For many years in Virginia, police and firefighters were unable to obtain workers’ compensation benefits for a psychological injury despite the fact that the injury undeniably arose from employment. In 2020, the Virginia General Assembly enacted a statute that the law’s supporters believed would make things better for police and firefighters. The statute’s effect has been a mixed bag at best.
A fundamental principle of Virginia workers’ compensation law is that an injury by accident at work is compensable only if the accident arose from an “actual risk” of employment. A recent decision of the Court of Appeals of Virginia describes the actual-risk test as follows: “Hazards to which the general public is equally exposed are non-compensable. To recover, an employee must prove that the employment activity exposed him or her to the injurious risk to an extent to which members of the general public were not ordinarily exposed, and thus caused the injuries.”
It is fair to say that police and firefighters — precisely due to their work — often see gruesome things that members of the general public mercifully rarely see. These awful sights are thus an actual risk of employment for police and firefighters under the “actual risk” test described above.
It is not unusual for police and firefighters to experience some type of psychological injury due to the things they witness. An award of workers’ compensation benefits would thus seem straightforward because the injury arose from an actual risk of employment. Still, the Virginia Workers’ Compensation Commission said, “No” to such claims for many years.
In Hess v. Virginia State Police, a state trooper developed PTSD after observing a body that had been thrown from one vehicle and then struck and dragged by another vehicle. The Commission denied the trooper an award of benefits because his “occupation expressly entail[ed] investigating violent accident scenes and witnessing graphic events, including severe human injuries and death.” Thus, he could not receive benefits precisely because his job heightened his risk of witnessing such things. The Court of Appeals of Virginia affirmed the Commission’s denial.
A key feature of the principle the Commission used in Hess was that it applied only to a claim for psychological injury which was unaccompanied by physical injury. For example, if the trooper in Hess had suffered both a physical injury at the accident scene (such as a cut that required medical attention) and then developed PTSD afterwards due to the experience of seeing the body, he without question would have received an award of workers’ compensation benefits for both the physical injury and the PTSD. Also, the PTSD award would have provided benefits for as long as he required treatment for PTSD.
The 2020 statute reverses the result the Commission and Court of Appeals reached in Hess. The fact that a police officer or firefighter’s work includes a heightened chance of seeing gruesome sights is no bar to a workers’ compensation award for psychological injury which results from such exposure. On the other hand, the statute limits benefits for psychological injury to only 52 weeks of treatment. Moreover, the Commission has ruled that the 52-week limitation for psychological treatment applies to any psychological injury, i.e., even cases in which the claimant has both a physical and psychological injury.
The end result of the 2020 statute is (i) a relatively modest improvement of the law applicable to those who have a psychological injury without a physical injury and (ii) a drastic contraction of the law applicable to those with both a physical and psychological injury.
The discussion above illustrates that the law is both complicated and ever evolving. We thus believe your best chance at obtaining a workers’ compensation award in any type of case is to retain an experienced workers’ compensation lawyer.