND opines that the requirement of an employer paying the first $10,000 of medical treatment (Labor Code § 5402) while investigating a claim was added by Senate Bill 863 (De Leόn) in 2012. No, it was added in Senate Bill 899 (Poochigian) in 2004. That was over 17 years ago.

It brings into sharp focus this observation in the RAND work product: “However, the applicants’ attorneys and workers we spoke to had not been able to access or use these funds, and most did not know about the opportunity.” (p.57)

That inspires confidence, does it not?

Second, the casual references to Labor Code section 3208.3 relating to psychiatric injuries fails as both a lesson in history and in terms of statutory construction. Regardless of the opinions and impressions of stakeholders, there needs to be an acknowledgement of policy decisions made in 1989, 1991, 1993 and 2012 in an effort to provide compensation for legitimate, disabling occupational psychiatric injuries while guarding against fraud and abuse in the system. RAND fails to recognize this.

RAND passes on a bigger question – how a presumption relates to the Legislature’s statement in section 3208.3: “It is the intent of the Legislature in enacting this section to establish a new and higher threshold of compensability for psychiatric injury under this division.” The presumption in SB 542 is arguably intended to shift the burden of proof to the employer who seeks to deny the claim. But what does a presumption accomplish when the Legislature has also said the worker must meet a higher standard of proof?

A few words from RAND on that might be useful.

As would be a more robust discussion of cumulative trauma (CT) claims involving PTSD. Oh, and perhaps a few words on whether public employers (including the State) could negotiate a plan to deal with PTSD with their public safety and first responder members’ unions that would reduce the delays associated with compensability determinations.

But then, this is only a first draft.


Note: The opinions expressed herein may or may not be those of Workers’ Comp Executive. Mark Webb is a former Arizona insurance regulator, insurance company chief compliance officer, and is an expert in corporate governance, risk and compliance. He is the owner of Prop 23 Advisors.