Washington Appeals Court Rejects Retroactivity of 2018 PTSD Comp Law

The Washington Court of Appeals has ruled against a former firefighter who was seeking workers compensation benefits for PTSD. Frank Shaw served as a firefighter-paramedic from 1989 to 2007 with Kittitas Valley Fire & Rescue, an entity that ultimately became Kittitas County Fire and Rescue.

The court explained the facts as follows:

• In 2010, Mr. Shaw was diagnosed with posttraumatic stress disorder (PTSD) that, according to his treating psychiatrist, was triggered during Mr. Shaw’s work with the agency.
• In 2015, Mr. Shaw filed a workers’ compensation claim with the Department of Labor and Industries based on his PTSD diagnosis.
• The Department rejected his claim because, at the time, claims based on stress-induced mental conditions were not covered by law.
• Mr. Shaw appealed, but voluntarily dismissed his appeal in late 2015.
• On June 7, 2018, the laws in Washington changed, to allow for occupational disease claims resulting from PTSD for certain firefighters.
• Mr. Shaw filed a new workers’ compensation claim for his PTSD based on the 2018 statutory amendment.
• His claim was again rejected, but this time it was based on the Department’s determination that the amendment did not cover Mr. Shaw because it did not apply to PTSD claims that manifested “prior to the presumptive date of June 7, 2018.

Shaw filed suit challenging the Department of Labor and Industries determination, contending the law should be applicable retroactively. The court of appeals rejected his arguments explaining the law related to retroactivity of statutes as follows (citations and quotation marks removed for purposes of clarity):

• Mr. Shaw and the Department dispute whether the amendments are retroactive and therefore apply to claims that manifested prior to the 2018 amendments.
• A statute is presumed to operate prospectively unless the legislature indicates that it is to operate retroactively.
• This presumption can only be overcome if (1) the legislature explicitly provides for retroactivity; (2) the amendment is curative; or (3) the statute is remedial.
• Mr. Shaw does not claim that the 2018 amendments are curative.
• Thus, the only issues are whether the legislature has explicitly provided for retroactivity or whether the amendments are remedial.
• Looking first to the retroactivity test, the legislature did not adopt any language explicitly providing for retroactivity.
• Mr. Shaw argues that the legislature’s choice of various adjectives and verbs reveal retroactive intent. We reject this reasoning.
• An explicit choice as to retroactivity is not one that turns on analyzing subtle textual clues.
• The legislature is well aware that it must make an explicit declaration if it intends a statute to have retroactive effect.
• It is accustomed to passing statutes with clear and explicit statements as to retroactivity.
• But no explicit statement was made here. Mr. Shaw’s arguments to the contrary fail.
• The remedial test also fails. A statute is remedial for retroactivity purposes if it relates to practice, procedure, or remedies and does not affect a substantive or vested right.
• A statute is not remedial if it provides a litigant with a new substantive right that was not previously available.
• Here, Mr. Shaw is arguing for retroactivity because he seeks benefits that were unavailable prior to the 2018 amendments.
• This is a quest to vindicate a substantive right. It is not merely a request for a retroactive procedure or remedy.
• We therefore cannot conclude the 2018 amendments were remedial.

Here is a copy of the decision: