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Police & Firefighter PTSD Claims in Virginia: Code 65.2-107

Law-enforcement officers and firefighters have a higher risk of developing Post-Traumatic Stress Disorder (PTSD) due to workplace exposures. But for years, these claims were difficult to win in Virginia. That changed in 2020, when the General Assembly enacted Code Section 65.2-107.

Here is the part most articles leave out: the statute made it easier for police and firefighters to qualify for workers’ compensation for PTSD and, at the same time, capped what you can collect. A warehouse worker at Amazon who develops PTSD after a forklift accident can receive lifetime medical benefits and up to 500 weeks of wage loss payments. A Chesterfield County police officer with the same diagnosis is limited to 104 weeks of both – and there is a deadline of four years from the traumatic event to receive an award.

You should know that before you file, not after.

What Virginia Code 65.2-107 Covers (PTSD, Anxiety, & Depression)

In my article on PTSD claims, I explained that non-first-responders can win a PTSD claim under one of three legal theories: injury by accident (“sudden shock or fright”), the compensable consequence doctrine, or as an occupational disease. Virginia Code Section 65.2-107 is a fourth route to win a work-related PTSD claim, available only to law enforcement and firefighters. If you are not a covered first responder, those three theories remain your path, and they have no 104-week cap on benefits.

But this statute is not a presumption for police and firefighters like the others found in the Virginia Workers’ Compensation Act for hypertension, heart disease, lung disease, and certain cancers. Unlike those presumptions applicable to other conditions, Code Section 65.2-107 does not establish compensability from the diagnosis alone. You must still prove the statutory connection between the qualifying event and the condition.

Code Section 65.2-107 is broader than PTSD. It also covers workers’ comp for anxiety disorders and depressive disorders that first responders develop after a traumatic event.

Covered First Responders Under Va. Code 65.2-107

“Firefighter” includes salaried firefighters, emergency medical services personnel (EMTs), volunteer firefighters, state and local fire scene investigators, and special forest wardens.

“Law enforcement officer” covers many categories: members of the Virginia State Police; local police departments; sheriff departments; hazardous materials officers with the Department of Emergency Management, Virginia Marine Police, special agents with the Virginia Alcoholic Beverage Control Authority, police officers with the Norfolk Airport Authority, campus police at public colleges, and officers of the Virginia Port Authority police.

If your job title does not fall within one of the categories, Code Section 65.2-107 does not cover you. You may still have a claim under the other three theories – and, as explained below, that may leave you better off than the first responders the statute was written for.

Qualifying Traumatic Events Under Virginia Workers’ Comp Law

A “qualifying event” under the PTSD statute for police and firefighters is one that:

  • Results in serious bodily injury or death to any person or persons
  • Involves a minor who has been abused, injured, killed, or exploited
  • Involves an immediate threat to their life or the lives of others
  • Involves mass casualties (for example, the 2019 Virginia Beach shooting, the 2007 Virginia Tech shooting, or a motor vehicle crash that harms multiple drivers or passengers)
  • Involves responding to crime scenes to investigate

What does not qualify. The statute also describes events that do not qualify for coverage. Police and firefighters cannot receive workers’ compensation benefits for PTSD resulting from disciplinary action, layoff, demotion, promotion, termination, retirement, or an annual review. If you were disciplined or reassigned after the traumatic event, expect the defense to muddy the waters and argue that your demotion or reassignment caused your mental health condition.

5 Legal Elements to Prove a Virginia Police or Firefighter PTSD Claim

As a police officer or firefighter seeking benefits for PTSD, you must prove these five elements:

  • A qualifying mental health professional examined you and diagnosed PTSD, anxiety disorder, or depressive disorder from a qualifying event.
  • Your medical condition resulted from acting in the line of duty. Firefighters have an additional requirement: you must also have complied with federal Occupational Safety and Health Act standards found in 29 C.F.R. 1910.134 (respiratory protection) and 29 C.F.R. 1910.156 (fire brigades).
  • The qualifying event was a substantial factor in causing your mental health condition.
  • The qualifying event – and not another event or source of stress – is the primary cause of the condition.
  • The condition did not result from a personnel decision.

