SC may change workers comp law for police, firefighter

abeam@thestate.comMarch 4, 2013 

Brandon Bentley killed a man on Oct. 21, 2009.

Bentley was a Spartanburg County sheriff’s deputy. The man he killed was running at him with a stick, threatening to kill him. Bentley shot the man once in the chest. He died a few hours later.

Bentley has not worked since the shooting. He has tried to kill himself at least twice – once with a knife and another time with pills. At a fall festival with his family shortly after the shooting, he heard a balloon pop, dropped to the ground and reached for his gun. Luckily for him – and everyone else – he didn’t have one.

Bentley has post-traumatic stress disorder, and South Carolina does not know what to do with him.

He collects police disability retirement pay. But his workers compensation claim was denied because the state Supreme Court ruled that, for a police officer, shooting someone is not “extraordinary or unusual” – the standard that workers must meet under S.C. law to be awarded workers compensation payments for mental injuries.

But in writing its opinion last year, the court urged lawmakers to change the state’s workers compensation law. Lawmakers are trying to do that.

Last week, the House Judiciary Committee approved a bill that would exempt public safety workers – police officers, firefighters, corrections officers and emergency medical technicians – from the “extraordinary and unusual” standard. The bill, sponsored by state Rep. Tommy Pope, R-York, has bipartisan support.

However, local governments oppose it, arguing that relaxing the requirements to draw workers compensation would burden local governments with lots of expensive claims at the same time they are dealing with budget cuts.

They say public safety workers have other options if they have mental disabilities, including drawing disability retirement and Social Security disability payments. And they point to California, which has been strengthening its workers compensation laws after its courts were overrun with claims of mental injuries.

But law enforcement officials see a bigger issue.

“Killing people is the last thing we want to do. And it is always the last resort,” said Jeff Moore, executive director of the S.C. Sheriff’s Association. If killing someone is not extraordinary, then “no law enforcement officer in South Carolina will ever be eligible for workers comp.”

‘Your heart don’t feel’

Bentley, 34, has a complicated relationship with law enforcement.

The son of a fire chief in Clinton, he grew up surrounded by police officers and firefighters. He called becoming a cop his dream job. From the beginning, however, he had difficulty seeing some of the things that police officers see.

“When you are sitting there on a crime scene – four people that have been murdered, and it’s raining and the blood is running in the tip of your boot, and you are sitting there eating a sausage biscuit – you’re numb,” he said in an interview. “Your heart don’t feel because you don’t want it to feel.”

But Bentley says it was the shooting that pushed him over the edge. After the shooting, he collected long-term disability pay from the Spartanburg County Sheriff’s Department, where he worked at the time of the shooting. But he did not qualify for extended health benefits, he said.

He lost 70 pounds after the incident. He sold all of his guns. He separated from his wife. And he says he does not feel safe in his own house, constantly patrolling to make sure his doors and windows are locked.

“For some reason, even though I know this guy is dead, I feel as though he is going to kill me. I can’t explain that,” Bentley said, according to a transcript of his workers compensation hearing.

Everyone reacts differently to trauma, including police officers, said Robert Stewart, a law enforcement lobbyist who was the chief of the State Law Enforcement Division for 20 years.

Stewart had “two agents shot within 30 feet of me on separate occasions,” he recalled, and he has been shot at with “7mm mags,” adding, “That’s what you shoot an elephant with.” Yet Stewart has not had significant mental-health issues as a result of his experiences.

But he has seen their effect on others.

As SLED chief, Stewart said he made his agents get counseling if they were involved in something Stewart deemed to be a “critical incident.”

“It’s tough to get police to go get help,” he said. “They think there is a stigma to it and it shows weakness.”

‘Double-dipping, in essence’

There are three types of work-related injuries that can qualify for workers compensation payments: physical injuries, mental injuries accompanied by physical injuries and mental injuries with no physical injuries.

That last type is the hardest to prove.

Most states allow compensation for mental injuries. But S.C. workers have to meet a higher standard. There must be medical evidence of the mental injury, and it has to be the result of “extraordinary and unusual” conditions.

That standard, when applied to police officers, means shooting someone is not “extraordinary and unusual,” but “standard and necessary,” according to the state Supreme Court’s ruling.

But that standard only applies to mental injuries.

In a dissenting opinion, Justice Kaye Hearn wrote: “I find it difficult to fathom, let alone countenance, a rule which would allow Deputy Sheriff Bentley to recover workers’ compensation if he had tripped and fallen and injured his leg while drawing his gun on this suspect, yet does not permit him to recover for the very real mental trauma he undeniably suffered by shooting and killing the man.”

The majority of the court agreed with Hearn, but said its hands were tied because of the law. The majority opinion even encouraged lawmakers to change the law, eliminating the “extraordinary and unusual” language.

Bill Shaughnessy, a Greenville-based workers compensation attorney, says that would be a terrible idea.

Sixty percent of workers compensation claims filed against cities and counties are from police officers and firefighters, he said, quoting statistics from the Municipal Association of South Carolina.

Shaughnessy said public safety workers have their own retirement system and are eligible for retirement disability pay, which, he said, “in many circumstances is 50 to 60 percent of their pay.” Workers compensation would pay an additional two-thirds of the employee’s average weekly wage.

“So the public is paying, then, 112 percent of what they would make if they were working,” Shaughnessy said, adding police and fire disability benefits are the only benefits that he knows of that are not offset by workers comp payments. “These police and fire(fighters) are going to be double-dipping, in essence.”

In denying Bentley workers compensation, the state Supreme Court urged lawmakers to change the law, arguing South Carolina would not see a flood of frivolous claims because S.C. law also requires “medical evidence.” But the S.C. Association of Counties disagrees.

“We’re still using the tests and diagnostics from the ’60s,” said Robert Croom, the association’s deputy general counsel. “There is no way to take an MRI or an X-ray or run a blood test and say, ‘Yes there is a genuine mental illness here.’ ”

‘No, it’s not better’

Bentley now lives in Myrtle Beach, where he spends time doing yard work and building birdhouses.

But “to say that it’s better? No, it’s not better. I’m 34 years old, and I haven’t slept in my bed since 2009 because I don’t know when I’m going to piss on myself because of the nightmares,” he said.

His case won’t be the last in South Carolina.

In 2005, Raquel Martinez – a forensic investigator and 28-year veteran of the Spartanburg County Sheriff’s Department – investigated the death of a 2-year-old girl who accidentally was run over by her police-officer father as he was backing his patrol car out of the driveway.

Martinez worked the scene by the book, just as she said she had done countless times in her career. But, four months later, her father found her in the bushes in her front yard, looking for an imaginary “little girl” that Martinez said she was going to take on a trip.

Martinez was diagnosed with post-traumatic stress disorder, and she, too, was denied workers compensation.

Her case is pending before the state Supreme Court.

Reach Beam at (803) 386-7038.

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