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Presumption laws vary by state, with some states allowing mental injuries to be included in a claim only if there is a physical injury, and some only applying to first responders with post-traumatic stress disorder, such as police officers, firefighters and, in some states, emergency medical personnel.
The purpose of presumption laws, now in more than a dozen states, “is to remove the stigma associated with filing a psychiatric injury claim for post-traumatic stress disorder,” said Vicki Lindquist, partner in the Oakland, California office of Laughlin, Falbo, Levy & Moresi LLP. “The goal is to help get these claims accepted and to give people the treatment they need, to recover sufficiently to get back to their work and to their lives,”
The laws are typically directed towards firefighters and police officers, “because they are the protectors of our communities, and they are also, more than the general public, exposed to a lot of trauma and tragedy,” she said.
While presumption laws did have the intended effect of encouraging people to file claims, the claims are not always accepted. “The presumption itself does not require the employer to accept it,” Ms. Lindquist explained. “But because it basically removes the claimant’s burden of proof, for an employer to deny these claims, they must have some information that would suggest the injury would not be related to their work.”
The pandemic has also added fuel to claim activity, said Omar Behnawa, managing partner of the Anaheim, California office of Laughlin, Falbo, Levy & Moresi LLP. In the case of COVID-19, he said, “if there is an outbreak in the workplace and someone tested positive within a two-week period, it’s presumed you contracted the virus through work. And there are psych claims filed because of it.”
He added that “medical examiners are giving credence to some allegations with the pandemic and the stresses people are having to face just going back to the workforce.”