Elements three and four are separate tests, and defense counsel will litigate them separately, depending on your case’s facts. For more on how the Commission evaluates a causal connection, see my article on proving causation in Virginia workers’ compensation claims.

Required Medical Qualifications for Code 65.2-107 PTSD Claims

A board-certified psychiatrist or a licensed psychologist with experience diagnosing and treating PTSD can diagnose you. They must use the diagnostic criteria in the American Psychiatric Association’s most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM). The APA is currently on its fifth edition (text revision).  

You can avoid a defense that your diagnosis comes from an unqualified medical provider by confirming your provider’s credentials. If you received the diagnosis from a licensed clinical social worker or a primary care doctor, ask them to refer you to a psychologist or psychiatrist to confirm the diagnosis.

The statute also requires your mental health professional to comply with workers’ compensation guidelines, including the release of past and contemporaneous medical reports. Some mental health providers balk at this, but it is required. The employer and insurer may use these records to pin your PTSD on a non-work-related condition.

We have helped many law-enforcement officers and firefighters overcome this defense. In some cases, this meant asking the supervising doctor of the social worker or nurse practitioner to sign a letter endorsing the opinions. In others, it meant sending the first responder to an independent medical examiner. Finally, a medical records review from an independent doctor can also bolster the evidence and help you overcome this evidentiary hurdle.

Virginia PTSD Benefits for First Responders and the 104-Week Wage/Medical Cap

If you satisfy all the elements, you can receive the following under Code Section 65.2-107:

But these benefits have limits.

You can only receive a maximum of 104 weeks of TTD and TPD combined. This same 104-week cap applies to medical benefits.

Additionally, you cannot receive an award of these benefits more than four years from the date of the qualifying event. Ordinary statutes of limitations for injury by accident and occupational disease claims still apply.

What you do not get: Permanent partial disability (PPD) benefits are not available. There are two reasons. First, Code Section 65.2-107 does not list PPD as an available benefit. Second, Code Section 65.2-503 compensates permanent loss of use of a scheduled body part, and a psychological injury or condition standing alone is not covered.

Other Benefits Available to First Responders

Yes, indirectly.

Employers of law-enforcement officers or firefighters must provide peer support to you or refer you to a mental health professional if you ask for one.

Additionally, fire basic training programs must provide training on resilience and self-care techniques.

Does Code Section 65.2-107 Displace Other PTSD Claims: What Millner Decided

The case below is why the 104-week cap matters so much.

In Millner v. The City of Lynchburg, JCN VA00001903365 (July 10, 2023), the Virginia Workers’ Compensation Commission held that Code Section 65.2-107 provided the exclusive remedy for a covered firefighter’s PTSD claim.

The firefighter had sought benefits for PTSD as a compensable occupational disease. The Commission ultimately rejected that approach and held that Virginia Code Section 65.2-107 was the sole legal theory to consider, which limited the claimant’s benefits to the applicable cap.

The practical takeway: if Code Section 65.2-107 applies to your PTSD claim, you generally cannot avoid its benefit caps by pleading the same PTSD as an occupational disease. I suspect the Commission would make a similar finding if you categorize the PTSD as an injury by accident. Whether the statute applies is therefore a critical question at the beginning of the claim and during workers’ compensation settlement talks.

Secondary PTSD Exception: Physical Injury vs. Code 65.2-107 Caps

Millner addressed a psychological condition claimed on its own. It does not necessarily reach a different situation: a police officer or firefighter with compensable physical injuries whose PTSD flows from the injury itself.

For example, take a firefighter with burn injuries who later develops PTSD.

That firefighter may have a valid claim under the doctrine of compensable consequences, because a compensable injury, not a qualifying event, caused the condition. If so, the 104-week cap should not apply.

Expect employers and insurers to argue otherwise. For a first responder with both a serious physical injury and PTSD, depression, or anxiety, this distinction is the difference between 104 weeks of benefits and a lifetime medical award. On a case involving disabling PTSD, that is six figures.

Settlement Value Estimates for Virginia First Responder PTSD Claims

In my article on PTSD workers’ comp settlements, I explain that PTSD claims without an accompanying bodily injury often settle between $60,000 and $115,000. These numbers, however, may not survive the cap. Time will tell.

The reason is exposure. An insurer or self-insured local government settles based on what it may have to pay if the claim stays open. On an uncapped claim, that includes open-ended psychiatric treatment and up to 500 weeks of wage loss. Under this statute, the carrier’s exposure is less.

I have settled PTSD claims under Code Section 65.2-107 for $20,000 to $90,000. Before it took effect, I settled multiple PTSD claims for police and firefighters for more than this range.

If you have a serious physical injury alongside PTSD, the numbers above are the wrong benchmark.

Being Covered Is Not Always Good News

Code Section 65.2-107 exists because Virginia’s courts had made PTSD claims for police and firefighters nearly impossible to win.

The Court of Appeals of Virginia’s decision in Hess v. Virginia State Police, Record No. 0603-17-2 (Nov. 14, 2017), seems to have been the final straw that ultimately led to the enactment of the statute. In Hess, the claimant sought benefits for PTSD after investigating a shocking and gruesome accident scene. The court, however, affirmed the Commission’s denial on the basis that Hess had received fatal accident and crash scene reconstruction training and had done the work before. Taken to its logical conclusion, no trained first responder could ever recover for PTSD, because the job involves encountering horrible scenes.

The General Assembly’s response addressed that problem by making it easier to receive workers’ comp as a police officer or firefighter. But it did so at a cost.

Coverage under Code Section 65.2-107 is not an extra option beyond what every other Virginia worker has. That means workers outside the job-title list may end up in a stronger position: 911 dispatchers, correctional officers, EMTs employed by private ambulance companies, and hospital security. A hospital security guard who develops PTSD after detaining a patient experiencing a psychotic breakdown could get lifetime medical benefits and up to 500 weeks of wage loss. If he meets the higher evidentiary burden, his claim is worth more. I'm not saying you should want to fall outside the statute - for many claimants, the easiest path to compensability is the right one. But whether you are covered is a question with real money attached.

The 104-week cap creates a two-tier system that penalizes the people the statute is meant to help. A nurse with PTSD due to the COVID pandemic can pursue lifetime medical benefits and up to 500 weeks of wage loss benefits. A firefighter in Hampton with PTSD from a mass casualty scene gets 104 weeks of both. The group of workers with the highest occupational exposure to psychological trauma receives the least coverage for it.

The four-year bar to receive an award is at odds with the reality of delayed-onset PTSD. In Alpy v. Loudoun County, JCN VA00000317114 (June 22, 2015), the Commission held that the DSM does not require that PTSD signs and symptoms occur within a fixed period. But this statute seems to bar claims when symptoms arise five years after the qualifying event.

The statute points toward a single qualifying event. Commission case law recognizes that cumulative-trauma PTSD is compensable. The statute does not. Whether an officer with exposure across hundreds of car crash scenes – none of which was the primary cause – can satisfy all the elements is an open question.  

What To Do Now

If you are a Virginia police officer or firefighter with a PTSD, anxiety, or depressive disorder diagnosis, do these three things first:

  • Tell your employer about the diagnosis and the specific qualifying event, in writing.
  • Get evaluated by a qualified mental health provider.
  • Determine whether you qualify for work-related VRS disability, Social Security Disability Insurance (SSDI), or Long-Term Disability (LTD) benefits. These benefits may offset your workers’ comp payments; however, a workers’ compensation settlement can allocate the funds in a manner that puts more money in your pocket.

Call (804) 251-1620 or request a free case review.

Tell me what happened, and I can tell you whether you have a valid claim under Code Section 65.2-107. I spent the early part of my career defending insurers and local municipalities, and I know how to build the strongest case possible for you.